When the Covid-19 pandemic started hitting the cities in the U.S. Scientific experts recommended lockdowns for 15 days to slow down the spread of the virus and to allow hospitals to keep from being over whelmed. 10 months later and 340,000 deaths later and millions more infected and the lockdowns are still being used , with little or no scientific evidence that they are even effective. I have covered the cornavirus in several articles , including a very thorough study in “The Corona Virus Exposed,” links will be provide at the end of the article. What this article will endeavor to do is to do, is discover whether or not these prolonged lockdowns are legal or even constitutional. My premise is that they are not, any the governments are simply using fear tactics to coerce people into complying with these lockdowns.
COVID-19: Emergency Powers and Constitutional
Limits
March 23, 2020
Key Points
• Our country is in a national state of emergency over COVID-19. Almost every state
has declared its own state of emergency, and many states have started invoking
their emergency powers.
• An emergency does not allow either the federal government or state governments
to grant themselves any new powers. The federal government is still one of
enumerated powers, and states cannot act arbitrarily.
• For extreme government actions such as commandeering and confiscation,
American businesses may be able to invoke constitutional rights to protect their
property.
On March 13, 2020, President Trump declared a national state of emergency over the
coronavirus disease (COVID-19) outbreak. Almost every state has declared a state of
emergency as well (oftentimes with local governments following suit). Pursuant to such
declarations, states have invoked emergency powers: schools have been closed;
public gatherings of a certain size are banned; and many nonessential businesses
have been shut down. This alert addresses two main questions stemming from such
actions: (1) What authority do federal and state governments have in a national
emergency? (2) What limits does the U.S. Constitution place on their authority and,
relatedly, what federal constitutional rights could American businesses invoke to
protect their property? Because of the variety of state and federal laws involved, both
questions are addressed at a high level. Whether a specific governmental action is
constitutional will largely depend on particular circumstances.
Governmental Authority in a National Emergency
As the Supreme Court has said, “an emergency may not call into life a power which
has never lived,” but “emergency may afford a reason for the exertion of a living power
already enjoyed.” In other words, by declaring a national or state emergency, neither
the federal government nor state governments can grant themselves any new power.
Rather, the emergency declaration allows governments to unlock powers that normally
lie dormant.
Federal Government
The federal government is one of “enumerated powers.” As a result, its options in the
wake of COVID-19 are limited to what the Constitution authorizes and federal statutes
permit. Much of its power to respond to national emergencies is based on statutory
authority derived from the Commerce Clause, which gives Congress broad ability to
regulate foreign and interstate commerce. It can also tax and spend for “the common
Defense and general Welfare.” Thus, Congress can enact laws regulating persons
entering the country or traveling across states. And it can offer financial assistance to
both states and individuals.
Although these powers are granted to Congress—not the President—that does not
stop the President from responding to a national emergency via executive action. As
Justice Jackson explained in his famous concurrence in Youngstown Sheet & Tube
Co. v. Sawyer, the extent of the President’s authority in an emergency will depend on
whether he acts in accordance with congressional will. Accordingly, any presidential
(or other executive agency) action is subject to review and curtailment by the federal
courts if it is deemed at odds with Congress’s explicit or implicit directives, or
otherwise clearly exceeds recognized authority.
State Governments
State governments (absent federal preemption) maintain even broader powers than
the federal government. While the federal government is one of enumerated powers,
state governments can exercise what is known as their “police power.” This power is
inherent and limited only by the federal Constitution, along with a particular state’s own
constitution. Most importantly, states generally retain the power to make laws for the
purpose of protecting the health, safety and welfare of its people.
Constitutional Limits on Such Authority That Businesses Can Invoke
Even if either the federal or a state government is acting within its authority to respond
to COVID-19, a state of emergency does not give it free rein to violate constitutional
rights. That said, the existence of the emergency may justify limiting the scope of
certain rights, at least on a temporary basis. When considering current and potential
government action in the wake of COVID-19, two rights are top of mind for businesses
in particular: due process and just compensation. Below, we provide a brief overview
of the scope of those rights during the current national state of emergency.
Due Process Rights
The Fifth Amendment of the U.S. Constitution provides that no person may “be
deprived of life, liberty, or property, without due process of law.” Procedural due
process requires certain procedures before a law is applied, such as notice or the
opportunity to be heard. Substantive due process looks at the validity of the law being
applied.
