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Maybe we’ll keep writing about Covid-19 cases as long as there is Covid-19. That’s a depressing thought. It is depressing because Covid-19 continues to harm so many lives, both in terms of destruction and diminution. It is also depressing because so many legal challenges to Covid-19 regulations are frivolous. You might even say those challenges lack a rational basis.

The plaintiffs took the kitchen sink approach in Dixon v. DeBlasio, 2021 U.S. Dist. LEXIS 196287 (EDNY Oct. 12, 2021). The Mayor of New York City issued emergency orders requiring “covered entities” to prevent unvaccinated persons from remaining in certain indoor facilities for prolonged periods of time. The plaintiffs claimed that these emergency orders violated their rights under the Thirteenth and Fourteenth Amendment and also constituted an uncompensated taking under New York law. They sought a preliminary injunction.

Dixon did not involve vaccine mandates, though the plaintiffs suggested that the indoor restrictions had a similar effect and that such effect was fully intended. As we have written before about challenges to Covid-19 vaccine mandates, the key is the standard of review. Plaintiffs try to subject the regulations to strict scrutiny. If they fail they are left with only rational basis review. That is bad news for the plaintiffs, because under the ancient and wise SCOTUS decision in Jacobson, they surely lose. The government can undertake reasonable measures to protect public health. The government can even require vaccinations. The Constitution is not a suicide note.

To cut to the chase, the Dixon court held that rational basis review applied, and that the indoor restrictions were rational. The plaintiffs lost. Why? Even if Covid cases were declining in NYC, they were still numerous enough, the Delta variant threatened to increase that Covid rate again, airborne transmission is more likely in crowded indoor spaces, and there is a legitimate concern about placing the hospital system under stress from a surge in Covid cases.

To be sure, the plaintiffs in the Dixon case took a shot at showing irrationality and inconsistency in the emergency orders. For example, the plaintiffs argued that the exemptions for short-term athletic or entertainment performances by nonresidents made no sense. The court disagreed, deeming the exemptions to be well tailored accommodations allowing a small group of individuals to pursue their professions while still limiting their ability to spread or contract Covid.

Let’s take a mercifully quick look at the plaintiff’s theories supporting strict scrutiny, and see why the Dixon court shot them down.

    Equal Protection

The plaintiffs alleged that the emergency adversely affected two protected classes, African Americans and Hispanics, who have lower vaccination rates. But the plaintiffs’ position “is unable to withstand the simple observation that all unvaccinated individuals, regardless of race, religion, or national,origin, are treated the same” under the orders in question. The orders were facially and racially neutral, there was no evidence of discriminatory animus, and disparate rates of vaccination could be remedied by people deciding to get vaccinated.

    Freedom of Religion

Places of worship are not covered entities, so there was no plausible argument that religion was being targeted. If anything, the contrary was true. The emergency orders were facially neutral and there is ample Second Circuit authority that schools can exclude unvaccinated children from schools, even if religion was the reason why the kids were not vaccinated. Similarly, the orders do not force anyone to get vaccinated in contravention of their religion. Rather, they “merely place reasonable restrictions on those who choose not to get vaccinated, given the current dynamics of the global pandemic.”

    Freedom of Bodily Health and Integrity

Since the Jacobson decision, courts have consistently “rejected the idea of a fundamental right to refuse vaccination.” And these emergency orders “are not forcing New Yorkers to get vaccinated. They are merely placing restrictions on those who choose not to.”

Freedom of Association

The plaintiffs “want to stand in solidarity with others who are refusing to get vaccinated.” Huh? They can go ahead and hang out with other flat-earthers. What they cannot do is inflict their unvaccinated presence on others in certain specifically defined places.

    The Right to Pursue a Chosen Occupation

The orders do not prohibit anyone from practicing their profession or conducting their business. We all live with certain restrictions on our employment. Do health regulations per se prevent restauranteurs from doing business? That would be a silly argument. And while it might be a pain for restaurants to set up outdoor seating, it is usually doable, not impossible. More importantly, it is sensible.

    Thirteenth Amendment

Really? Slavery? The plaintiffs complain that the orders force some of them to check identification and vaccination records, and that constitutes forced servitude. The plaintiffs obviously never heard Bob Dylan sing about how you have to “serve somebody.” Employees at bars and nightclubs are required to check IDs for age. Many lawyers are (shudder) forced to do some pro bono. We are having a hard time deciding whether invocation of the Thirteenth Amendment to challenge this sort of thing is dumb or offensive. Okay, it’s both.

    Unconstitutional Taking

The plaintiffs themselves “barely raise this issue.” Good thing, too. There was certainly no wholesale taking of property here. At most, the plaintiffs seemed to allege “a non-categorical regulatory taking of their property.” Moreover, the emergency orders were effective for 30 days. Any economic impact was limited, speculative, and temporary. Moreover, it is old hat for courts to uphold police power/health regulations even when they adversely affect recognized real property interests.

The plaintiffs lobbed in other, even weaker, arguments. We said earlier that the plaintiff threw everything including the kitchen sink into their complaint. In truth, they also included the little washtub sink that squats next to the washing machine. The plaintiffs invited the New York federal court to overrule century-old precedent from SCOTUS cabining the meaning of the privileges and immunities clause. (We’re talking about the Slaughterhouse cases. SCOTUS probably got the issue wrong, but old precedents have more force than innovations, no matter how logical or adorable.) Amazingly, the New York court declined that invitation.

We were taught a long time ago that you do not strengthen stupid legal arguments by surrounding them with other stupid legal arguments. But maybe stupid legal arguments like hanging around with other stupid arguments. It is sort of like the Dixon plaintiffs’ freedom of association argument.