Supplemental brief on Jacobson v. Massachusetts — Heights Apartments v. Walz (8th Cir.)

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UNITED STATES DISTRICT COURT 
 
DISTRICT OF MINNESOTA 
 
Heights Apartments, LLC, and Walnut 
Trails, LLLP, 
Plaintiffs, 
v. 
Tim Walz, in his official capacity as 
Governor of the State of Minnesota, and 
Keith Ellison, in his official capacity as 
Attorney General of the State of 
Minnesota, and John Doe, 
Defendants. 
 
Case No. 20-cv-2021 NEB-BRT
SUPPLEMENTAL MEMORANDUM OF 
LAW REGARDING JACOBSON V. 
MASSACHUSETTS  
 
 
Introduction 
Defendants make several references to Plaintiffs’ failure to cite their preferred case 
on this issue, Jacobson v. Massachusetts, 197 U.S. 11 (1905). Rather than examine why 
the case is important to this analysis, however, Defendants simply cherry-pick a sentence 
from the opinion in support of their position. The case is worth a full analysis in light of 
the heavy emphasis Defendants (and many courts) place on it. 
I. 
Factual Basis of Case and Holding 
Jacobson was a challenge to a Massachusetts statute allowing local governments to 
mandate vaccinations during the smallpox outbreak at the turn of that century, if they 
considered it necessary in their locality. 197 U.S. at 12. Jacobson, who had been criminally 
convicted for refusing and subjected to the $5 fine, challenged this law under the preamble 

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to the U.S. Constitution and the “spirit of the Constitution,” as well as the Fourteenth 
Amendment. Id. at 13–14. Essentially, this challenge was the equivalent to similar 
challenges today to mask mandates: The question presented was one of individual liberty 
versus a legislative determination related to public health. 
The Court in Jacobson analyzed the case as one of police powers, allowing that such 
power encompassed “such reasonable regulations established directly by legislative 
enactment as will protect the public health and the public safety.” 197 U.S. at 25 (citing 
cases). The Court noted the tension between the role of the Legislature—“[t]he good and 
welfare of the commonwealth, of which the legislature is primarily the judge, is the basis 
on which the police power rests in Massachusetts,” id. at 27—and the Judiciary—to protect 
against “police power” laws passed “in such an arbitrary, unreasonable manner, or might 
go so far beyond what was reasonably required for the safety of the public, as to authorize 
or compel the courts to interfere for the protection of such persons.” Id. at 28 (citing cases 
when “under the guise of exerting a police power, [health laws] invaded the domain of 
Federal authority, and violated rights secured by the Constitution, [and] this court deemed 
it to be its duty to hold such laws invalid.” Id.) It is in this context that the only quoted 
sentence of Jacobson in Defendants’ brief appears. 
If there is any such power in the judiciary to review legislative 
action in respect of a matter affecting the general welfare, it 
can only be when that which the legislature has done comes 
within the rule that, if a statute purporting to have been enacted 
to protect the public health, the public morals, or the public 
safety, has no real or substantial relation to those objects, or is, 
beyond all question, a plain, palpable invasion of rights secured 
by the fundamental law, it is the duty of the courts to so 
adjudge, and thereby give effect to the Constitution. 

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Id. at 31 (citing Mugler v. Kansas, 123 U. S. 623, 661 (1887); Minnesota v. Barber, 136 
U. S. 313, 320; Atkin v. Kansas, 191 U. S. 207, 223 (1903)). In each of the cited cases, just 
as in the cited passage above and the several pages of analysis preceding it, the Court was 
trying to avoid substituting its own judgment for that of the fully-formed factfinding of a 
legislature. See Mugler 123 U. S. at 661 (“Under our system that power is lodged with the 
legislative branch of the government”); Barber, 136 U. S. at 320 (“The rule is general, with 
reference to the enactments of all legislative bodies, that the courts cannot inquire into the 
motives of the legislators in passing them”) (quoting Soon Hing v. Crowley, 113 U.S. 703, 
710 (1885)); Atkin, 191 U. S. at 223 (“No evils arising from such legislation could be more 
far-reaching than those that might come to our system of government if the judiciary, 
abandoning the sphere assigned to it by the fundamental law, should enter the domain of 
legislation, and, upon grounds merely of justice or reason or wisdom, annul statutes that 
had received the sanction of the people's representatives.”) Executive power was not 
mentioned; the Court’s deference was to legislative fact-finding about medical issues. 
II. 
Jacobson Was Often Cited, But Historically For The Simple Proposition 
That Individual Liberty Is Not Absolute 
 