The Supreme Court has viewed procedural due process as flexible, and courts will
consider a variety of factors when determining what protections are required. Courts
will consider the private interest affected but will consider the government’s interests
as well. Thus, the Supreme Court has found that there are emergency situations in
which postponing notice and hearing does not deny due process. Under present
circumstances, a court may find that compelling public interests triggered by COVID-19 justify summary action subject only to later judicial review. If temporarily excused, customary due process procedures—including notice and an opportunity to be
heard—will be required when the exigency subsides. Substantive due process is unlikely to offer any greater protections. Where the government action does not discriminate against minority groups or curtail fundamental rights, courts will employ what is known as “rational basis review.” To meet this level of scrutiny, the law in question need only be rationally related to a legitimate government interest. Even outside emergency situations, courts rarely strike down laws under this test. Given the current circumstances, a court will be even more
likely to defer to the government.
Takings Clause
Although the Due Process Clause does not afford businesses much protection, the
Takings Clause of the Fifth Amendment may offer more. Under the Takings Clause,
the government may not take private property for public use “without just
compensation.” But whether an action constitutes a “taking” often depends on the
nature of the government’s action. Below, we outline the different takings arguments in
three situations:
- Forced business closures
If the government forces a business to close indefinitely due to the pandemic, it could
be considered a “regulatory taking.” In Lucas v. South Carolina Coastal Council, the
Supreme Court stated that government action depriving owners of “all economically
beneficial or productive use of their land” is a taking requiring just compensation. But
if the closure is only temporary, then a court will be much less likely to deem it a
“taking”; the Supreme Court has said that property “cannot be rendered valueless by a
temporary prohibition on economic use, because the property will recover value as
soon as the prohibition is lifted.” Assuming that any closures are temporary, a takings
argument is unlikely to prove successful. But longer-term closures, or specialized
circumstances that are the equivalent of a permanent closure (such as a closure that
imposes an extreme or peculiar hardship on a business), may bolster a takings claim. - Commandeering of a business or factory
Whether the commandeering of private property constitutes a “taking” depends on the
degree and physical nature of the government’s involvement. Courts often compare
United States v. Pewee Coal Co. with United States v. Central Eureka Mining Co. In
Pewee Coal Co., the government took over the mine and ran it. Mine officials were
deemed agents of the U.S. government; the government required every mine to fly the
American flag and for the mines to post placards that read “United States Property!”;
and miners were told to dig coal as a “public duty.” That use was considered a taking.
By contrast, the Court found no taking in Central Eureka Mining Co., where the
government did not take physical possession of the mine or its equipment. Rather, the
government called for mining to stop to conserve the manpower and equipment for
“more essential” uses, and the halt in use was only temporary. Determining which
case is more like yours, and thus whether the government’s commandeering is a
taking that requires just compensation, would be a fact-intensive inquiry that would
depend on the nature of the government’s involvement and requirements. - Confiscation of a business’s private property
When the government expropriates private property (e.g., medical supplies), courts
regularly find a compensable taking. Courts will look to see whether the government
action was in response to imminent peril—such as a spreading fire or a hostile
confrontation—or if the property was taken similar to “a procurement of goods and
services under contract—in the absence of immediate danger, after deliberation, and
for a somewhat later and less temporary use.” Where the confiscation fits the latter
category, it is a taking requiring just compensation under the Fifth Amendment. As for
the former, some case law suggests that in times of imminent peril, the government
could exercise its police power “with impunity.” But, that notion has only been applied
in situations where the government destroyed the property to prevent an immediate
danger, as opposed to just confiscating it. Either way, where a given case falls, and
whether a business’s losses are compensable or non-compensable, depends on its
own unique facts.
The COVID-19 pandemic has led to extraordinary restraints on liberty, from international travel bans to state and local orders that businesses shut down, individuals avoid large assemblies and even stay home, and infected patients remain in quarantine. Depending on the epidemic’s progress, even more-draconian measures may be needed, such as restrictions on interstate and intrastate travel. It’s possible that “social distancing” will last for months rather than weeks.
All this goes against the grain in America, whose people treasure freedom and constitutional rights. But the government has ample constitutional and legal authority to impose such emergency steps.
