One of the many consequences of the coronavirus pandemic has been a rediscovery of the importance of state governments and an awareness of the extensive emergency powers of state officials, especially governors. In this essay I analyze the emergency powers of state governments and officials and draw four lessons about ways that the coronavirus pandemic has illuminated and reinforced our understanding of state governing authority in the U.S. federal system.
First, although many commentators have been surprised by the prominent role of state governments and officials in responding to COVID-19, this turns out not to be so surprising once we consider that state governments actually possess more power than the federal government in responding to a health crisis in key ways.
Second, and this is less surprising but has not been fully appreciated before now, when we consider which state officials are the key actors in a health crisis, that governors are in most states authorized by state statutes to act unilaterally and in sweeping fashion in responding to emergencies. In fact, the extensive exercise of gubernatorial emergency power in recent months is already leading citizens and officials in some states to revisit emergency-power arrangements and consider possible changes that would require more sharing of emergency power with legislators.
Third, in considering state officials’ authority to restrict the activities of individuals and other organizations, courts have occasionally imposed limits on the exercise of state emergency power, especially in regard to religious services, but for the most part judges have relied on longstanding precedents that allow state officials to restrain individual liberty when combatting infectious diseases. There may not be a pandemic exception to federal or state bills of rights; but judges are willing to grant state officials a significant amount of deference in responding to health crises.
Fourth, when considering state government authority relative to local governments, recent developments demonstrate that during emergencies state officials can preempt actions of city and county officials not only in Dillon’s rule states where localities enjoy limited authority but also in home-rule states where localities enjoy independent governing authority. Occasionally, local officials act in advance of state-wide emergency directives and maintain policies that differ from the orders in effect at the state level. However, to the extent that local governments have been able to enforce policies that run counter to state-wide directives during a health emergency, it is because governors allow them to do so.
Emergency Powers of State Governments Relative to the Federal Government
Americans’ widespread expectation that the federal government possesses powers that are in all respects more expansive than powers exercised by state governments is in one sense understandable. Textbooks may well provide accurate instruction when they explain that the framers of the U.S. Constitution created a federal government of enumerated rather than plenary powers and that this was reaffirmed several years later with passage of the Tenth Amendment reserving to states or the people all powers not delegated to the federal government. However, during a six-decade period during the 20th century, the U.S. Supreme Court issued a series of rulings that could have been understood as signaling that there were no meaningful constitutional limits, as opposed to rights-based limits, on the exercise of federal power. Even after Supreme Court rulings in the 1990s and early 2000s invoked the Commerce Clause, Tenth Amendment, Eleventh Amendment, and enforcement clause of the Fourteenth Amendment to limit the reach of federal authority, it is understandable that scholars, citizens, and public officials might still assume that for all practical purposes the federal government possesses plenary power.
According to this popular understanding, even if the federal government does not have plenary power in ordinary times, at the least it is thought that federal officials can exercise all powers necessary to respond to a crisis and can prevail over contrary state decisions. This view was expressed most famously by President Trump when he was asked at an April 14, 2020 news conference whether the president or the governors had the authority to lift stay-at-home orders and other shutdown policies. He initially responded that the president’s “authority is total” relative to states, before taking back this statement over the next several days.[1]
As numerous scholars and citizens were led to proclaim in response to Trump’s claim of total authority, and in a way that led the term Tenth Amendment to trend on social media, the conventional understanding is incorrect. The federal government does not possess plenary power, even during emergencies. In fact, in several respects, federal officials actually possess less authority than state officials in responding to a health crisis.
The federal government does not possess plenary power, even during emergencies. In fact, in several respects, federal officials actually possess less authority than state officials in responding to a health crisis.
