Op-Ed: The judge who ruled in favor of outdoor dining was wrong. Here’s why

The tentative ruling Tuesday by a Los Angeles Superior Court judge to enjoin a ban on outdoor dining in Los Angeles County ignores a fundamental constitutional principle: Government regulation of business is allowed as long as it is reasonable. The government does not need to prove that an action is necessary, or even that it will work. Unless the government’s action is irrational or serves no conceivable legitimate purpose, it must be upheld.

This is not a new principle. Since 1937, without exception, the U.S. Supreme Court has recognized the need for judicial deference to government regulation of business and the economy. Indeed, not once in the last 83 years has the Supreme Court declared government regulation of business unconstitutional on grounds that a business was deprived of revenue without due process of law.

The courts have also allowed the government great leeway in making reasonable efforts to stop the spread of disease, and courts are not supposed to second-guess government actions to protect public health in a pandemic.

As Chief Justice John G. Roberts Jr. put it in a May Supreme Court ruling, when public health “officials undertake to act in areas fraught with medical and scientific uncertainties, their latitude must be especially broad.” He explained that “[w]here those broad limits are not exceeded, they should not be subject to second-guessing by an ‘unelected federal judiciary,’ which lacks the background, competence, and expertise to assess public health and is not accountable to the people.”

This principle has a long legal history. In 1905, the Supreme Court upheld a controversial compulsory vaccination law, concluding that government actions taken to stop the transmission of a potentially deadly disease are to be upheld so long as they are reasonable. Over the last nine months, almost without exception, courts across the country have applied this principle to uphold orders for business closures, travel restrictions and other steps to stop the spread of COVID-19.

In light of these firmly established principles of constitutional law, it was surprising that L.A. Superior Court Judge James C. Chalfant issued a tentative ruling Tuesday in favor of the California Restaurant Assn. In a strongly worded opinion, Chalfant rebuked L.A. County public health officials, saying the indefinite ban on outdoor dining announced late last month was “unsupported by any findings” and an abuse of emergency powers. He ordered the county to conduct a risk-benefit analysis if it wants to extend the ban beyond Dec. 16.

Chalfant said that cases traced back to bars and restaurants accounted for just 3.1% of the nonresidential outbreak locations, “the vast majority of which were chain/fast food type restaurants” and almost exclusively involved employees rather than customers. He also wrote that the county’s logic behind the closure “ignores the outdoor nature of the activity, which the CDC says carries only a moderate risk.”

In so ruling, Chalfant substituted his analysis for that of county public health officials and clearly misapplied the law. When there is a constitutional challenge to a government regulation of business, including when a regulation is intended to stop the spread of a communicable disease, courts may ask two — and only two — questions. First, is there any conceivable legitimate purpose for the government’s action? Second, is the government’s action irrational as a way to achieve the goal?

The answer to both of these questions should be obvious in the current circumstances. The pandemic is surging alarmingly. Over the last week, the state has averaged 24,882 new coronavirus cases per day, an increase of 86.4% over two weeks ago. On Tuesday, 35,400 new California coronavirus cases were reported along with 219 related deaths. COVID-19 hospitalizations have never been higher in the state, jumping 81% just in the last two weeks. Intensive care units are running out of room.

Against that background of raging illness and death, how can closing outdoor dining be deemed irrational? Aside from the danger of the disease being spread in that setting, the ban also serves to encourage people to remain home and to limit gatherings. These are surely reasonable actions to limit the spread of COVID-19.

Of course, people can disagree about the desirability of any restriction. No one likes being constrained, and there are certainly huge economic costs to closing outdoor dining. But under constitutional principles it is for public health officials, not judges, to make the call. Chalfant called for balancing the public health consequences against the economic costs of closures. But under well-established principles of constitutional law, this is a balancing left to elected leaders and public health officials; not to the courts.

Countless other court challenges to pandemic restrictions are pending in California and other states. Chalfant’s order is sure to be widely cited by challengers. But it is clearly and dangerously wrong.

Erwin Chemerinsky is dean of the UC Berkeley School of Law and a contributing writer to Opinion.