Antietam
Civil Action No. CCB-20-1130
May 20, 2020
MEMORANDUM
The world is now in the grip of a public health crisis more severe than any seen for a hundred years. In the United States, over 1,480,349 people are confirmed to have been infected with coronavirus and over 89,407 people have died from the disease it causes.1 In Maryland, over 41,546 people have been infected and over 1,963 people have died.2
In the face of this pandemic, Governor Larry Hogan, using the emergency powers granted to him by the state legislature, has issued a series of executive orders designed to slow the spread of the disease and protect the health of Maryland residents. In so doing he has consulted with and relied on the advice of acknowledged public health professionals. Based on that advice and the data related to the rate and number of infections and hospitalizations, the Governor of necessity has made extremely difficult choices that affect the economic health of the state and impose restrictions on individual liberties that, in ordinary times, are freely enjoyed by all Maryland residents.
The plaintiffs in this case ask the court to enjoin the Governor‘s orders because of their impact on those individual liberties. But, as the Supreme Court explained more than one hundred years ago: “Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others.” Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 26 (1905). To overturn the Governor‘s orders, those who disagree with them must show that they have “no real or substantial relation” to protecting public health, or that they are “beyond all question, a plain, palpable invasion of rights secured by the fundamental law.”
In these extraordinary times, for the reasons explained below, the plaintiffs have not met their burden. Their motion for a temporary restraining order, treated as a motion for preliminary injunction, has been fully briefed. No oral argument is necessary, and the motion will be denied.3
FACTS AND PROCEDURAL HISTORY
The spread of COVID-19 in Maryland has been rapid since the first case was reported on March 5, 2020. (ECF 26-2,
In response to the COVID-19 pandemic, on March 5, 2020, Governor Larry Hogan issued a Proclamation of Catastrophic Health Emergency, which declared a state of emergency in Maryland, and which was renewed on March 17, 2020, April 10, 2020, and May 6, 2020. (Compl. ¶ 53; Proclamation, Renewal of Declaration of State of Emergency, May 6, 2020). The Governor also issued a series of executive orders prohibiting gatherings of certain numbers of people and ordering the closure of certain businesses, referred to as “stay at home” orders.
This case was filed on May 2, 2020, when the March 30, 2020, executive order was in effect. On May 6, 2020, the Governor issued an amended executive order (EO 20-05-06-01),5 under which individuals were generally required to stay at home (subject to certain exceptions, including conducting or participating in essential activities), gatherings of more than ten people were prohibited,6 and non-essential businesses were required to remain closed.7 But on May 13, 2020, (the day that the plaintiffs filed their reply), the Governor issued an amended order (EO 20-05-13-01). This order still prohibits gatherings of over ten people and orders the closure of certain non-essential businesses, but allows certain outdoor recreation areas and non-essential retail establishments to open, and allows indoor religious services at 50% capacity, subject to certain operating requirements, including complying with social distancing guidance. (EO 20-05-13-01 ¶ III).
The plaintiffs are individuals threatened with arrest if they violate the executive orders or who otherwise object to having to comply; businesses that have been deemed non-essential; and religious leaders whose ability to hold religious services has been affected by the orders. State Delegate Daniel Cox alleges that he was threatened with criminal prosecution if he attended or spoke at a Vehicle-Ride Rally to Reopen Maryland on May 2, 2020, which was to protest the Governor‘s executive orders, because Cox would be violating the prohibition on large gatherings. (Compl. ¶¶ 1, 68). Antietam Battlefield KOA and Adventure Parks USA, LLC have both been deemed non-essential businesses and forced to close, which has caused them to lose substantial amounts of money. (Id. ¶¶ 2, 3, 23, 24, 70). Staff Sergeant Jason Anderson and Lance Corporal Christopher Repogle are veterans who object to the executive orders, particularly the requirement to cover one‘s face when entering a retail establishment, because it reminds them of the battlefield in Iraq. (Id. ¶¶ 4, 5). Anderson has also been prevented from obtaining needed physical therapy and an injection in his back because of the orders closing “non-essential” health clinics. (Id. ¶ 25; ECF 1-4, Aff. of Anderson ¶ 5).8 Plaintiff Reopen Maryland, LLC is a corporation with 22,000 members seeking redress of the alleged ongoing violations of their constitutional rights. (Compl. ¶ 41). Cox and State Delegates Warren Miller and Neil Parrott allege that they have been prevented from freely speaking and meeting with their constituents, campaigning for office (as to Parrott), holding rallies and events, leaving their home except for reasons deemed “essential,” and from ensuring as lawmakers that the laws are not suspended. (ECF 32-3, Decl. of Miller; ECF 32-4, Decl. of Parrott; ECF 32-5, Decl. of Cox).
