NJBIA has filed an amicus brief in a new legal attempt to reopen a case that could define the limits of New Jersey’s executive power in response to a pandemic.
In August, the U.S. Court of Appeals for the Third Circuit tossed a challenge to Pennsylvania’s expired pandemic restrictions, saying the case was moot, because the executive orders of Gov. Tom Wolf were repealed, thus vacating a previous lower court’s ruling on the matter.
But with continuing COVID-19 cases throughout the nation – and the continuing possibilities of Executive Order-imposed shutdowns and mandates – NJBIA has joined a legal effort to have the Supreme Court overrule the Third Circuit decision that the issue is moot.
“We think it is crucial that the Supreme Court take this case because the issue of unfettered executive authority during a pandemic very much remains an ongoing issue,” said NJBIA Vice President of Government Affairs Ray Cantor.
“This issue is not moot and we want the opportunity to argue the merits that constitutional protections still apply even during the midst of a public health emergency.”
There is no timetable for the Supreme Court to review the challenge.
The State of Pennsylvania appealed last year’s district court decision that declared certain COVID-19 emergency orders were unconstitutional, including the extended closure of non-essential businesses.
Because New Jersey falls under the jurisdiction of the Third Circuit, the Court’s decision could have created precedent for the Garden State.
That was all before the Philadelphia-based appeals court determined last summer that the case is moot and there was “no relief” it could grant.
The district court’s initial decision, along with similar challenges levied to business shutdown orders nationwide, implicated a 115-year-old Supreme Court decision (Jacobson v. Massachusetts) that some state governments have argued grants nearly unbridled discretion to a state’s executive in responding to a public health emergency.
As an amicus to that case, NJBIA had argued that the Third Circuit should “not adopt the one-size-fits-all test” premised on that decision following “a century of nuances developed by the United States Supreme Court and the Third Circuit in order to ensure that the rights enshrined are adequately protected.”