N.C. Supreme Court Reexamines Gov. Cooper’s COVID-era Lockdown

Thanks for joining us this Saturday morning.

On March 17, 2020, then-Gov. Roy Cooper ordered every restaurant and bar in North Carolina to close.

Last month, the North Carolina Supreme Court issued a landmark decision allowing two parallel lawsuits against the state to proceed under the Constitution’s “fruits of their own labor” clause.

We share with you below the contours of this under-covered but strikingly impactful legal battle.

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Ask a sample of people what year they’d most like to forget, and 2020 is likely to be a popular answer: a scary virus, an uncertain future, and never-before-tried government interventions, shaken together with headline-grabbing police excesses and racial unrest.

But the nationwide experiment in novel deployments of emergency authority must not be forgotten. When the country is confronted again with a pandemic, it will be critical to apply the legal and cultural (not to mention public health) lessons learned from 2020.

It’s in that context that the state Supreme Court last month permitted two parallel lawsuits, both from bar owners against the state, to continue to trial. (We’ll refer to the arguments in the cases – Howell v. Cooper and North Carolina Bar & Tavern Association v. Stein – interchangeably for clarity and to simplify this piece.)

A group of bar owners allege that the governor’s emergency order shutting down their businesses violated their constitutional rights, both on their own and when compared to other orders affecting similarly situated businesses.

Whereas the governor’s orders required bars to remain closed (or largely inoperable) for more than 400 days, he permitted other alcohol-selling businesses like restaurants, breweries, and wineries to reopen with certain restrictions. This different treatment, the plaintiffs claim, had no reasonable justification.

Justice Phil Berger, Jr., explained the argument, writing for the majority: “The Phase 2 reopening plan in Executive Order No. 141 permitted restaurants, tattoo parlors, breweries, wineries, distilleries, taprooms, bars in hotels, and other establishments to reopen under capacity limitations and other prescribed rules. But bars were again excluded from the reopening because they purportedly posed a greater risk of the spread of COVID when compared to other businesses.”

Former Department of Health and Human Services Secretary Mandy Cohen defended the decision as part of this case, telling a lower court that a key rationale for the different treatment was “the positive economic impact” that wineries and breweries contributed to the state, and that “the State has a strong economic interest in sustaining them.”

The lawsuits from the bar owners cite a right guaranteed by the North Carolina Constitution that is not found in the U.S. Constitution: “We hold it to be self-evident that all persons are. . .  endowed by their Creator with certain inalienable rights; that among these are life, liberty, the enjoyment of the fruits of their own labor, and the pursuit of happiness.”

Lawyers for the governor’s office tried to get the lawsuits dismissed, arguing the state has sovereign immunity from such claims and that emergency orders were reasonably based on scientific data.

Justice Paul Newby, writing for the majority in denying dismissal of one of the cases, argued, “By virtue of the enshrinement of the fundamental right to the fruits of one’s own labor, the basic promise of the state constitution is that government regulations of this right are open to scrutiny. It may be that the executive orders’ restrictions on bars were reasonably necessary, but the state constitution gives plaintiffs the opportunity to put them to the test.”

The cases will now proceed to trial.

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Looking back on COVID policies like this one is instructive and necessary. It may not be at the top of one’s list to think about, but many will recall the deep debates held across North Carolina over lockdown regulations.

For example, we distributed on this platform a letter from Temple Sloan, Jr., to Gov. Roy Cooper in April 2020. In that letter, Mr. Sloan wrote, “Now we need to hear a clear strategy to reopen the state’s economy. . . This must happen quickly, so that we recover at the same pace as the nation, if not ahead.”

And it was not just businesses targeted by the emergency orders, of course. Outdoor spaces – the very places people suffering from anxiety and loneliness most needed to access – were shut down, too. Playing on playgrounds was prohibited. Entering parks was against the law. Even our beaches were shut down. 

The national conversation has largely moved on from COVID-era debates and policies, but like most other things, history is bound to repeat itself. The bar owners’ lawsuits are not just about alcohol sales, or even about the hardships of 2020. They raise a deeper question about how far emergency powers can stretch before they collide with the constitutional rights of citizens. North Carolina’s highest court has now said those questions deserve their day in court.

However the trials unfold, they may force a public reckoning with how the government acted when fear was high and patience was thin.