The coronavirus pandemic is impacting virtually every aspect of our lives, transforming the way people interact, businesses operate, and institutions function. The response to the pandemic is also raising numerous constitutional dilemmas. National emergencies—such as World War II, the Great Depression, and 9/11—have always done this. However, the coronavirus is set to test our Bill of Rights more broadly than any other event in recent memory.

An analysis of the coronavirus's impact on constitutional law could fill the pages of a book. This article surveys just some of the ways in which government responses to the virus pose thorny issues under the First, Second, Fourth, Fifth, Sixth, Eighth, and Tenth Amendments. Many of these issues are already being litigated; others loom on the horizon. By the time the coronavirus is placed under control, which could be months or even years from now, its effect on constitutional jurisprudence—like its effect on nearly all facets of society—will likely be profound.

Stay-at-Home Orders

Over the last several months, normally busy streets and public spaces have been deserted as people throughout the country are confined to their homes under stay-at-home orders designed to stop the spread of the coronavirus. Although stay-at-home orders are now beginning to ease, nearly every state has issued some sort of order shutting down non-essential businesses and placing restrictions on public gatherings. The orders vary by state, and their definitions of "essential" businesses are not uniform nor always clearly defined. Some states have issued blanket prohibitions on mass gatherings, while others have included exemptions with an eye towards avoiding constitutional battles.

Takings and Due Process. Stay-at-home orders have prompted a number of constitutional challenges on various grounds, including the Fifth Amendment, which mandates payment of "just compensation" when federal or state authorities take "private property" for "public use," and guarantees that no person shall be deprived of property without due process of law. A government regulation can amount to a taking if it is "so onerous that its effect is tantamount to a direct appropriation or ouster." Lingle v. Chevron U.S.A., 544 U.S. 528, 537 (2005).

One of the more noteworthy Fifth Amendment challenges was brought in Pennsylvania by four businesses seeking to vacate the state's stay-at-home order in its entirety, arguing that forced closure of "non-life-sustaining" businesses amounted to an unconstitutional taking and deprivation without due process. See Friends of Danny DeVito v. Wolf, 2020 WL 1847100 (Pa. April 13, 2020). The Supreme Court of Pennsylvania rejected the businesses' claims. Relying on Tahoe-Sierra Pres. Council v. Tahoe Reg'l Planning Agency, 535 U.S. 302 (2002), the court held that there was no unconstitutional taking because Pennsylvania's stay-at-home order was temporary. The court also found that the businesses' forced closure did not deprive their owners of due process. Under the stay-at-home order, businesses classified as non-life-sustaining could petition for reclassification. The court held that this summary administrative procedure provided sufficient process given the emergency circumstances, the temporary nature of the restrictions, and the difficulty of providing anything close to full evidentiary hearings to all businesses challenging their non-life-sustaining designation.

The businesses appealed to the U.S. Supreme Court and sought an emergency stay of the Pennsylvania order. The Supreme Court denied the requested emergency relief without decision, but the petition for a writ of certiorari remains pending.

Although there have been at least two other unsuccessful Fifth Amendment challenges to stay-at-home orders (see Hartman v. Acton, 2020 WL 1932896 (S.D. Ohio April 21, 2020), and SH3 Health Consulting v. Page, 2020 WL 2308444 (E.D. Mo. May 8, 2020)), some plaintiffs have obtained victories. In Roberts v. Neace, 2020 WL 2115358 (E.D. Ky. May 4, 2020), the court preliminarily enjoined enforcement of executive orders banning interstate travel because the ban was not narrowly tailored. And two lawsuits in Michigan (Mich. United Conservation Clubs v. Whitmer, No. 20-cv-00335 (W.D. Mich.), and Mich. Nursery & Landscape Ass'n v. Whitmer, No. 20-cv-331 (W.D. Mich.)) were mooted when the Governor modified the state's stay-at-home orders to permit the conduct at issue.

Freedom of Religion and Assembly. Religious groups in states whose stay-at-home orders lack religious exemptions have called on courts to compel such exemptions under the First Amendment. For the most part, courts have declined to do so, concluding that statewide bans on public gatherings pass constitutional muster even if they are applied to places of worship.