Reverends Christopher Ogne, James Wickham, Fredrick Caudle, Paul Goodwin, John Seay, Gary Pomrenke,9 Gary L. Cox, Steven Dixon, and Johnny Hudson,10 and Deacon David Serenda object to the executive
The plaintiffs bring this suit against Governor Larry Hogan, Secretary of the Maryland Department of Health Robert Neall, Deputy Secretary of Public Health Frances Phillips, and Superintendent of Maryland State Police Woodrow Jones III. (Id. ¶¶ 42-45). They bring the following claims: violation of the right to free exercise of religion under the
The plaintiffs seek a temporary restraining order (“TRO“) enjoining enforcement of the Governor‘s executive orders. The motion for a TRO also requests that the court expedite a hearing for preliminary injunctive relief. Because the court finds that no hearing is necessary and because the court will treat the motion as one for a preliminary injunction, the court will deny the request to expedite a hearing. Additionally, Americans United for Separation of Church and State has filed a motion for leave to file an amicus brief, which will be granted.12
“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). “The standard for a temporary restraining order is the same as a preliminary injunction.” Maages Auditorium v. Prince George‘s Cty., Md., 4 F. Supp. 3d 752, 760 n.1 (D. Md. 2014), aff‘d, 681 F. App‘x 256 (4th Cir. 2017); see
DISCUSSION
I. Claims to be addressed
The plaintiffs filed a motion for a TRO on May 2, 2020, but without an accompanying memorandum of law. The defendants filed their opposition on May 8, 2020, and the plaintiffs filed their reply on May 13, only addressing some of their claims. For example, the plaintiffs did not discuss the merits of their Establishment Clause, Takings Clause, Guarantee Clause, Equal Protection Clause, and several of their Maryland Declaration of Rights claims. Therefore, the plaintiffs do not appear to base their motion for a temporary restraining order on these claims, and the court will not address them here.13 See Wootten v. Commonwealth of Virginia, 168 F. Supp. 3d 890, 895-96 (W.D. Va. 2016) (“[C]ourts widely agree that parties have the burden to present legal arguments in the first instance,” and collecting cases). The reply also makes reference to the right to travel and to access medical care that is deemed “elective,” (see ECF 32, Reply at 8), but makes no legal arguments as to these claims, so the court will not address them here either. See Ned Chartering & Trading, Inc. v. Republic of Pakistan, 294 F.3d 148, 155 (D.C. Cir. 2002) (court not required to unearth theories and precedents not cited by the parties).
II. Mootness
The plaintiffs’ legal argument regarding their free exercise claim is based on an older version of the executive order, which prohibited all religious services involving gatherings of more than ten people. (See, e.g., Reply at 32). That executive order has been amended to allow in-person indoor religious services at half-capacity. The plaintiffs argue “even though the Governor just lifted the in-person ban of religious services, he stated the emergency continues until a vaccine is found and as such he may reinstitute severe measures such as those he lifted at any time.” (Reply at 32).
“[A] case is moot when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Porter v. Clarke, 852 F.3d 358, 363 (4th Cir. 2017) (citations omitted). “There is, however, a well-recognized exception to the mootness doctrine holding that ‘a defendant‘s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice.‘” Id. (citations omitted). “To that end, ‘a defendant claiming that its voluntary compliance moots a case bears the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.‘” Id. at 364 (citation omitted). “[C]ourts have been particularly unwilling to find that a defendant has met its heavy burden to establish that its allegedly wrongful conduct will not recur when the defendant expressly states that, notwithstanding
Here, the current executive order permits in-person religious services at half-capacity, but this is due to downward trends in COVID-19 hospitalizations, not because of the plaintiffs’ claims.14 The Governor could amend the executive order to again include religious gatherings in the ban on gatherings of ten or more people. Therefore, voluntary cessation does not moot the motion for a temporary restraining order with respect to the religious claims.