Despite Defendants’ assertions of the far-reaching scope of this new formulation of 
law, for well over a century Jacobson was often cited, but for the fairly unremarkable 
principle that individual liberty was not absolute, and the state possessed the police power 
to regulate the health of its citizens. See, e.g., Roe v. Wade, 410 U.S. 113, 154 (1973) (“The 
privacy right involved, therefore, cannot be said to be absolute. In fact, it is not clear to us 
that the claim asserted by some amici that one has an unlimited right to do with one's body 

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as one pleases bears a close relationship to the right of privacy previously articulated in the 
Court's decisions. The Court has refused to recognize an unlimited right of this kind in the 
past. Jacobson v. Massachusetts”); Planned Parenthood of Se. Pennsylvania v. Casey, 505 
U.S. 833, 857 (1992) (cited for the same principle); Washington v. Glucksberg, 521 U.S. 
702, 742 (1997) (citing Jacobson in examples recognizing “that this common-law right to 
refuse treatment is neither absolute nor always sufficiently weighty to overcome valid 
countervailing state interests”); Wisconsin v. Yoder, 406 U.S. 205, 230 (1972) (citing 
Jacobson as part of the argument that religious actions are “not totally free from legislative 
restrictions”); Employment Div., Dept. of Human Res. of State of Or. v. Smith, 485 U.S. 
660, 670 n.13 (1988) (same). Indeed, the same Court which issued Jacobson issued 
Lochner two months later and noted that Jacobson was “related to compulsory vaccination, 
and the law was held valid as a proper exercise of the police powers with reference to the 
public health . . . . That case is also far from covering the one now before the court.” 
Lochner v. New York, 198 U.S. 45, 56 (1905), abrogated in subsequent cases. “There is, in 
our judgment, no reasonable foundation for holding this to be necessary or appropriate as 
a health law to safeguard the public health, or the health of the individuals who are 
following the trade of a baker. The case differs widely, as we have already stated, from the 
expressions of this court in regard to laws of this nature.” Id. at 58 (citing Jacobson). Even 
the Court which issued both opinions did not regard Jacobson’s scope as broad enough to 
extend police powers from a doctor’s office to a bakery. 
 
When Jacobson has been cited by the high court in the context of emergency 
powers, the references have been spare, passing, or in dissent. See, e.g. Hamdi v. Rumsfeld, 

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542 U.S. 507, 592 (2004) (Thomas, J., dissenting) (citing Jacobson as part of the argument 
that the President’s decision for indefinite detention of U.S. citizens as enemy combatants 
“is necessary to protect the public need not and should not be subjected to judicial second-
guessing”). It was not cited, for instance, in Blaisdell, which invoked a national emergency 
to limit the rights of property owners to recover property by foreclosure. See Home Bldg. 
& Loan Ass’n v. Blaisdell, 209 U.S. 398 (1934). 
III. 
In The Closest Analogous Case, Jacobson Was Cited Only To Show That 
A Governor’s Executive Powers During An Emergency Should Be 
Limited Despite Jacobson 
The closest the case has ever come to being used by the Supreme Court in an 
analogous case was in Sterling v. Constantin. In that case, the governor of Texas had 
declared a state of emergency due to civil unrest and issued executive orders to the Texas 
National Guard “regulating and restricting the production of oil from complainants’ wells.” 
287 U.S. 378, 386–87 (1932). Naming the governor, adjutant general, and the brigadier 
general of the Texas National Guard as defendants, the plaintiffs (private companies whose 
wells were subject to interference by these executive orders) requested an injunction. Id. 
The Court quickly dismissed the defendants’ arguments—also made in this case—that it 
lacked jurisdiction on Eleventh Amendment immunity grounds. Id. at 393. The Court then 
abstained on the argument—not made by Plaintiffs in this context—that Texas law did not 
grant the governor the emergency powers he claimed. Id. at 396. The Supreme Court then 
addressed the crux of the question presented by Defendants here, and unanimously and 
roundly rejected it at some length. 