Consider the powers available to federal government officials in responding to a pandemic. The federal government has sole authority to restrict persons from entering the country – a power President Trump exercised in recent months in barring foreign nationals from traveling to the U.S. from China, Europe, and various other countries.[2] Federal officials can also order the isolation or quarantine of individuals with communicable diseases who are seeking to enter the country or cross state lines.[3] Although at one point the president floated the idea of going further and barring travel of any persons across certain state lines, it is at least uncertain, and highly doubtful, that the president could actually exercise such a power. Additionally, as a result of congressional passage of the Defense Production Act of 1950 and subsequent amendments, the president can direct, and on various occasions has directed, businesses to prioritize production of certain materials necessary to respond to national emergencies.[4] Congress can also fund research to develop vaccines and treatments and stockpile pharmaceutical drugs and protective equipment, such as by creating and restocking the Strategic National Stockpile in 1999.[5]
In several key respects, state governments possess even more authority than the federal government in responding to a health crisis, because states possess the “police power,” which includes promotion of public health and has long been exercised by and reserved to state governments. Only state governments can issue and enforce stay-at-home orders that apply broadly to all persons and go beyond limiting the movement of individuals known to have communicable diseases.[6] The federal government clearly lacks the authority to issue the broad shelter-in-place orders promulgated in all but a handful of states in recent months. Additionally, state and local governments can order businesses to close or permit them to reopen, which federal officials lack the power to do.[7] Meanwhile, although this particular power has not yet been exercised in recent months but has been exercised during prior disease outbreaks, state and local governments can order individuals to be vaccinated, something that the federal government is again powerless to require.[8] A significant part of the governmental response to COVID-19 has, therefore, taken the form of actions that federal officials are powerless to undertake and can only be promulgated by state and local officials.
Emergency Powers of State Governors Relative to Other State Officials
If state governments are the primary actors in the U.S. federal system in responding to health emergencies, in large part because states possess the “police power,” governors are the most important state officials, by virtue of state statutes empowering governors to declare emergencies and exercise extensive emergency powers. It is no surprise that the executive branch is designated to respond to emergencies in crisis situations. This is in keeping with the nature of executive power at all levels of government. What is somewhat more surprising is the far-reaching nature of the powers explicitly granted to governors in state emergency-power statutes, which go quite far in spelling out in detailed and extensive fashion the significant powers governors can exercise in declaring emergencies and issuing emergency directives.
Scholars, citizens, and public officials have had little prior occasion to scrutinize these state emergency statutes. In coastal states where governors routinely declare emergencies during hurricanes and other weather-related disasters there is some familiarity with governors’ emergency powers. For the most part, state emergency laws have not drawn much attention. The coronavirus pandemic has changed this, by highlighting the extraordinary authority of governors in emergencies.[9]
For the most part, state emergency laws have not drawn much attention. The coronavirus pandemic has changed this, by highlighting the extraordinary authority of governors in emergencies.
This newfound attention to governors’ emergency powers has, in turn, prompted a reassessment of these arrangements and led in some cases to calls to cut back on governors’ ability to exercise emergency powers unilaterally.[10]
The 50 states’ emergency statutes vary slightly in their provisions for declaring emergencies. In all but two states, governors can declare an emergency without any need to secure legislative approval.[11] Georgia and Oklahoma require the legislature to affirm an initial gubernatorial declaration of emergency. In both states, once the governor declares an emergency he must immediately call the legislature into special session for the purpose of approving or terminating the emergency declaration.