III. Likelihood of success on the merits
COVID-19 has been labeled by both the Governor and the President as a public health emergency. See Proclamation on Declaring National Emergency Concerning the COVID-19 Outbreak, https://www.whitehouse.gov/presidential-actions/proclamation-declaring-national-emergency-concerning-novel-coronavirus-disease-covid-19-outbreak/ (last accessed May 14, 2020). Numerous cases have applied the standard in Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905), when reviewing measures that curtail constitutional rights during the COVID-19 pandemic. See, e.g., In re Abbott, 954 F.3d 772, 784-85 (5th Cir. 2020); see also Robinson v. Attorney Gen., --- F.3d ----, 2020 WL 1952370, at *5 (11th Cir. Apr. 23, 2020).
Jacobson involved a board of health regulation requiring all adults to get a smallpox vaccination. 197 U.S. at 12-13. This regulation was enacted after a smallpox outbreak in Cambridge, MA, and pursuant to a state law that provided the board of health such power. Id. at 28. In reviewing the law, the court counseled against infringing on the legislature‘s power to decide the best way to protect public safety. Id. at 30. Rather,
If there is any such power in the judiciary to review legislative action in respect of a matter affecting the general welfare, it can only be when that which the legislature has done comes within the rule that, if a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution.
Id. at 31. Since the challenged orders are public health measures to address a disease outbreak, Jacobson provides the proper scope of review. Therefore, the plaintiffs must demonstrate that they are likely to succeed in showing that the Governor‘s orders have either no “real or substantial relation” to protecting public health or that they are “beyond all question, a plain, palpable invasion of rights secured by the fundamental law.”15
The executive orders at issue have a “real or substantial relation” to the public health crisis. The orders all aim at reducing the opportunities for the virus to spread. The limit on gatherings has a real and substantial relation to reducing the spread of COVID-19, since COVID-19 can spread easily in large groups, because respiratory droplets carrying the virus can spread up to six feet, with some studies showing they can spread even farther. (Decl. of Mitchell ¶ 15). Outbreaks in Virginia, Kentucky, Chicago, and Washington State have been linked to large gatherings. (Id. ¶ 22). Additionally, requirements for face coverings also reduce the chance that respiratory droplets containing the virus will infect others. (Id. ¶ 23). Finally, the Governor has taken these measures based on the advice and with the assistance of an advisory committee of eight individuals, all with either disease, public health, and/or emergency management experience, (id. ¶ 26), which further indicates that the Governor‘s measures are informed, based on science, and substantially related to the COVID-19 pandemic.
It is not clear if the plaintiffs argue that the orders lack a real and substantial relation to protecting public health, but they do dispute the defendants’ characterization of the severity of the COVID-19 outbreak and the need for such measures. Instead, they argue that COVID-19 has not caused extensive loss of life, as “the total number of Marylanders who, after nearly three months of the virus being in the State, have succumbed to the disease is far less than those who have died even this year from the annual flu or possibly from the effects of being under the stay-in home lock-down orders from suicide and overdoses,” and that the state‘s projections regarding COVID-19 have been wrong. (Reply at 5). But even if these assertions were true,16 the plaintiffs ignore the likelihood that the restrictions that were put in place reduced the number of deaths and serious disability the State has experienced. The plaintiffs reject the Governor‘s consideration of projections for cases outside of Maryland, but that ignores the fact that the first three Maryland cases were travel related, (Decl. of Mitchell ¶ 33), indicating COVID-19 data outside of Maryland is relevant to the public health and safety of Maryland residents. This is further supported by the fact that the outbreak originated in China and has now spread across the world, causing over 320,623 reported deaths so far. Mapping the Worldwide Spread of Coronavirus, Wash. Post, https://www.washingtonpost.com/graphics/2020/world/mapping-spread-new-coronavirus/?itid=sf_coronavirus (last updated May 19, 2020). Additionally, the Governor‘s executive orders, including the gradual easing of restrictions based on COVID-19 data, are in line with the federal government‘s Guidelines for Opening Up America Again. See Opening Up America Again, https://www.whitehouse.gov/openingamerica/ (last accessed May 19, 2020).17
B. Constitutional rights19
As to whether the orders are “beyond all question, a plain, palpable invasion of rights secured by the fundamental law,” for the reasons stated below, the court finds that the plaintiffs have not shown a likelihood of success on the merits.