The First Amendment does not prohibit all laws that impair religious freedom. Generally applicable and neutrally applied laws that incidentally restrict religious exercise need only be rationally related to a legitimate government interest. The distinction between essential and non-essential businesses has been held to be rational and neutrally applied where the former, such as grocery stores and hospitals, help ensure survival and physical well-being. As courts have noted, in-person religious services do neither. Moreover, unlike most "essential" activities, religious services can be held remotely. In addition, in-person religious services, unlike, for example, grocery shopping, involve extended periods of congregation, which increase the potential for transmission of the coronavirus. Such rational, neutral justifications have led several courts to deny injunctive relief to parties challenging bans on in-person religious services. See, e.g., S. Bay United Pentecostal Church v. Newsom, No. 20-55533 (9th Cir. May 22, 2020); Roberts v. Neace, 2020 WL 2115358 (E.D. Ky. May 4, 2020); Legacy Church v. Kunkel, 2020 WL 1905586 (D.N.M. April 17, 2020); Gish v. Newsom, 2020 WL 1979970 (C.D. Cal. April 23, 2020); Tolle v. Northam, 2020 WL 1955281 (E.D. Va. April 8, 2020).

At least two courts, however, have restrained (temporarily) state orders restricting religious services. In First Baptist Church v. Kelly, 2020 WL 1910021 (D. Kan. April 18, 2020), churches and church leaders in Kansas successfully challenged an executive order prohibiting religious assembly by more than 10 congregants. The court held that the order was not neutrally applied because it treated various secular gatherings (including at offices, airports, childcare locations, hotels, retail establishments, public transportation, and job centers) more leniently. Employing similar reasoning, the Sixth Circuit, in Maryville Baptist Church v. Beshear, 957 F.3d 610 (6th Cir. 2020), preliminarily enjoined Kentucky officials from enforcing bans on drive-in religious services. However, the court declined to extend the injunction to bans on in-person services (despite plaintiff's likelihood of succeeding on this issue), noting the heightened public health concerns.

Right To Bear Arms. Stay-at-home orders have also prompted lawsuits in numerous states (including New York, New Jersey, Pennsylvania, Massachusetts, Michigan, California, Texas, and Virginia) by gun-related businesses, gun owners, and gun rights organizations arguing that gun stores must be permitted to operate in order to preserve the Second Amendment right to bear arms. The demand for guns has skyrocketed since the pandemic hit, and that demand will likely continue to increase if people fear a breakdown of law and order due to rising unemployment, civil unrest, and an overwhelmed criminal justice system, and/or if they fear an attack on their civil liberties by government authorities wielding emergency powers. Although federal guidelines have designated firearm and ammunition retailers as "essential" services, those guidelines are merely advisory, and many states have declined to follow them as they close businesses deemed non-essential in order to combat the coronavirus.

These Second Amendment challenges have had mixed success so far. Compare Brandy v. Villanueva, 20-CV-2874-AB (C.D. Cal. April 6, 2020) (denying plaintiffs' TRO motion to enjoin enforcement of local orders requiring closure of gun stores); McDougall v. County of Ventura, California, 20-CV-2927-CBM-AS (C.D. Cal. March 31, 2020) (same), and Pennsylvania Civil Rights Defense Firm v. Wolf, No. 63 MM 2020 (Pa. Sup. Ct. March 23, 2020) (ruling 4-3 against emergency challenge to state-mandated closure of gun stores), with McCarthy v. Baker, 20-cv-10701-DPW (D. Mass. May 7, 2020) (preliminarily enjoining closure of gun stores), and Lynchburg Range & Training v. Northam, No. CL20-333 (Cir. Ct., City of Lynchburg April 27, 2020) (temporarily enjoining closure of gun ranges pursuant to statute prohibiting Governor from "in any way limit[ing] or prohibit[ing] the rights of the people to keep and bear arms"). Although courts have differing views regarding the constitutionality of forcing gun stores to close, they generally agree that the issue should be analyzed under intermediate scrutiny, which requires a substantial government objective and a reasonable fit between that objective and the challenged regulation. This is notable because the Supreme Court's landmark decision in District of Columbia v. Heller, 554 U.S. 570 (2008), left open the precise level of scrutiny applicable to a law that burdens Second Amendment rights, other than to indicate that rational basis review would not apply.

