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Written By: Owen Mattox
Articles Editor, American Journal of Trial Advocacy
Economic substantive due process, a doctrine seldom invoked since the early twentieth century, may have been thrown a lifeline in the midst of last summer’s nearly nationwide lockdown. Simply put, the doctrine, made famous by cases like Lochner v. New York that struck down economic regulatory measures, asserted that certain unenumerated rights could be read into the Due Process clause of the Fourteenth Amendment of the Constitution, including the right to pursue economic opportunities. While popular at a time when laissez-faire economics dominated American political discussion, economic substantive due process fell to the wayside as jurists in the New Deal era became more deferential to economic regulation—but the doctrine has not been explicitly annulled. Now, following Judge William S. Stickman’s opinion in County of Butler v. Wolf, economic substantive due process may have caught a second wind.
In response to the emergence of Covid-19, governors across the country implemented sweeping regulatory measures to slow the spread of the virus. In Pennsylvania, Governor Tom Wolf issued a declaration of emergency, imposing substantial limitations on nonessential businesses for ninety days. The limitations reduce human interaction by suspending indoor and outdoor gatherings, closing nightclubs, and putting restrictions on businesses in the service industry. While Governor Wolf and his response team initially allowed for businesses to apply to be labeled as “life-sustaining” and continue day-to-day operations, the application process was subsequently suspended after just fourteen days. With business owners across the state facing financial ruin, a coalition of counties, elected representatives, businesses, and ordinary citizens challenged Governor Wolf’s declaration of emergency under 42 U.S.C. § 1983, alleging that the suspension of business activities “violated certain constitutional rights.”
The district court, while recognizing the broad authority that states possess to regulate public health and safety, determined that the measures taken by Governor Wolf simply went too far. In striking down Governor Wolf’s emergency measures, the district court dusted off the century-old doctrine of economic substantive due process. The district court explained that economic substantive due process, while “recalibrated and de-emphasized by the New Deal Supreme Court and later jurisprudence,” has yet to be explicitly overruled by the Supreme Court. Moreover, precedent from the Third Circuit supported the conclusion that the Fifth and Fourteenth Amendments still afforded individuals the “right to hold specific private employment and to follow a chosen profession free from unreasonable governmental interference.” Thus, the question was not whether the right to work exists, “but rather, the level of infringement upon the right that may be tolerated.”
Even when applying a “rational basis” standard of review, the standard often used by courts when determining the constitutionality of economic regulatory measures, the district court ruled that the need to limit personal interactions did not warrant Governor Wolf’s shutdown of non-life sustaining businesses and the suspension of the plaintiffs’ economic substantive due process rights. Specifically, the district court took issue with the way in which Governor Wolf and his staff decided whether a business was “life-sustaining.” At the core of substantive due process is the premise that citizens should be protected from arbitrary government action. After reviewing the manner in which Governor Wolf and his response team labeled businesses as life-sustaining or non-life-sustaining, the district court found that the emergency declarations represented the same type of arbitrary government action that the Fourteenth Amendment sought to prevent. Even after the district court was provided with testimony from a number of individuals familiar with the process of determining what made a business life-sustaining, no definition of “life-sustaining” was produced. Indeed, a number of businesses labeled as “non-life-sustaining” offered the same products and services “that were available in stores that were deemed ‘life-sustaining.’” With no real definition in place and many businesses estopped from challenging the assignment of a “non-life-sustaining” business label, Governor Wolf and his response team exercised “raw governmental authority” without possessing “an objective plan.” Despite the goal of closing “non-life-sustaining” businesses to limit personal interactions, the district court found it paradoxical that “the largest retailers” with the highest occupancy limits were permitted to remain open while smaller retailers were forced to close their doors. The district court ultimately concluded that the measures put in place by Governor Wolf, as prudent and well-intentioned as they may have been, arbitrarily determined “who could work and who could not, who would earn a paycheck and who would be unemployed—and for some—which businesses would live, and which would die.”
While the ruling in County of Butler v. Wolf has been appealed to the Third Circuit, its message seems to have struck a chord with others seeking redress for supposed constitutional rights violations as a result of Covid-19-related suspensions. Litigants across the country have invoked County of Butler v. Wolf in their efforts to challenge lockdown restrictions—but have had little success. Nonetheless, County of Butler can serve as a valuable reminder that many jurists still consider economic liberty to be a product of the Fourteenth Amendment and substantive due process.
