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How State Governments Escape Consequences for Unconstitutional Covid Policies

Jenin Younes
Litigation Counsel

April 3, 2024

During the Covid era, state and local governments across the nation flagrantly violated Americans’ constitutional rights for months in some cases and years in others in an ostensible effort to quell the virus’s spread. Yet, with some notable exceptions, the vast majority of bad government actors have avoided facing legal consequences by abusing the mootness doctrine. On Tuesday of this week, relying on this principle, a federal court let the State of California off the hook. That was despite having found last year that the state government had probably violated the constitutional rights of the five plaintiffs in the case, called Høeg v. Newsom, when it passed a law—known as AB 2098—subjecting physicians to discipline for giving patients advice about Covid-related matters that didn’t comport with the “scientific consensus.”   

 Article III of the Constitution endows federal courts with the power to decide “cases and controversies.” A case becomes moot and may be dismissed as such when the underlying issue resolves one way or another, so there’s no longer a “case or controversy.” There are exceptions to this concept, and one of those—known as voluntary cessation—applies when the party being sued simply ceases the challenged conduct.  Otherwise, as the Supreme Court recognizes, defendants could manufacture mootness to evade an adverse ruling and then resume the wrongful conduct. Accordingly, as the Court explained in 2022 in West Virginia v. EPA, “voluntary cessation does not moot a case unless it is absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Just a few weeks ago, the Supreme Court reaffirmed in FBI v. Fikre that in such cases, the defendant must “prove no reasonable expectation remains that it will return to [its] old ways.” 

Despite this precedent, in 2019, the Ninth Circuit Court of Appeals, which presides over all federal appeals in California as well as other parts of the west, held that when the voluntary cessation is based on repeal of legislation, the plaintiff must show a reasonable expectation that the legislative body will reenact the provision in question, or a similar one. In other words, the burden shifts to the plaintiff.  This burden becomes even heavier when the government is the defendant, because the Ninth Circuit gives such defendants a “good faith presumption.” (There’s a real question as to whether this “good faith presumption” for the government conflicts with fundamental principles of our legal system, including the equality of parties in the eyes of the law, but that’s a topic for another day). 

Contrary to the Høeg court’s reasoning, Chambers contravenes the Supreme Court’s precedent on this subject. Both the government and the judge distinguished Chambers from West Virginia on the ground that the former involved repeal of legislation while the latter was about an agency action. But West Virginia did not make a distinction between legislative and administrative action. Furthermore, in its holding on mootness, the Supreme Court approvingly cited City of Mesquite v. Aladdin’s Castle which involved repeal of a city ordinance enacted through a legislative process. The Court would not have done so if it believed the voluntary cessation analysis differs depending on whether the challenged action is administrative or legislative. 

Had the court employed the right framework, the case would not have been dismissed. The state failed to demonstrate that it is “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Quite the opposite. When the repeal process began, a member of the legislature and one of the most prominent sponsors of AB 2098 assured his supporters not to worry—the medical board could simply use another part of the law to discipline doctors for Covid heresy.  And over the summer, the Board went after a doctor for cautioning a patient against the Covid vaccine and telling him she did not believe masks work. This was precisely the type of constitutionally protected speech that AB 2098 sought to silence.  

Nor has the government at any point acknowledged the unconstitutionality of AB 2098; on the contrary, it vigorously defended all four challenges to the law at the trial and appellate court levels. Only after the court in this case issued a preliminary ruling indicating the law was not constitutionally sound, and after the government faced a hostile panel in the Ninth Circuit in another challenge to AB 2098, did the legislature begin the repeal process. Given these circumstances, it’s obvious that the legislative action wasn’t a good faith attempt to comply with the Constitution, but rather a cynical effort to avoid creation of unfavorable precedent—while the Board continues to guarantee an Orwellian ideological conformity in the medical profession through other avenues. Unfortunately, this all-too-frequent and successful exploitation of the mootness doctrine means that, should another pandemic or other crisis occur, the government can once again violate our rights without consequences.