Criminal Justice

As the coronavirus spreads through crowded jails and prisons—sites that are not designed to accommodate social distancing or to combat public health emergencies—many inmates have sought release on the grounds that their confinement violates the Eighth Amendment's prohibition against cruel and unusual punishment, the Fifth Amendment's due process guarantee, and/or the Sixth Amendment's right to counsel.

The Eighth Amendment requires that prison officials "take reasonable measures to guarantee the safety of the inmates." Farmer v. Brennan, 511 U.S. 825 (1994). However, an Eighth Amendment violation is notoriously difficult to establish: prisoners must first show that, objectively, they have serious medical needs; they must then prove that, subjectively, prison officials acted with deliberate indifference to those needs.

The Fifth Circuit, for example, has now twice stayed Eighth Amendment-based injunctive relief granted to prisoners in the coronavirus context. See Valentine v. Collier, 2020 WL 1934431 (5th Cir. 2020); Marlowe v. LeBlanc, 2020 WL 2043425 (5th Cir. 2020); see also Swain v. Junior, 2020 WL 2161317 (11th Cir. May 5, 2020) (staying injunction). While acknowledging that the virus presents a risk of serious harm to confined persons, the Fifth Circuit nonetheless found that there was no evidence that the prisons' mitigation efforts were objectively deficient. Moreover, the court found no reason to believe prison officials subjectively thought their measures were inadequate. Other courts have similarly refused to find an Eighth Amendment violation even if release of the prisoner was "the rational and right result." United States v. Credidio, 2020 WL 1644010 (S.D.N.Y. April 2, 2020); but see Wilson v. Williams, 2020 WL 1940882 (N.D. Ohio April 22, 2020) (ordering release or transfer of especially vulnerable inmates from one Ohio federal prison); Williams v. Wilson, No. 19A1041 (U.S. May 26, 2020) (denying request for emergency stay of district court injunction). Prisoners in the Valentine case appealed to the U.S. Supreme Court for emergency relief but were denied. In a statement, Justice Sotomayor, joined by Justice Ginsburg, noted that it was not clear the Fifth Circuit was wrong, but emphasized that "in this pandemic, … inmates everywhere have been rendered vulnerable and often powerless to protect themselves from harm [and they] hope[d] that our country's facilities serve as models rather than cautionary tales."

Pretrial detainees have had better success in seeking release. Confinement of those awaiting trial violates due process if it is punitive or if it is not reasonably related to a legitimate, nonpunitive governmental objective such that the intent to punish can be inferred. Bell v. Wolfish, 441 U.S. 520, 538-39 (1979). A number of courts have held that detaining individuals in tightly packed and unsanitary environments during this pandemic constitutes punishment in violation of the Fifth Amendment, thus requiring the detainees' release. See, e.g., Thakker v. Doll, 2020 WL 1671563 (M.D. Pa. March. 31, 2020); Bent v. Barr, 2020 WL 1812850 (N.D. Cal. April 9, 2020); Coronel v. Decker, 2020 WL 1487274 (S.D.N.Y. March 27, 2020); People ex rel. Stoughton v. Brann, 2020 N.Y. Slip Op. 20081 (N.Y. Sup. Ct. April 6, 2020).

Pretrial detainees who have been prevented from communicating with their attorneys due to coronavirus-related access restrictions have also sought release on the ground that their continued confinement unconstitutionally infringes on their Sixth Amendment right to counsel. However, courts have generally rejected this argument, finding the access restrictions at issue reasonable under the circumstances. See, e.g., United States v. Jarquin Rico, 2020 WL 1934989 (S.D.N.Y. April 21, 2020); United States v. Flores-Lopez, 2020 WL 1862599 (W.D. Wash. April 14, 2020); United States v. Robinson, 2020 WL 1820089 (D. Md. April 11, 2020).

Potential Future Litigation

There are a host of other constitutional issues lurking in the distance, waiting to be litigated.

