From Deference to Indifference: Judicial Review of the Scope of Public Health Authority During the COVID-19 Pandemic

For most of American history, courts have granted public health officials significant deference in construing the scope of their own authority. This changed during the COVID-19 pandemic, especially in the federal courts, where deference was replaced with skepticism as courts used the major questions doctrine to narrow the scope of public health powers. This Article examines this development and considers its implications for public health. Part II begins by recounting the long history of judicial deference to officials’ determination of the scope of their public health powers.

Part III notes some of the problems with such deference and the pre-pandemic cases that presaged its decline. Part IV looks at how state and federal courts analyzed challenges to officials’ scope of authority during the pandemic. Although most courts upheld most uses of public health powers during the pandemic, many courts, including the Supreme Court under the guise of the major questions doctrine, replaced deference with deep skepticism of expertise and indifference to the public health effects of their decisions. Part V considers the implications of this development for the government’s capacity to respond to new health threats and argues, paradoxically, that the decline of deference to agency determinations of the scope of their authority may be more dangerous to health than the denial of deference to agency fact-finding in particular cases.