1. Free Exercise
The plaintiffs argue that the prohibition on gatherings of over ten people infringes on their right to free exercise of religion under the
The free exercise clause does not require the government “to exempt religious practices from a ‘valid and neutral law of general applicability.‘” Liberty Univ., Inc. v. Lew, 733 F.3d 72, 99 (4th Cir. 2013) (quoting Smith, 494 U.S. at 879); see also Prince v. Massachusetts, 321 U.S. 158, 166-67 (1944) (“The right to practice religion freely does not include liberty to expose the community . . . to communicable disease[.]“). “A law is considered neutral if it proscribes conduct without regard to whether that conduct is religiously motivated or not.” Hines v. S.C. Dep‘t of Corr., 148 F.3d 353, 357 (4th Cir. 1998). Alternatively, a law is not neutral if it targets conduct because of its religious motivation, which may be shown through a lack of facial neutrality, evidence about the purpose of the law, or the effect of the law in operation. Lukumi, 508 U.S. at 534-35. As to general applicability, “[a]ll laws are selective to some extent, but categories of selection are of paramount concern when a law has the incidental effect of burdening religious practice.” Id. at 542. The government cannot in a selective manner only impose burdens on conduct motivated by religious belief. Id. at 543. This might be shown when the law is underinclusive, such that it fails to prohibit secular conduct that also endangers the interests the law is meant to promote. Id.
This court agrees with the reasoning of the many courts that have found similar orders to be neutral and generally applicable.22 See, e.g., Legacy Church, Inc. v. Kunkel, --- F. Supp. 3d ----, 2020 WL 1905586 (D.N.M. Apr. 17, 2020); Cassell v. Snyders, --- F. Supp. 3d ----, 2020 WL 2112374 (N.D. Ill. May 3, 2020); see also American United‘s Amicus Brief at 11-12 (collecting cases). The Governor‘s order is neutral because it proscribes conduct (gatherings of more than 10 people) without regard to whether that conduct is religiously motivated or not. There is no indication that the order is meant to target conduct because of its religious motivation.
The order is also generally applicable. The plaintiffs argue that the order is underinclusive because it still allows some businesses to “accommodate large crowds and masses of persons,” such as Lowe‘s and Walmart. (Compl. ¶¶ 6, 95). But plaintiffs have not shown that these activities are comparable to religious services. First, these businesses are part of the critical infrastructure, according to the U.S. Department of Homeland Security‘s Cybersecurity and Infrastructure Security Agency, which the executive order relies upon in determining which businesses are essential. Lowe‘s, Walmart, and businesses like them “either sell[] items necessary for everyday life or [] facilitate the mitigation of COVID-19” and, unlike religious services, they cannot operate remotely. Legacy Church, 2020 WL 1905586, at *40.
Second, the plaintiffs have not shown that allowing essential businesses to remain open is “nonreligious conduct that endangers these interests in a similar or greater degree than” religious services, so that it is comparable. Lukumi, 508 U.S. at 543.23 This is because “[c]asual
And secular activities analogous to religious services at least with respect to the type of interactions - that is, individuals gathered in one place for a set period of time - such as movie theaters or sporting events, are also banned by the order. Cross Culture Christian Ctr. v. Newsom, --- F. Supp. 3d ----, 2020 WL 2121111, at *6 (E.D. Cal. May 5, 2020) (“[T]he type of gathering that occurs at in-person religious services is much more akin to conduct the orders prohibit - attending movies, restaurants, concerts, and sporting events - than that which the orders allow“); see also Legacy Church, 2020 WL 1905586, at *34 (“Here, Secretary Kunkel may distinguish between certain classes of activity, grouping religious gatherings in with a host of secular conduct, to achieve what she determines is a balance between maintaining community needs and protecting public health.“).25
“Under the Supreme Court‘s free exercise doctrine, a neutral government decision of general applicability is subject to rational basis review, even where it has the incidental effect of burdening religious exercise.” Jesus Christ Is the Answer Ministries, Inc. v. Baltimore Cty., Maryland, 915 F.3d 256, 265 (4th Cir. 2019) (citation omitted). Here, it is clear that the prohibition on large gatherings is rationally related to the legitimate government interest of reducing the spread of COVID-19, because the prohibition limits contact between individuals, which is how the virus spreads. Further, the order still allows for a variety of religious services, including “drive-in” services and services with ten or fewer people. See Interpretive Guidance No. COVID 19-09 (April 1, 2020).