Some state officials, such as New York Gov. Andrew Cuomo, have urged the White House to take charge. But this isn’t a task for Washington alone. While the federal government has limited and enumerated constitutional authority, states possess a plenary “police power” and have primary responsibility for protecting public health.
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States may also take more drastic measures, such as requiring citizens to be tested or vaccinated, even against their will. In Jacobson v. Massachusetts (1905), the Supreme Court considered a challenge to a state law requiring everyone to be vaccinated against smallpox. Henning Jacobson refused vaccination and was convicted. The court upheld the law and Jacobson’s conviction.
“The Constitution,” Justice John Marshall Harlan wrote for a 7-2 majority, “does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint.” Instead, “a community has the right to protect itself against an epidemic.” Its members “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.”
States also have the power, beyond criminal law enforcement, to make quarantine and isolation effective. If presented with widespread noncompliance, governors may call National Guard units to put their orders into force, to safeguard state property and infrastructure, and to maintain the peace. In some states, individuals who violate emergency orders can be detained without charge and held in isolation.
Federal leadership is crucial. Washington has wider access to data about the virus, its migration and trends. It is prudent for states to follow federal guidance on matters like quarantine and travel restrictions. But because Washington lacks states’ police power, compulsion is not always an option. The Constitution forbids federal officials from coercing the states or commandeering state resources or civilian personnel. While Washington may withhold some federal funds from states that refuse to follow federal law, it may do so only in ways that are tailored to advance the federal interests at stake and don’t amount to a “gun to the head,” as Chief Justice John Roberts put it in the 2012 ObamaCare case.
The federal government has the authority to order regional or nationwide containment and quarantine measures. The Public Health Service Act enables the surgeon general, with the approval of the secretary of health and human services, “to make and enforce such regulations as . . . are necessary to prevent the introduction, transmission, or spread of communicable diseases.” President Trump listed the Covid-19 virus for this purpose in January. The act authorizes the federal government to apprehend, detain and conditionally release individuals to prevent the spread of infection, and to detain anyone who enters from a foreign country or who would spread the disease across state borders.
The act can be read to allow for the general quarantine of all people from a particular state or states, including those who are asymptomatic or even have tested negative. But an attempt to do so would certainly result in litigation. Congress should promptly enact a statute that would affirm federal authority to impose a general quarantine if necessary.
To enforce such measures, the president can deploy civilian and military resources. He could federalize the National Guard over the governor’s objection. The Constitution allows Congress to authorize the use of the militia as well as regular armed forces for a variety of purposes, including suppression of insurrections, defense against invasions, and execution of laws.
Congress has placed significant constraints on the domestic use of the U.S. military. The Posse Comitatus Act of 1878 generally prohibits the use of U.S. armed forces for “performing domestic law enforcement activities” and features criminal penalties for noncompliance. But lawmakers have enacted important exceptions that allow the use, in certain specified circumstances, of the military to enforce federal laws. One is the Insurrection Act, originally dating to 1807, which allows the president to use the military when dealing with domestic rebellions. Widespread noncompliance with federal quarantines and travel bans promulgated under the Public Health Service Act may qualify as an insurrection.
Containing the Covid-19 epidemic will require citizens, states, private companies and the federal government to work together. One may hope the steps that have been taken so far will suffice. But emphasizing the sound constitutional and legal basis of these measures is important in reassuring the public that government can do what is necessary to secure the general welfare.
Even in a public health emergency, the constitution still matters.
That’s one lesson we can take from the restraining order issued by a California judge on June 12 halting one of Governor Gavin Newsom’s emergency orders. The ruling argued that Newsom’s order overstepped his office’s authority, infringing upon the legislature’s lawmaking powers.
The offending order, seeking to change a variety of state election laws, is one of many constitutionally suspect emergency orders the governor has issued in recent months in response to the COVID-19 pandemic. For example, Newsom also issued emergency orders to change workers compensation standards and impose supplemental paid sick leave obligations on certain employers.
Newsom’s aggressive use of emergency powers is alarming, because it increasingly looks like the governor is using the cover of the public health crisis to enact his preferred policies (many with little to nothing to do with public health) without having to go through the deliberative legislative process. In so doing, Newsom is undermining the separation of powers established in the state constitution.