State emergency laws exhibit much wider variation in their procedures for continuing or terminating emergency declarations and any possible role for legislators in making these decisions.[12] In a significant number of states the governor can exercise emergency powers for an unlimited period of time and without any opportunity for the legislature to terminate an emergency declaration. In other states, the legislature can by concurrent resolution bring an end at any time to an emergency declaration. Meanwhile, several states provide another means of limiting gubernatorial emergency powers, by stipulating that an emergency declaration can only remain in effect for a specific period of time, unless it is renewed. Generally, the governor can renew an emergency declaration unilaterally; but a handful of states require the legislature to give affirmative approval to a renewal. For instance, rather than merely permitting the legislature to vote to terminate a governor’s emergency declaration, as is provided in a number of states, one of a pair of emergency statutes in Michigan goes further and requires an affirmative legislative vote before the governor can renew an emergency declaration under this particular statute.[13]
Not surprisingly, after some governors have maintained stay-at-home orders and business-shutdown policies for extended periods of time in response to COVID-19, some state officials have recommended that changes be made in the balance of gubernatorial and legislative power in declaring and continuing emergencies.[14] Reformers have generally pressed to allow the legislature to terminate emergency declarations in states where legislators do not already possess such a terminating power. Some other proposals would go further by requiring governors to secure legislative approval to continue emergency declarations beyond a certain time. One statutory change that has already been enacted in response to the coronavirus, in Utah, is more modest and simply requires the governor to notify select members of the legislature before issuing an emergency declaration.[15]
State Emergency Powers Vis-à-Vis Civil Liberties
For many persons, the most striking aspect of the governmental response to the coronavirus pandemic has been the issuance of state directives prohibiting certain activities and restricting individual liberty in ways not possible in ordinary times. When these restrictions have been challenged, courts have in the vast majority of cases sustained them, although judges have occasionally enjoined restrictions that apply to particular activities such as abortion providers and religious services. The lesson to be drawn from these recent rulings is that courts take a very deferential approach when reviewing public-health restrictions and rely heavily on a 1905 U.S. Supreme Court decision in Jacobson v. Massachusetts that accords significant deference to public officials in combatting infectious diseases and imposing restraints on individual liberty.[16]
In upholding a mandatory vaccination policy implemented to control a smallpox outbreak in Cambridge, Massachusetts, the Supreme Court in the 1905 Jacobson cases indicated that individual liberties can be restrained when public officials deem this to be necessary to protect the public health. As a general principle, the Court noted, “the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint.” The Court explained that “in every well ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.” Such restraints are particularly understandable, the Court concluded, when public officials are protecting the community against infectious diseases: “Upon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.”
Although the Supreme Court in Jacobson concluded that individual liberty can be limited in a health crisis and state and local officials should be accorded great deference during such a crisis, the Court made clear that judicial protection of individual rights during a health emergency is appropriate in certain circumstances. In particular, the Court explained that the “power of a local community to protect itself against an epidemic threatening the safety of all might be exercised in particular circumstances and in reference to particular persons 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.”
To a remarkable degree, the framework and reasoning in the 115-year-old Jacobson ruling continue to guide state and federal courts in deciding cases challenging state public-health restrictions as violations of civil liberties. Judges have generally been reluctant to invalidate state directives issued in response to the coronavirus. In a few cases, to be sure, courts have issued rulings invalidating state shutdown orders for running afoul of the processes by which these directives can be issued, as in rulings issued by the state supreme court in Wisconsin,[17] and by a state circuit court judge in Oregon in a ruling has been appealed.[18] For the most part, courts have refrained from invalidating broad shut-down orders and have relied on the Supreme Court’s reasoning in Jacobson to explain and justify deferential decisions.
Even on the infrequent occasions when judges have ruled that recent state emergency directives violate individual liberties, these rulings rely on the framework and logic in Jacobson in determining that certain directives are arbitrary or unreasonable or extend beyond what is necessary to protect the public health. When a number of governors responded to the coronavirus by barring elective surgery and stipulating that most abortion procedures were covered by this prohibition, a number of federal judges barred enforcement of these restrictions.[19] U.S. District Judge for the Western District of Oklahoma Charles B. Goodwin’s ruling limiting the reach of an Oklahoma abortion restriction was grounded in reasoning that is typical of federal judges’ rulings in these cases.[20] Judge Goodwin explained that the Jacobson precedent counsels a degree of deference to state officials’ determination that public health concerns required a suspension of non-emergency abortions. However, beyond a certain point in time, Goodwin concluded, such a restriction would be “invalid as an ‘unreasonable,’ ‘arbitrary,’ and ‘oppressive’ use of the State’s emergency powers and as an ‘undue burden’ on the right of Plaintiffs’ patients to access abortion services.”