2. Freedom of Assembly and Freedom of Speech29
The plaintiffs argue that the prohibition on gatherings and the face covering requirement violates the
a. Gatherings
“The right of peaceable assembly is a right cognate to those of free speech and free press and is equally fundamental.” Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 578 (1980) (quoting De Jonge v. Oregon, 299 U.S. 353, 364 (1937)). The plaintiffs argue that the prohibition restricts their fundamental rights to freedom of speech and assembly, and should be subject to strict scrutiny. The defendants argue that the prohibition is more akin to a time, place, and manner restriction, subject to intermediate scrutiny.
The prohibition on large gatherings of individuals for the duration of the public health crisis is more akin to a time, place, and manner restriction. In Ward v. Rock Against Racism, the Supreme Court stated that while content-based regulations are normally subject to strict scrutiny, content-neutral time, place, and manner restrictions are not. 491 U.S. 781, 798 (1989). “‘[C]ontent-neutral’ speech restrictions [are] those that ‘are justified without reference to the content of the regulated speech.‘” Boos v. Barry, 485 U.S. 312, 320 (1988) (citation and emphasis omitted). “The government‘s purpose is the controlling consideration.” Ward, 491 U.S. at 791.
Here, the Governor‘s executive order does not regulate speech based on its content.
The right to assembly and speech may be subject to reasonable time, place, and manner restrictions. Richmond Newspapers, 448 U.S. at 578. Content neutral time, place, and manner restrictions on
Reducing the spread of COVID-19 is a legitimate and substantial government interest. Additionally, the prohibition on gatherings larger than ten people “promotes a substantial government interest that would be achieved less effectively absent the regulation.” Because of
the ease with which COVID-19 spreads, and because asymptomatic individuals may spread the virus, a gathering larger than ten people poses an increased risk that more people will get the virus if one of the attendees has it. The history of the orders also indicates narrow tailoring. The Governor‘s March 12, 2020, order banned gatherings over 250 people. That was amended on March 16, 2020, to gatherings over 50 people. On March 19, 2020, an amended order prohibited gatherings over 10 people, which is the limit currently in effect (although the prohibition no longer includes religious gatherings). This demonstrates a gradual tailoring of the prohibition based on the COVID-19 figures and how well the previous prohibitions were working. See Reynolds v. Middleton, 779 F.3d 222, 231 (4th Cir. 2015) (”[T]he burden
Finally, the order leaves open ample alternative channels for communication, at least in view of the COVID-19 context. ”In order to satisfy this standard, the available alternatives need not be the speaker‘s first or best choice or provide the same audience or impact for the speech. Rather, the relevant inquiry is simply whether the challenged regulation provides avenues for the more general dissemination of a message.” Ross, 746 F.3d at 559 (citation omitted and cleaned up). Still, the available alternatives must be ”adequate.” Reynolds, 779 F.3d at 232 n.5. Here, the ban on gatherings larger than ten people leaves open several alternatives: Cox and Reopen Maryland, for instance, may still protest in groups of ten or fewer, and can also communicate information in other ways such as through the Internet, newspaper, or signs. Similarly, religious organizations may perform services in groups of ten or fewer people, virtually, or through drive-in services. The court understands that these alternatives might not carry the same force as a large rally or an in-person religious service with all congregants. But, especially in view of the COVID-19 pandemic, sufficient alternatives are available.32
b. Face coverings
The plaintiffs argue that the face covering requirement violates their freedom of speech. ”In deciding whether particular conduct possesses sufficient communicative elements to bring the First Amendment into play, [the Supreme Court has] asked whether ‘[a]n intent to convey a particularized message was present, and [whether] the likelihood was great that the message would be understood by those who viewed it.’” Texas v. Johnson, 491 U.S. 397, 404 (1989) (citation omitted). Therefore, the Supreme Court has found that allowing military recruiters on campus was not expressive conduct protected by the First Amendment, see Rumsfeld v. Forum for Acad. & Institutional Rights, Inc. (”FAIR”), 547 U.S. 47, 66 (2006), and the Fourth Circuit has found that recreational dancing was not either, Willis v. Town Of Marshall, N.C., 426 F.3d 251, 257 (4th Cir. 2005). As to the military recruiting, the Court found that schools’ refusal to allow recruiting on campus was expressive only because the schools’ conduct was accompanied by speech. FAIR, 547 U.S. at 66. But ”[t]he fact that such explanatory speech is necessary isstrong evidence that the conduct at issue here is not so inherently expressive that it warrants protection” as symbolic speech. Id.