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Third. The existence and nature of the complainants' rights are 
not open to question. Their ownership of the oil properties is 
undisputed. Their right to the enjoyment and use of these 
properties, subject to reasonable regulation by the state in the 
exercise of its power to prevent unnecessary loss, destruction, 
and waste, is protected by the due process clause of the 
Fourteenth Amendment. [citing cases] . . . [A]ppellants assert 
that the court was powerless thus to intervene, and that the 
Governor's order had the quality of a supreme and 
unchallengeable edict, overriding all conflicting rights of 
property and unreviewable through the judicial power of the 
federal government. 
 
If this extreme position could be deemed to be well taken, it is 
manifest that the fiat of a state Governor, and not the 
Constitution of the United States, would be the supreme law of 
the land; that the restrictions of the Federal Constitution upon 
the exercise of state power would be but impotent phrases, the 
futility of which the state may at any time disclose by the 
simple process of transferring powers of legislation to the 
Governor to be exercised by him, beyond control, upon his 
assertion of necessity. Under our system of government, such 
a conclusion is obviously untenable. There is no such avenue 
of escape from the paramount authority of the Federal 
Constitution. 
As the dagger in Defendants’ position, the Court went on in the very next paragraph to note 
that its decision was taken in full recognition of the precedent of Jacobson. Id. at 398–99.1 
 
1 Unlike Jacobson, Sterling has been cited often by the majority or concurrence in cases 
involving executive authority in times of conflict. See, e.g., Duncan v. Kahanamoku, 327 
U.S. 304, 335 (1946) (Stone, C.J., concurring) (despite the attack on Pearl Harbor, “the 
exercise of the [executive] power may not extend beyond what is required by the exigency 
which calls it forth”); Cooper v. Aaron, 358 U.S. 1, 18 (1958) (holding that a governor and 
school board could not “war against the Constitution” by resisting school integration); 

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IV. 
Jacobson’s New Life During The COVID-19 Pandemic 
The Supreme Court has not had the occasion as yet to issue a final opinion on the 
COVID-19 pandemic as it relates to Jacobson’s new interpretation in the last six months, 
but has cited the case in three opinions concurring or dissenting from the denial of an 
application or stay of an injunction related to the pandemic. In only one of them was 
Defendants’ position addressed directly. Justice Alito, writing for three justices who 
dissented from the denial of the application for an injunction against certain executive 
orders by the Governor of Nevada, cautioned that 
[l]anguage in Jacobson must be read in context, and it is 
important to keep in mind that Jacobson primarily involved a 
substantive due process challenge to a local ordinance 
requiring residents to be vaccinated for small pox. It is a 
considerable stretch to read the decision as establishing the test 
to be applied when statewide measures of indefinite duration 
are challenged under the First Amendment or other provisions 
not at issue in that case. 
 Calvary Chapel Dayton Valley v. Sisolak, 140 S. Ct. 2603, 2608 (2020) (Alito, J., 
dissenting). 
 
Hamdi v. Rumsfeld, 542 U.S. 507, 535 (2004) (plurality opinion) (in the War on Terror, 
affirming right to impartial adjudicator of government’s claim of enemy combatant status). 
See also Toyosaburo Korematsu v. United States, 140 F.2d 289, 297 (9th Cir. 1943), aff'd 
sub nom. Korematsu v. United States, 323 U.S. 214 (1944) (Denman, J, dissenting in part 
from internment of Japanese-Americans). 
 
