In the pandemic’s early days, the American judiciary largely gave governors wide leeway in issuing unprecedented business-closure and stay-at-home orders in order to dampen the spread of the disease. More recently, some judges, concerned by the scope and duration of those orders, have taken steps to enforce constitutional limits on executive power. Last May, in response to the several dozen lawsuits that had been filed at that time demanding justification for drastic quarantine measures, a colleague at Pacific Legal Foundation wrote , “the longer the lockdowns go on and the less necessary that they seem, the more scrutiny we can expect courts to apply.” Now, the number of lawsuits filed has mounted into the hundreds, and several recent opinions—from a state Supreme Court, a federal district court, and among dissenting justices at the U.S. Supreme Court—have begun to engage a more serious discussion about the limits of those emergency powers. The most recent of these decisions (issued earlier this month), Midwest Institute of Health, PLLC v. Whitmer , overturned some of Michigan governor Gretchen Whitmer’s emergency orders on the grounds of the separation of powers. The case was originally brought in federal court by a group of “non-essential” health-care […]