Similarly, while wearing a face covering might be to several of the plaintiffs a ”sign of capture on the battlefield, and subservience to the captor,” (Compl. ¶ 73), that meaning is not ”overwhelmingly apparent.” FAIR, 547 U.S. at 66 (quoting Johnson, 491 U.S. at 406). Instead, especially in the context of COVID-19, wearing a face covering would be viewed as a means of preventing the spread of COVID-19, not as expressing any message. As the Supreme Court explained in City of Dallas v. Stanglin, 490 U.S. 19, 25 (1989), ”[i]t is possible to find some kernel of expression in almost every activity a person undertakes—for example, walking down the street or meeting one‘s friends at a shopping mall—but such a kernel is not sufficient to bring the activity within the protection of the First Amendment.”
c. Strict Scrutiny
Even if the plaintiffs’ First Amendment claims (free exercise, free speech, and freedom of assembly) were subject to strict scrutiny, they have not demonstrated a likelihood of success on the merits. Strict scrutiny requires the government to show that the regulation is narrowly tailored to serve a compelling government interest, with narrowly tailored meaning that ”no less restrictive alternative” would serve its purpose. Cent. Radio Co. Inc. v. City of Norfolk, Va., 811 F.3d 625, 633 (4th Cir. 2016) (citation omitted); see Lukumi, 508 U.S. at 546 (”To satisfy the commands of the First Amendment, a law restrictive of religious practice must advance ‘interests of the highest order’ and must be narrowly tailored in pursuit of those interests”). In applying strict scrutiny to a Florida law prohibiting judicial candidates from personally soliciting campaign donations, the Supreme Court found protecting the integrity of the judiciary to be a compelling interest, and that the law was narrowly tailored, because ”[t]he solicitation ban aimssquarely at the conduct most likely to undermine public confidence in the integrity of the judiciary” and ”restricts a narrow slice of speech.” Williams-Yulee v. Fla. Bar, 575 U.S. 433, 449, 452 (2015).
Slowing the spread of COVID-19 is a compelling government interest. Workman v. Mingo Cty. Bd. of Educ., 419 F. App‘x 348, 353 (4th Cir. 2011) (”[T]he state‘s wish to prevent the spread
In addressing a state law claim under
d. Commerce Clause
The plaintiffs claim that the order closing certain non-essential businesses in Maryland violates the commerce clause, because the plaintiff Adventure Park and other businesses forced to close regularly do business with suppliers and customers outside of Maryland, and are now prevented from engaging in that interstate commerce. (See ECF 32-1, Reply Ex. A, Decl. of Kevin Kaufman, General Manager at Adventure Park). The plaintiffs allege that since COVID-19 primarily affects elderly and immune-deficient individuals, those individuals can be protected without shutting down these businesses. They argue that ”states like Georgia, including densely populated Atlanta, and West Virginia, have reopened with no spike in sicknesses. Countries like Israel and Sweden have been successful at curbing the spread of the virus despite no mandatory business closures and guidelines which do not compel behavior.” (Reply at 13).33
The commerce clause provides that ”The Congress shall have Power . . .
”To determine whether a law violates this so-called ‘dormant’ aspect of the Commerce Clause, we first ask whether it discriminates on its face against interstate commerce.” United Haulers Ass‘n, Inc. v. Oneida-Herkimer Solid Waste Mgmt. Auth., 550 U.S. 330, 338 (2007). ”In this context, ‘discrimination’ simply means differential treatment of in-state and out-of-state economic interests that benefits the former and burdens the latter.” Id. (citations omitted). A law may discriminate against interstate commerce in three ways: facially, in its practical effect, or in its purpose. Colon Health Centers of Am., LLC v. Hazel, 813 F.3d 145, 152 (4th Cir. 2016).
The Governor‘s order is not facially discriminatory against interstate commerce, as it only orders the closure of certain Maryland businesses, and does not regulate out-of-state businesses. Nor do the plaintiffs present any evidence that the order has a discriminatory purpose or effect. There is no indication that the purpose of the order is to ”advance [Maryland‘s] own commercial interests by curtailing the movement of articles of commerce.” Colon Health Centers, 813 F.3d at 152 (quoting H.P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525, 535 (1949)). And there is no indication that the order ”negatively impact[s] interstate commerce to a greater degree than intrastate commerce.” Id. at 153. If anything, the order negatively impacts intrastate commerce to a greater degree, as it only applies to Maryland businesses.
