On Wednesday, U.S. District Judge Catherine Blake rejected the lawsuit filed by Emmitsburg attorney and District 4 delegate Daniel Cox on behalf of businesses, lawmakers and clergy challenging Gov. Larry Hogan's use of emergency public health powers. In some other states, challengers have won rulings striking down at least some portions of state stay-home orders. But this suit’s claims failed all down the line, and here’s why.

To begin with, the U.S. Constitution does not generally bar restrictive state public health measures. Under the leading Supreme Court case of Jacobson v. Massachusetts, on mandatory vaccination, such laws fail only if they have “no real or substantial relation” to preventing disease. Courts will substitute their judgment for that of public health officials only in a few circumstances, as when they conclude that the orders have no real relationship to battling a health risk, or even that the whole emergency is imaginary.

In what you might call a long-shot move, Cox’s suit did seek to minimize the seriousness of what it called the “alleged on-going catastrophic health pandemic” — which has killed more than 2,000 Marylanders so far — and drew sharp rebuke from the judge, who wrote: “even if these assertions were true, the plaintiffs ignore the likelihood that the restrictions that were put in place reduced the number of deaths and serious disability the State has experienced.”

In his statements outside the court, Del. Cox has told a radio audience that “ninety-nine percent of the population is not in danger with this virus," and has said on Twitter that "Studies show up to 70-86% of the public already have or had coronavirus." Many medical authorities would sharply disagree with both contentions.

In Wisconsin, Oregon, and Ohio, challengers were able to convince judges that governors overstepped the authority granted under state emergency laws, which may require, for example, legislative say-so for an emergency order’s extension. But Maryland grants its governor broader power than many other states, one good reason being that ours is not a year-round legislature. The General Assembly has been adjourned for weeks and is not going to reconvene in Annapolis every 30 days — in the middle of a pandemic! — to give thumbs up or down on each Hogan order. Nor should it have to. The judge found Hogan had not overstepped Maryland law.

In some states, challengers have successfully argued that governors’ orders were too restrictive toward churches. Those claims failed here too.

Under the relevant standard, articulated by the late Justice Antonin Scalia in a 1990 Supreme Court opinion, neutral and general laws that burden religion do not violate the U.S. Constitution so long as 1) they are not improperly motivated by a wish to restrict religion, and 2) they do not arbitrarily restrict religious activity when genuinely similar non-religious activity is permitted. This court, like other federal courts, rejected the argument that if stores are to stay open to sell plywood or soft drinks, all other gatherings must be permitted as well. As the judge pointed out, the federal government’s own guidelines designate sale of food and cleaning supplies as essential. And shop-and-leave arrangements can be rationally distinguished from gatherings whose whole point is to congregate closely for a lengthy period. (Religious gatherings have been an important source of outbreaks both in the U.S. and abroad.)

An unusual aspect of the suit was Del. Cox’s claim to have been personally threatened by an aide to Gov. Hogan. Shortly before filing the lawsuit Cox repeatedly asked the aide if he, Cox, could be arrested for speaking at a Reopen rally, and the aide answered that the delegate should read the text of the relevant order if he wanted to know what it said. Cox characterized this exchange as a threat. (No one was arrested for speaking at the rally.)

Judge Blake ruled that the restriction on large gatherings is what the law calls a “time, place, and manner” restriction not based on the content of speech, noted that "there is no evidence that the order is being applied selectively to discourage speech that the Governor disagrees with,” and summed things up: "the Governor has not silenced Cox or any other legislator."

The court made short shrift of most of the suit’s other claims, some of which seemed thrown against the wall to see what might stick. For instance, the constitution’s Commerce Clause might come into play had the governor arranged the rules so as to discriminate against out-of-state merchants, but he hadn’t.

The text of this lawsuit was full of rhetorical flights and digressions into points not germane to law. It appeared to be written with some audience in mind other than federal judges.

That’s one reason, when Cox takes the case to the Fourth Circuit federal appeals court — as he has vowed to do — he will find his work cut out for him.

Walter Olson is a senior fellow at the Cato Institute’s Robert A. Levy Center for Constitutional Studies and lives in New Market.

(25) comments

Hollowed Ground

Delegate Cox is a persistent goober thorn. He is symptomatic of how Republicans think nowadays, a cog in the GOP machinery focusing only on the 1%. Just look at their national actions. Pandemic preparation a joke. Gross mismanagement of emergency supply chains. Business coffers filled to overflowing; worker paychecks sent to the twilight zone. Unemployment compensation denied. Business obligations forgiven; workers told to barter with their creditors. Religion used to justify recklessness. Gotta get rid of every Republican at every level. They are no good for America.

DickD

[thumbup][thumbup][thumbup] My sentiments exactly!

