COVID Era Regulations in the Absence of Federal Coordination: How the Dormant Commerce Clause Can Co-Exist with Effective State Contact Tracing Regulations

Contact tracing emerged during the beginning of the COVID-19 pandemic as an important tool to reduce the spread of COVID-19. The use of cell phone applications provides a method to effectively trace potential exposures since most individuals carry cell phones that can easily gather the necessary data. The federal government has thus far failed to introduce its own regulations regarding the large volume of data that can be collected during contact tracing efforts or attempt to help coordinate the regulations of the individual states to ensure consistency; paving the way for a patchwork system of rules to govern, as each state is left to formulate its own method to protect the health and privacy of its residents. However, due to the volume of interstate travel and difficulty of restricting application usage based on state borders, states must be careful not to run afoul of the so-called “Dormant Commerce Clause” of the United States Constitution. In this Contribution, Kenneth Brown (’22) argues that it is possible for a state to effectively regulate con-tact tracing applications without violating the Constitution.

Solitary Confinement Imposed in Response to the COVID-19 Pandemic Entitles Incarcerated Individuals to Procedural Due Process

After medical experts advised social distancing and quarantining in response to the COVID-19 pandemic, many prisons assigned incarcerated persons to solitary confinement. This situation raises the question of whether an incarcerated individual is entitled to due process when they are placed in indefinite solitary confinement for their medical protection or to prevent the spread of a virus. In this Contribution, Julia Leff (’22) argues that the uncertainty regarding the length of the COVID-19 pandemic is sufficient to provide an incarcerated individual his right to procedural due process under the Fourteenth Amendment.