David Kott of McCarter & English, representing the New Jersey Business & Industry Association, presented oral arguments in the U.S. Court of Appeals for the Third Circuit last week in support of a lower court decision addressing the constitutionality of Pennsylvania’s COVID-19 emergency orders
Because New Jersey falls under the jurisdiction of the Third Circuit, the court’s decision will create precedent for the Garden State — thus making it a case that could define the limits of New Jersey’s executive power in response to a pandemic.
In this case, Pennsylvania Gov. Tom Wolf, a Democrat, was appealing a district court decision in 2020 that declared certain COVID-19 emergency orders were unconstitutional, including the extended closure of nonessential businesses.
Kott argued that, while a state’s chief executive should have broad powers to act to protect public health during an emergency, those powers are not unlimited and must be subject to constitutional limitations.
“Even during a pandemic, businesses and individuals do not give up their constitutional rights,” Kott said. “It is important that pandemic orders treat all businesses and individuals equally and be rationally related to the goal of ending the pandemic.”
“We are hopeful that our courts will preserve constitutional rights, even during a pandemic or other natural disasters.”
The state of New Jersey filed an amicus brief on behalf of the state of Pennsylvania. (still confirming this)
The district court’s decision, along with similar challenges levied to business shutdown orders nationwide, implicates a 115-year-old Supreme Court decision (Jacobson v. Massachusetts) that some state governments have argued grants nearly unbridled discretion to a state’s executive in responding to a public health emergency.
NJBIA, as an amicus to the case, has argued that the Third Circuit should “not adopt the one-size-fits-all test” premised on that decision, following “a century of nuances developed by the United States Supreme Court and the Third Circuit in order to ensure that the rights enshrined are adequately protected.”
On Thursday, Kott said the Jacobson v. Massachusetts decision set an “extraordinarily deferential standard” and that three tiers of legal scrutiny — rational basis, intermediate scrutiny and strict scrutiny — “did not exist at the time of that decision.”
All arguments in the case are complete. It’s uncertain when the Third Circuit will render a final decision.