The plaintiffs argue that the Governor‘s order closing certain non-essential businesses is foreclosed by the 1890 Supreme Court case Minnesota v. Barber, 136 U.S. 313 (1890). But Barber involved a statute that, in its effect, prohibited meat from being sold in Minnesota unless the animal was slaughtered in Minnesota. Id. at 328. The court found that this was an unconstitutional regulation of interstate commerce. Id. The plaintiffs argue that ”[h]ere the circumstances are very similar since the result of the shut down is to prevent manufacturers, suppliers and vendors from selling to Maryland businesses and, of course, for Maryland businesses to purchase goods and services for delivery in Maryland.” (Reply at 16). But for the same reasons that Maryland businesses might not purchase out-of-state goods while they are closed (which, of course, they are not prevented from doing), they also might not purchase in-state goods. Unlike the Minnesota law, there is no discriminatory effect on out-of-state goods.
Because the orders do not discriminate against interstate commerce, they will be analyzed under the ”Pike test”: ”Where the statute regulates even-handedly to effectuate alegitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.” Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970); see also Wayfair, Inc., 138 S. Ct. at 2091. The Fourth Circuit has characterized this as a rational basis standard of review. Colon Health Centers, 813 F.3d at 156.
The putative local benefits of closing certain businesses deemed non-essential are to reduce interactions between individuals that could spread COVID-19. (See Decl. of Mitchell ¶ 38 (children may be infectious without showing any symptoms, and must be accompanied by older individuals when they go to Adventure Park); ¶ 13 (the best way to slow the spread of COVID-19 is avoiding close contact with others). The plaintiffs bear the burden of showing that the burden on interstate commerce outweighs the local benefits. Colon Health Centers, 813 F.3d at 157. The plaintiffs’ main argument is that the orders are especially burdensome for Maryland small businesses.35 While the court sympathizes with Maryland businesses that have had to shut down, this is not a burden on interstate commerce to be analyzed under the dormant commerce clause. And although the order closing certain businesses incidentally burdens interstate commerce, (see Decl. of Kaufman, stating that Adventure Park does business with out-of-state businesses and customers, and because of the shut down, will lose some of that interstate business), it is not clearly excessive in relation to local benefits. ”To override [Maryland‘s] judgments casually would be to undermine a cornerstone of our federal system: the state police power. Courts enforcing the dormant Commerce Clause were ‘never intended to cut the Statesoff from legislating on [ ] subjects relating to the health, life, and safety of their citizens.’” Colon Health Centers, 813 F.3d at 158.
e. Article 8 of the Maryland Declaration of Rights
The plaintiffs argue that the Governor violated
f. Article 44 of the Maryland Declaration of Rights
The plaintiffs also argue that the Governor has violated
II. Other Factors
For the reasons stated above, the plaintiffs have not shown that the harm they are facing is the result of constitutional violations. Therefore, the irreparable harm factor weighs against granting a TRO or a preliminary injunction. See Legacy Church, 2020 WL 1905586, at *41-43. The other factors, the balance of the equities and the public interest, which ”merge when the Government is the opposing party,” Nken v. Holder, 556 U.S. 418, 435 (2009), also do not weigh in favor of granting a TRO or a preliminary injunction. Here the harm to the public in granting a TRO or preliminary injunction, which may result in more transmissions of COVID-19 and more cases of serious illness and death, could be great. This harm to the public is not outweighed by the irreparable harm the plaintiffs might suffer, especially when the plaintiffs have not demonstrated a likelihood of success in showing that the harm is a result of any constitutional violation.
CONCLUSION
Public officials cannot responsibly exercise their broad authority to protect the health of the entire community without considering the data, the science, and the advice of experienced public health professionals. Governor Hogan, exercising the powers given to him by the legislature in the face of the COVID-19 crisis, has made reasonable choices informed, if not dictated by, such data, science, and advice. In opposing the Governor‘s stay at home orders, including the prohibition on large gatherings, the closing of nonessential businesses, and the requirement that face coverings be worn on public transportation and in retail stores, the plaintiffs minimize the risks of this pandemic but cite no contrary scientific authority. Under the Jacobson framework, they have not shown that the measures have ”no real or substantial relation” to protecting public health, nor have they shown that the measures are, ”beyond all question, a plain, palpable invasion of rights secured by the fundamental law.” For the reasonsstated above, the court will deny the plaintiffs’ motion for a TRO, treated as a motion for a preliminary injunction. A separate order follows.
5/20/20
Date
/S/
Catherine C. Blake
United States District Judge