For example, since the coronavirus hit our shores, there has been steady tension between the President and state governors regarding whether, when, and how to impose restrictions to protect public health. President Trump has repeatedly criticized governors who have imposed more restrictive health measures than he thinks necessary. And he has claimed the power to override measures with which he disagrees. Most notably, he has asserted that: (1) he has "total" authority to rescind stay-at-home orders; (2) he "ha[s] th[e] right" to "overrule a governor" when it comes to re-opening schools; (3) he can "override the governors" when it comes to designating places of worship as "essential"; and (4) he gets to make the ultimate "decision to open up the states."

This showdown over "opening up the states" could intensify, with the President and state leaders issuing conflicting directives on the subject. If that occurs, litigation over the relative scope of federal (and, more specifically, presidential) power and state power is possible. States likely have the upper hand, at least to the extent that the directives at issue involve intrastate matters of health and safety. "[T]he states' police powers over matters of public health and safety and to act over the general welfare of their inhabitants is entrenched in the rights reserved to the state under the Tenth Amendment to the United States Constitution." Paher v. Cegavske, 2020 WL 2089813, at *7 (D. Nev. April 30, 2020). Indeed, "the regulation of health and safety matters is primarily, and historically, a matter of local concern." Hillsborough Cnty. v. Automated Med. Labs., 471 U.S. 707, 719 (1985). Thus, the President's power to interfere with states' protection of health and safety is limited, especially if such interference is without clear statutory authority.

Separately, many civil libertarians are concerned about the erosion of individual liberty and personal privacy stemming from the government's coronavirus response, which has included forced quarantining, disease surveillance, and location tracking of those who are infected.

Forced quarantining could be subject to due process challenges if "arbitrary, oppressive and unreasonable," and could run afoul of the Fourth Amendment if probable cause is lacking. See Hickox v. Christie, 205 F. Supp. 3d 579 (D.N.J. 2016). A seizure is reasonable—and thus constitutional—if probable cause exists that an individual could be a danger to others. Given the ease with which the coronavirus is known to spread and the clear public health danger it poses, forced quarantining of those known or suspected to be infected, depending on the facts and circumstances, could certainly be considered reasonable. Courts are generally reluctant to interfere with governmental exercises of police powers in dealing with public health matters.

With respect to surveillance, the CARES Act requires the CDC to report to Congress on "the development of a public health surveillance and data collection system for coronavirus." Before the virus is eradicated, the government may compel third parties, such as cellphone companies, internet platforms, medical-device makers, and healthcare providers, to turn over customers/patients' private information without their consent. Whether these government initiatives will run afoul of the Fourth Amendment—and, in particular, the "third party doctrine" and the "special needs doctrine"—remains to be seen.

The Fourth Amendment protects against "unreasonable searches." As the Supreme Court held in Carpenter v. United States, 138 S. Ct. 2206 (2018), an unreasonable search can occur not only when the government itself gathers sensitive information about people (including their movements over extended periods of time), but also when the government obtains such information from third parties that have lawfully collected it. Under Carpenter, the constitutionality of warrantless surveillance using third-party data turns on the privacy interest in the data and the extent to which that data is voluntarily shared. If medical and technology companies were compelled to turn over sensitive health or location data about their users, that could certainly raise constitutional concerns.

However, the government has increased leeway to conduct surveillance when it is "designed to serve special needs, beyond the normal need for law enforcement." City of Indianapolis v. Edmond, 531 U.S. 32, 37 (2000) (quotations omitted). Although the contours of this "special needs doctrine" are somewhat fuzzy, courts analyzing a coronavirus-related surveillance program would have to balance the government's need for the desired information against individuals' need for privacy. See, e.g., Lynch v. City of New York, 589 F.3d 94, 100 (2d Cir. 2009) (special needs doctrine requires balancing "three factors: (1) the nature of the privacy interest involved; (2) the character and degree of the governmental intrusion; and (3) the nature and immediacy of the government's needs, and the efficacy of its policy in addressing those needs" (quotations omitted)). This balancing test is highly fact-specific, and so will depend on how exactly the government conducts its coronavirus surveillance and data collection.

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As the above discussion demonstrates, the effects of the coronavirus on our legal system have already been extensive. With the pandemic not going away anytime soon, we should expect those effects to multiply in the coming months, if not years.

John Curran is a partner and Jake Gardener and Jeffery Ding are attorneys at Walden Macht & Haran, a litigation firm whose practice areas include constitutional law.