 See 198 U.S. 45, 53 (1905) (“The general right to make a contract in relation to his business is part of the liberty of the individual protected by the 14th Amendment of the Federal Constitution. Under that provision no state can deprive any person of life, liberty, or property without due process of law. The right to purchase or to sell labor is part of the liberty protected by this amendment.”); see also Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (explaining that liberty “denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life…and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men”).
 See Cass R. Sunstein, Lochner’s Legacy, 87 Colum. L. Rev. 873, 875, 912 (1987)(explaining that despite the Supreme Court’s abandonment of economic substantive due process, the doctrine has “hardly been overruled”).
 No. 2:20-CV-677, 2020 WL 5510690, at *1 (W.D. Penn. Sept. 14, 2020).
 See id. at *4 (explaining that the disaster declaration placed stringent limitations on the food and service industry and also allowed for, “based on the course and development of the virus, that certain restrictions could be put back in place.”) (internal quotations and citations omitted).
 See id.
 See id. at *3 n.5 (“A waiver process whereby businesses could challenge their designation as ‘non-life-sustaining’ existed from March 19, 2020 until April 3, 2020.”).
 Butler, Fayette, Green, and Washington County all were parties to this action. However, the district court ultimately concluded that counties lacked standing to bring a suit under 42 U.S.C. § 1983. See id. at *5 (“Section 1983 does not confer any substantive rights, but rather, merely provides a cause of action for the deprivation of constitutional rights under the color of state law. Counties are creatures of the state. They do not possess rights under the Constitution. They cannot assert a claim against the state—of which they are a creation—for violating rights that they do not possess.”)
 See id. (“The Complaint asserted five counts under 42 U.S.C. 1983: Count I – Violation of The Takings Clause; Count II – Substantive Due Process; Count III – Procedural Due Process; Count IV – Violation of Equal Protection; and Count V – Violation of the First Amendment.”).
 See id. at *9 (“There is no question…that courts may provide state and local officials greater deference when making time-sensitive decisions in the maelstrom of an emergency. But that deference cannot go on forever.”).
 See id. at *25 (“Contrary to Defendants’ argument, the right of citizens to support themselves by engaging in a chosen occupation is deeply rooted in our nation’s legal and cultural history and has long been recognized as a component of the liberties protected by the Fourteenth Amendment.”).
 Id. at *25.
 Piecknick v. Comm. of Pa., 36 F.3d 1250, 1259 (3d. Cir. 1994) (citing Greene v. McElroy, 360 U.S. 474, 492 (1959)).
 County of Butler, 2020 WL 5510690,at *29.
 See id. at *26 (“Even with this forgiving standard as its guide, the Court nevertheless holds that the March 19, 2020 Order closing all ‘non-life sustaining’ businesses was so arbitrary in its creation, scope, and administration as to fail constitutional scrutiny.”).
 Id. at *27 (“The record shows that the Governor’s advisory team, which designated the Business Plaintiffs and countless other businesses throughout the Commonwealth as ‘non-life sustaining’…did so with no set policy as to the designation and…without ever formulating a set definition for ‘life-sustaining’ and…’non-life-sustaining.’”).
 Id. at *26 (citing Hurtado v. California, 110 U.S. 516, 527 (1884)).
 Id. at *31 (explaining that the distinctions made between life-sustaining and non-life-sustaining businesses “were arbitrary in origin and application”).
 See id. at *28 (“The policy team was not tasked with formulating a theoretical policy paper or standard to categorize abstract classes of business…Defendants and their advisors never formulated a set, objective definition in writing of what constitutes ‘life-sustaining.’”).
 Id. at *29.
 Id. at *28.
 Id. at *29.
 While many plaintiffs have cited County of Butler v. Wolf as a persuasive authority, federal district courts in other states have not been inclined to grant County of Butler legitimacy. See, e.g., Herrin v. Reeves, No. 3:20-CV-263-MPM-RP, 2020 WL 5748090 (N.D. Miss. Sept. 25, 2020) (denying the plaintiff’s motion to enjoin Mississippi Governor Tate Reeves’ various Covid-19 restrictions).