In several other cases, federal courts have ruled that gubernatorial directives violate religious liberty because they treat churches differently from other organizations and thereby run afoul of Supreme Court precedents barring actions that might be seen as burdening the exercise of religion in an intentional manner. In siding with churches that challenged a Kentucky gubernatorial order limiting drive-in religious services, the U.S. Court of Appeals for the Sixth Circuit acknowledged that the governor’s order was issued with an eye “to lessen the spread of the virus” and entitled to deference according to the Jacobson precedent. However, after pointing out that the governor’s order treated churches differently than other organizations, the Court concluded that “restrictions inexplicably applied to one group and exempted from another do little to further these goals and do much to burden religious freedom.”[21]
U.S. District Judge for the Eastern District of North Carolina James C. Dever III relied on similar reasoning in barring enforcement of a North Carolina gubernatorial order limiting the circumstances when more than ten persons could attend in-person religious services.[22] Judge Dever acknowledged that “under Jacobson, the state has significant power to legislate in the public interest during public health emergencies.” However, after noting that “the Governor appears to trust citizens to perform non-religious activities indoors (such as shopping or working or selling merchandise) but does not trust them to do the same when they worship indoors together,” the judge concluded that in this case it is evident that “religious entities and individuals are not subject to a neutral or generally applicable law.” As a result, the judge held that the governor’s order could not be enforced in such a way as to limit religious services.
The lesson to be drawn from recent court rulings is that state officials possess significant discretion and are accorded a great deal of deference when taking action during a health crisis. It is certainly true, as Judge Dever proclaimed in the recent North Carolina religious liberty case, that “There is no pandemic exception to the Constitution of the United States or the Free Exercise Clause of the First Amendment.” To this end, state emergency orders have occasionally been found to violate this provision or other provisions of federal or state bill of rights. However, it also remains the case, as Judge Dever also noted, that, “Although 115 years old, Jacobson remains the lodestar in striking the balance between constitutional rights and public safety,” thereby according significant, but not unlimited, deference to state officials in determining the proper balance of individual rights and public health.
State Emergency Powers and Local Government Authority
Although discussions of intergovernmental conflict in the U.S. tend to focus on relations between state and federal governments, some of the fiercest conflicts in recent years have pitted state governments against local governments. As local governments have sought to raise the minimum wage, enact firearms limits, regulate fracking, and protect transgender rights, in the face of state government opposition, a number of states have responded by preempting these and other local government actions.[23] State governments that operate under Dillon’s rule, where local governments can only exercise powers delegated to them by the state, stand a good chance of prevailing in disputes stemming from challenges to these state preemption statutes. However, the outcome of these disputes is often different in home-rule states, especially when constitutional provisions entrust local governments with independent governing authority.
At a time when some local governments have been quite active in responding to the coronavirus pandemic, this standard framework for determining the extent of local government authority turns out to be in some ways helpful but in other respects inapplicable in emergency situations. In several home-rule states, such as California, county officials issued stay-at-home directives before the governor issued a state-wide directive and were able to enforce these policies prior to issuance of the state-wide directive, in a way that reflects the independent governing authority of localities in these states.[24] However, in some other states where local governments enjoy some degree of home-rule powers, cities sought to issue stay-at-home orders or other directives that exceeded statewide directives but were advised by state attorneys general that these local policies were preempted by the governor’s emergency directives. As a result, several cities in South Carolina that sought to issue stay-at-home orders in March 2020 prior to issuance of a state-wide order were prevented from enforcing them.[25] In a similar fashion, various cities and counties in Texas were prevented in May 2020 by a state attorney general opinion from maintaining stricter local policies, such as requiring widespread wearing of masks, after the governor eased state-wide directives.[26]
