Why didn't COVID kill the Constitution?

The month after Michael Dorf demanded a national lockdown and urged Congress to suspend the writ of habeas corpus, two other legal scholars published a Harvard Law Review Forum essay that highlighted the dangers of judicial deference during the pandemic. "Should constitutional constraints on government action be suspended in times of emergency," asked American University law professor Lindsay Wiley and University of Texas law professor Stephen Vladeck, "or do constitutional doctrines forged in calmer times adequately accommodate exigent circumstances?"

Wiley and Vladeck made a powerful case for the latter position. They noted that "the suspension principle is inextricably linked with the idea that a crisis is of finite—and brief—duration," and it is therefore "ill-suited for long-term and open-ended emergencies like the one in which we currently find ourselves." They added that "the suspension model is based upon the oft-unsubstantiated assertion that 'ordinary' judicial review will be too harsh on government actions in a crisis"—a notion that seems misguided given that "the principles of proportionality and balancing driving most modern constitutional standards permit greater incursions into civil liberties in times of greater communal need."

Wiley and Vladeck emphasized "the importance of an independent judiciary in a crisis" as "perhaps the only institution that is in any structural position to push back against potential overreaching by the local, state, or federal political branches." They quoted George Mason law professor Ilya Somin's observation that "imposing normal judicial review on emergency measures can help reduce the risk that the emergency will be used as a pretext to undermine constitutional rights and weaken constraints on government power even in ways that are not really necessary to address the crisis."

Without such review, Wiley and Vladeck warned, "we risk ending up with decisions like Korematsu v. United States," the notorious 1944 ruling that upheld the detention of Japanese Americans during World War II.