Coronavirus, Civil Libertities, and the Courts: The Case Against Suspending Judicial Review

Authors

Lindsay WileyFollow

Document Type

Article

Publication Date

January 2020

Volume

133

First Page

179

Abstract

Introduction: For obvious reasons, local and state orders designed to help “flatten the curve” of novel coronavirus infections (and conserve health care capacity to treat coronavirus disease) have provoked a series of constitutional objections — and a growing number of lawsuits attempting to have those orders modified or overturned. Like the coronavirus crisis itself, much of that litigation remains ongoing as we write this Essay. But even in these early days, the emerging body of case law has rather elegantly teed up what we have previously described as “the central (and long-running) normative debate over emergency powers: Should constitutional constraints on government action be suspended in times of emergency (because emergencies are ‘extraconstitutional’), or do constitutional doctrines forged in calmer times adequately accommodate exigent circumstances?”

Recommended Citation

Lindsay Wiley, Coronavirus, Civil Libertities, and the Courts: The Case Against Suspending Judicial Review, 133 Harvard Law Review Forum 179 (2020).
Available at: https://digitalcommons.wcl.american.edu/facsch_lawrev/1849