BSquared

Please don’t box all of us Republicans in with Cox. He definitely does NOT speak for me! He gives good Republicans a very bad name. If I could oust him from our party, I’d do it with a steel-toed boot!

armillary

When a senior fellow from the conservative and libertarian Cato Institute won't back you up Del. Cox, maybe you've gone over the edge. To those admitting they've left the Republican party, I'll say this: I've been a Democrat all my life. I don't fear for the Democratic party, I think it's in good hands overall. But I fear for the Republican party. It needs to make better decisions. That's why I registered Republican about 10 years ago, so I could vote in the primaries and help it make better decisions. I wish those of you who've left the Republican recently would have stuck around so we could give people like Del. Cox and the other tea party remnants the boot.

DickD

There still is the general election, aw.

francesca_easa

While I agree that certain areas of Maryland and small businesses should be reopened. And that citizens have the right to make their case, being disrespectful of our governor and filing this lawsuit is stupid. There are some areas that aren't ready for the next step. Let's trust our governor to do what's best.

Brennemanj66

Not only will you obey Big Brother, you will love Big Brother ~ George Orwell

threecents

We the taxpayer are paying Cox while he is appealing the verdict and distracting the state government - all for the purpose of furthering Cox's radio and political careers.

HappySeller2014

Six words to get to the point...

It failed because it was STUPID.

public-tertiary

Oh yeah? Oh, yeah? Well....

Obamagate!!

Moon otter

to the writer of the editorial spot on.

Piedmontgardener

Well stated, Mr. Olson, he's got no chance at the 4th Circuit, this is just more grandstanding. Thank you for taking the time to parse the complaint/defense and opinion. Del. Cox, like Trump, offers "alternative facts", hyperbole, speculation and his personal guesses as scientific fact and demands his rights over those of the community in a health pandemic, utilizing a cut and paste form complaint from a conservative legal advocacy group, he didn't even bother to write it himself. Worse, he took valuable time from a Court involved in serious emergency matters on a skeleton staff to hear his poorly thought out public relations stunt.

He's a symptom of the intellectual and ethical rot in the Republican Party at present that won't be changed until a resounding rebuke of it, and particularly the slavish devotion to a uniquely unfit President is issued in the fall. The Republican Party that I remember and supported prior to Bush's second term where I had to walk away has disappeared in a frothing sea of power driven imbeciles who have not one iota of community demanding absolute enforcement of only the rights they deem important and suppression of the others they deem non-existent, all the while assisting the further transformation of the US into a society owned by the few. As to a large community, we've seen the virus preparation and execution play out under Trump's hand, not much to say about that, the discussion of ending virus related unemployment is a perfect example of the lack of caring oozing from this ill party. I'm no great fan of the drift left from the Democrats at the national level, but I won't be caught dead voting for a Republican this election cycle. The Republican Party is very sick right now and has not one good idea as to how to heal itself and our country. Del. Cox has not one good idea to add to that discussion. As a former Republican voter who did vote for Larry Hogan twice, I'm beyond disgusted with people like Del. Cox and a national Republican Party that has become an angry and dangerous minority party that believes it should act as it sees fit, always.

olefool

[thumbup][thumbup][thumbup]

Brookhawk

Well put.

msmith6276

[thumbup][thumbup]

schaeferhund

Excellent comment. Every word. I lingered on in the GOP as a functionary a couple years longer than you, but I had no business being there. I saw where it was going. A new Republican party needs to emerge. This one needs to be purged of the rot and rebuilt. But I don't see me rejoining. We need a centrist party.

Piedmontgardener

Agreed in spades, schaeferhund. But first we need to remove Trump and his cabal of isolationist minded, racist thieves from the people's house and flip the Senate. The Republican Party has no business making any rules for our society until it purges itself. To be honest, I think it will go the way of the Whig Party.

DickD

I would like a centrist party. We don't have one now and are not likely to get one, but I am not totally with the ultra liberals either, it is just a matter of the Republicans being horrible, beyond reason.

threecents

PG[thumbup]

rpkrauss

👍👍👍

gomogirl

Yes, your comment is on the money. The current Republican party needs to be burned to the ground and rebuilt minus the right wing extremism. And minus Trump and Mitch McConnell.

phydeaux994

I disagree with you on one point. Newt Gingrich started the RINO Party of “NO” in 1994 with the “Contract ON America”. Your last 3 sentences say it all Piedmontgardener. Thanks.

Hollowed Ground

Their blather about rights rings hollow. When they fight for abortion rights and minority voting rights with the same ferocity they holler about religious rights, only then will they gain any credibility.

DickD

[thumbup][thumbup]

KellyAlzan

Great summary!

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