The lesson to be drawn about the balance of power between state and local governments during emergencies is that local officials enjoy less independent governing authority than in ordinary times. In many cases, state emergency statutes stipulate explicitly or have been interpreted as providing that gubernatorial emergency orders prevail over contrary local government directives, even though local governments would ordinarily enjoy a measure of independent authority. To the extent that local governments are able to maintain different policies from state-wide directives by adopting either more or less restrictive policies, it is at the sufferance of or with the acquiescence of the governor.[27]
Conclusion
State governments have attracted increased attention during the last decade on account of their policy activism in response to congressional gridlock in areas such as immigration, environmental protection, marijuana legalization, and firearms regulation. However, state officials’ prominence in responding to COVID-19 has highlighted for a broad audience the importance of state governments, in a way that goes well beyond the attention states have drawn on account of their policy innovation in recent years. The recent focus on state governments offers a helpful reminder that the U.S. federal system does not allocate plenary power to the federal government; a number of important powers are exercised by state governments, even during emergencies. State governmental responses to the coronavirus have also prompted a consideration of the allocation of emergency power within state governments and an awareness of the expansive authority exercised by governors; this has in turn generated calls for placing additional checks on gubernatorial power. Still another lesson to be drawn from recent developments is that courts have traditionally accorded state officials’ great deference in controlling infectious diseases and, as necessary, restraining personal liberty, although these restraints can occasionally be deemed illegitimate, as seen especially with several recent rulings barring enforcement of restrictions against churches. Finally, focusing on the allocation of power between state and local governments makes clear that although in ordinary times local governments in some states enjoy a measure of independent governing authority, during emergency situations local officials have much less authority to enact policies that differ from state-wide directives.
References
[1] Axios, “Trump claims ‘authority of the president is total’ to reopen states,” April 14, 2020, https://www.axios.com/trump-coronavirus-president-authority-337f62ca-e867-49ec-aa57-f3096787b8ba.html [2] Congressional Research Service, COVID-19: Federal Travel Restrictions and Quarantine Measures (Updated May 28, 2020), https://crsreports.congress.gov/product/pdf/LSB/LSB10415 [3] Centers for Disease Control and Prevention, Legal Authorities for Isolation and Quarantine, https://www.cdc.gov/quarantine/aboutlawsregulationsquarantineisolation.html
[4] Congressional Research Service, The Defense Production Act of 1950: History, Authorities, and Considerations for Congress (Updated March 2, 2020), https://fas.org/sgp/crs/natsec/R43767.pdf [5] U.S. Department of Health and Human Services, Stockpile Response, https://www.phe.gov/about/sns/Pages/responses.aspx
[6] Jared P. Cole, Federal and State Quarantine and Isolation Authority (Congressional Research Service, October 9, 2014), https://fas.org/sgp/crs/misc/RL33201.pdf; National Conference of State Legislatures, State Isolation and Quarantine Statutes (February 27, 2020), https://www.ncsl.org/research/health/state-quarantine-and-isolation-statutes.aspx [7] A comprehensive compilation of state directives in response to COVD-19, including business-closure directives, is available at Council of State Governments, COVID-19 Resources for State Leaders: Executive Orders, https://web.csg.org/covid19/executive-orders/. [8] Congressional Research Service, An Overview of State and Federal Authority to Impose Vaccination Requirements (May 22, 2019), https://fas.org/sgp/crs/misc/LSB10300.pdf. [9] A particularly valuable compilation of many of these state emergency statutes is found in Benjamin Della Rocca et al., “State Emergency Authorities to Address COVID-19, Lawfare (May 4, 2020), https://www.lawfareblog.com/state-emergency-authorities-address-covid-19
[10] Dan McConchie, “Limit Governors’ Emergency Powers,” Wall Street Journal, April 30, 2020, https://www.wsj.com/articles/limit-governors-emergency-powers-11588288560 [11] Ibid.
[12] National Conference of State Legislatures, Legislative Oversight of Executive Emergency Powers (May 27, 2020), https://www.ncsl.org/research/about-state-legislatures/legislative-oversight-of-executive-orders.aspx.
