When Governors Prioritize Individual Freedom over Public Health: Tort Liability for Government Failures.

Abstract

Over half the states have enacted laws diminishing or curtailing the rights of the executive branch (legislatures or governors) to enact laws to preserve, protect, or safeguard public health in the wake of the COVID-19 emergency. Governor DeSantis, of Florida, for example, effectively banned mask mandates in schools during the high point of the epidemic--based on flawed science and erroneous data--and now wants to make that response permanent. The rules effectuating this Executive Order were enacted under an emergency order finding a threat to public health. Nevertheless, the response promulgated by the Florida Department of Health was to prevent public health measures, favoring individual liberties, parental rights (which have previously been held not to apply in the context of the spread of contagious disease epidemics) at the expense of public health and safety. This article explores alternative means to compel state governments, heretofore vested with the police power to protect public health, to comply with this obligation, using the Florida situation as a case study.