 

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This is the correct analysis. For more than a century after it was issued Jacobson 
lived an uneventful life, standing for a principle so unremarkable that it was frequently 
mentioned and rarely examined. Now the effects of the recent emergency have breathed 
into it not new life, but a different life. It is no longer cited for the principle it was cited for 
in Roe and Casey, and Glucksburg, and Yoder and Smith: that a person’s individual liberty 
is not absolute, but must bow to reasonable restrictions based on valid uses of police power. 
It no longer gives the gentler guidance it was read to hold in the years following its 
issuance. See German All. Ins. Co. v. Hale, 219 U.S. 307, 317 (1911) (citing Jacobson to 
hold that “the state may, in the exercise of its police power, and in harmony with its own 
and the Federal Constitution, prescribe for the public convenience and the general good”) 
(emphasis added). It no longer is subject to the warnings in Jacobson itself, which the 
Eighth Circuit interpreted to mean that “[t]he reserved police power of the state must stop 
when it encroaches on the protection accorded the citizen by the Federal Constitution.” 
Women's Kansas City St. Andrew Soc. v. Kansas City, Mo., 58 F.2d 593, 598 (8th Cir. 
1932) (citing Jacobson and similar cases). Instead, a flood of cases during the pandemic 
have given it exactly the inverse reading and a scope that is almost boundless. 
As of October 19, 2020, of the 453 times Jacobson has been cited by the federal 
courts, 154 have come since the start of the pandemic; that is, over one-third of all federal 
citations to Jacobson over the previous one hundred and fifteen years have come in the last 
six months. Twenty of the citations came between the filing of Plaintiffs’ initial 
memorandum and Defendants’ response. Now, some courts are interpreting Jacobson to 
hold that “[d]uring an epidemic, the Jacobson court explained, the traditional tiers of 

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constitutional scrutiny do not apply.”2 Cassell v. Snyders, 20 C 50153, 2020 WL 2112374, 
at *6 (N.D. Ill. May 3, 2020), on appeal to Seventh Circuit (cited in Def. Br., 13). This 
Court, following the Fifth Circuit, has taken the position that “Jacobson instructs that all 
constitutional rights may be reasonably restricted to combat a public health emergency.” 
Lewis v. Walz, CV 20-1212 (DWF/HB), 2020 WL 5820549, at *4 (D. Minn. Sept. 30, 
2020) (quoting In re Abbott, 954 F.3d 772, 786 (5th Cir. 2020)) (emphasis in original). The 
Eighth Circuit in In re Rutledge held that in the face of a crisis, Jacobson imposes a higher 
standard than any known to law: that only “fundamental” rights are subject to protection 
from abuse of police powers, and even then only on a showing “beyond all question” that 
there is a “plain, palpable” invasion of that right, or a showing that the state lacks a “real 
and substantial relation” to the crisis. 956 F.3d 1018, 1028 (8th Cir. 2020) (emphasis 
added). 
As this Court has noted, other district courts have not taken such a sweeping view 
of Jacobson. 2020 WL 5820549 at *4, n.5 (citing Cnty. of Butler v. Wolf, —F.3d—, Civ. 
No. 20-677, 2020 WL 5510690, at *9-10 (W.D. Penn. Sept. 14, 2020)); see also Bayley's 
Campground, Inc. v. Mills, — F. Supp. 3d ––, 2020 WL 2791797 (D. Me. May 29, 2020). 
The sudden onslaught in the last few months of this new interpretation of Jacobson as a 
sweeping emergency-powers decision should show the Court that this is an example of an 
analysis seeking a precedent, rather than precedent driving analysis.  
 
2 This argument ignores the fact that, in 1905, even the idea of “tiers” of constitutional 
scrutiny would not exist for another 33 years. United States v. Carolene Products Co., 304 
U.S. 144, 152 n.4 (1938). 

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Conclusion 
 
For the reasons set forth above, until this year Jacobson v. Massachusetts has been 
consistently used for the narrow holding individual liberty is not absolute in the face of 
valid police powers of the state to regulate the health of its citizens. Its new formulation as 
a case standing for the proposition that during an emergency, all civil rights are subject to 
encroachment is a wholly new and incorrect reading of the case. Despite a single, ill-used 
line, Jacobson is not applicable to this case. 
 
 
 
 
 
 
 
Respectfully submitted, 
Dated:  October 23, 2020  
HANSEN, DORDELL, BRADT, ODLAUG 
& BRADT, P.L.L.P. 
By:  /s/  Michael Kemp                     
 
     Michael Kemp #390426 
Attorneys for Plaintiff 
3900 Northwoods Drive, Suite 250  
St. Paul, MN 55112-6973  
651/332-8734 
mkemp@hansendordell.com

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