Federal Court Holds Pennsylvania’s Shutdown Order Unconstitutional: Business Shutdown
I blogged below about the general analysis in Judge William S. Stickman IV’s decision in County of Butler v. Wolf (W.D. Pa.), as well as its application to the gatherings ban and the stay-at-home order. But the court also concluded that the business shutdown also violated substantive due process (as well as equal protection), because “The Fourteenth Amendment guarantees a citizen’s right to support himself by pursuing a chosen occupation”—and even if that right is subject only to rational basis scrutiny, the shutdown failed that scrutiny because it was too arbitrary:
The Supreme Court has recognized that the “core of the concept” of substantive due process is the protection against arbitrary government action. Indeed, “the touchstone of due process is protection of the individual against arbitrary actions of government ….” Rational basis review is a forgiving standard for government acts, but it “is not a toothless one ….” As a general matter, the rational basis test requires only that the governmental action “bear a rational relationship to some legitimate end.” Conversely, actions which are irrational, arbitrary or capricious do not bear a rational relationship to any end….
The record shows that the Governor’s advisory team, which designated the Business Plaintiffs and countless other businesses throughout the Commonwealth as “non-life-sustaining” and, thereby, closing them, did so with no set policy as to the designation and, indeed, without ever formulating a set definition for “life-sustaining” and, conversely “non-life-sustaining.” The terms “life-sustaining” and “non-life-sustaining” relative to businesses are not defined in any Pennsylvania statute or regulation…. The record demonstrates that the policy team’s unilateral determination as to which classes of bu
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