At City Journal Larry Salzman analyzes the prospects for suing our way out of state lockdowns. The prospects are, at best, mixed but here’s the bottom line:
To date, most rulings in cases challenging the lockdowns have favored the government. But the longer the lockdowns go on and the less necessary that they seem, the more scrutiny we can expect courts to apply. As the Supreme Court put it in its Jacobson ruling, more than a century ago, a law that “purport[s] to have been enacted to protect the public health” but “has no real or substantial relation to those objects” must be found unconstitutional.
I would also think that the longer the lockdowns last, the more burden the state should have to bear to show that such a broad application of emergency powers is warranted.
Holding your breath can only be maintained for so long.
I also think that the failure of governors to seek the support of the states’ legislatures is a major omission. Legislatures have many purposes. Among them are to share the political pain and to signify the consent of the people.