[13] Michigan has two emergency power statutes: the Emergency Powers of Governor Act of 1945 and the Emergency Management Act of 1976. The 1978 Act requires an affirmative vote of the legislature to renew an emergency declaration beyond 28 days. The 1945 Act does not include such a requirement In reaction to the coronavirus, the Michigan legislature did not approve an extension of the governor’s emergency declaration after expiration of the 28-day period. However, the governor was able to rely on the 1945 Act to continue exercising emergency powers. Paul Egan, “Michigan’s governor and emergency powers: What you need to know,” Detroit Free Press, April 30, 2020, https://www.freep.com/story/news/local/michigan/2020/04/30/heres-what-know-emergency-powers-mich-governors/3045535001/.
[14] Such an effort in Michigan is discussed in Craig Mauger, “Shirkey: Petition Drive to Limit Gov’s Emergency Powers ‘No. 1 Priority,’” Detroit News, May 4, 2020, https://www.detroitnews.com/story/news/politics/2020/05/04/shirkey-petition-drive-limit-michigan-governor-emergency-powers-no-1-priority/3077087001/
[15] Connor Richards, “Herbert signs bill requiring governor to notify lawmakers before pandemic responses,” Daily Herald, May 12, 2020, https://www.heraldextra.com/news/local/govt-and-politics/legislature/herbert-signs-bill-requiring-governor-to-notify-lawmakers-before-pandemic-responses/article_675e371c-d3e6-555e-a788-c25ca4c24adc.html
[16] 197 U.S. 11 (1905).
[17] Wisconsin Legislature v. Palm, No. 2020AP765-OA (Wis., May 13, 2020).
[18] Elkhorn Baptist Church v. Oregon, No. 20CV1 7482 (Ore., May 18, 2020).
[19] Laurie Sobel et al., “State Action to Limit Abortion Access during the COVID-19 Pandemic,” Kaiser Family Foundation (May 19, 2020), https://www.kff.org/coronavirus-covid-19/issue-brief/state-action-to-limit-abortion-access-during-the-covid-19-pandemic/
[20] South Wind Women’s Center v. Stitt, No. CIV20-277-G (W.D. Okla., April 20, 2020).
[21] Marysville Baptist Church v. Beshear, No. 20-5427 (6th Cir., May 2, 2020).
[22] Berean Baptist Church v. Cooper, No. 4:20-CV-81-D (E.D. N.C., May 16, 2020).
[23] Lori Riverstone-Newell, “The Rise of State Preemption Laws in Response to Local Policy Innovation,” Publius: The Journal of Federalism 47 (Summer 2017): 403-425. [24] Phil Willon et al., “‘Time to wake up,’ Newsom says, again urging Californians to stay home in coronavirus fight,” Los Angeles Times, March 21, 2020, https://www.latimes.com/california/story/2020-03-21/california-statewide-stay-at-home-coronavirus-rules-stricter-local-orders. [25] South Carolina Solicitor General Robert D. Cook Letter to the Honorable Jeff Bradley, March 29, 2020, http://2hsvz0l74ah31vgcm16peuy12tz.wpengine.netdna-cdn.com/wp-content/uploads/2020/03/COVID-opinion-on-extraordinary-powers-with-additional-citations-02245943xD2C78.pdf [26] Deputy Attorney General for Legal Counsel Ryan M. Vassar Letter to Judge Sarah Eckhart and Mayor Stephen Adler, May 12, 2020, https://www.texasattorneygeneral.gov/sites/default/files/images/admin/2020/Press/Travis%20County%20and%20the%20City%20of%20Austin%20Letter_05122020.pdf?utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term= [27] Consider Virginia, where the governor initially issued an executive order providing on a state-wide basis for the easing of certain restrictions on a certain date, but after several localities in Northern Virginia requested that the easing of restrictions be delayed for two more weeks in these localities, the governor had to issue a subsequent executive order allowing these localities to operate under a different time-table than the rest of the state. Virginia Governor Ralph S. Northam, “Governor Northam Delays Phase One for Northern Virginia Localities,” May 12, 2020, https://www.governor.virginia.gov/newsroom/all-releases/2020/may/headline-856741-en.html