In most states, emergency powers are conferred on the governor by statute. In some cases, the legislature constrains the governor by imposing clear time limits on emergency powers. Other states authorize the governor only to take certain enumerated actions. Thus, if the governor seeks to go beyond what has been expressly authorized, then there is a grave constitutional problem—a violation of the separation of powers. And we’re fighting to prove that point in our lawsuit challenging improper emergency orders in Ramirez v. Lamont.
As the U.S. Supreme Court recognized in Jacobson v. Massachusetts, states may enact statutes to prevent the spread of a contagious disease. So if a legislative body were issuing these regulatory restrictions, there would be little constitutional ground for objection, and unless the legislature has acted arbitrarily, its judgment as to how to address a serious public health threat will generally withstand judicial scrutiny. However, we are not dealing with draconian legislative impositions, but instead with increasingly controversial rules dictated unilaterally by the governor.
More generally, there is a constitutional problem whenever a governor asserts sweeping autocratic authority to make rules, as Newsom appears to be doing. Even if the governor believes he is acting in the public interest, it is still the legislature’s job to make law. “What the governor thinks is best” is not a reliable principle for accountability in governance.
And the longer Newsom and other governors continue to issue orders regulating our private affairs, the more it looks like autocratic rule. The whole point of conferring emergency powers is that we sometimes need swift executive action to respond to a time-sensitive emergency. But that justification diminishes as time passes, because there is greater time for the lawmaking branch of government to deliberate.
In any event, a governor can’t use a declaration of emergency to upend constitutional doctrine. Exploiting emergency powers to micro-manage the economy and our private lives is deeply troubling, because it amounts to an assertion of unchecked authority—i.e., a power to act outside the constraints of law. Even in the midst of a pandemic emergency, Newsom and other governors should respect the constitutional limits on their powers, and work with legislators to craft and enact laws that serve the people.
In a national panic, Americans permitted executives to take power—to declare states of emergency and to implement lockdowns—and now those executives won’t give that power back.
Supreme Court Justice Antonin Scalia often noted that the primary safeguard of our constitutional liberties is the structure of our government. Every banana republic has a bill of rights, he once said, but the strength of the American system is the separation of powers.
At the federal level, there are three separate, co-equal branches of government that must operate together for our representative republic to function properly, and this balance of power is mirrored at the state level. Unhappily, our system today is not functioning as designed.
Since March, the separation of powers has been off-kilter, shifted disproportionately to state executives, who are ruling outside the boundaries of their proper authority. In a moment of national panic, Americans permitted their state and local executives to take power—to declare states of emergency and to implement lockdowns—and now those executives won’t give that power back.
Legally, the executives are operating pursuant to their “emergency powers.” Executives are often authorized to declare a state of emergency, which activates emergency plans that the state and its localities have prepared, and transfers significant control to the governor. Although it varies by state, this authority is typically quite broad.
If you examine any of the lockdown or mandatory masking orders, you will largely see a relatively formulaic approach. First, the edict will recite the facts that support the claim there is an ongoing catastrophe, then it will list the legal authority, and finally the resulting mandates.
For example, in Virginia, when Gov. Ralph Northam issued his masking order, he called upon the powers vested in him by Article V of the Virginia Constitution, then pointed to § 44-146.17 of the Virginia Code. That’s the meat of the matter. That section of the code spells out the scope of the state executive’s authority during an emergency.
Every state legislature can define these powers differently and include specific limitations. In Virginia, the legislature inserted a provision that no emergency action by the governor could “limit or prohibit” the right to keep and bear arms.
That is why a gun range in Virginia was able to sue earlier this year and win an injunction that permitted it to reopen during the height of the lockdown. Although the judge said the injunction did not apply across the commonwealth, that discrete win signaled to Northam that he had gone too far, and he quickly issued a new order allowing all gun ranges to reopen.
Most state statutes automatically terminate emergency authority after a 30- or 60-day period, unless specifically extended by the governor. This highlights that emergencies are assumed to be of short duration. Our current quandary is that governors are using COVID as an excuse to extend their authority indefinitely.
If the governors are empowered to declare and continue a state of emergency, what is the remedy? The Founders believed the first and most powerful check on the executive would be the ballot box. In modern practice, one of the best checks on the individual policies an executive contemplates has been the resistance of the electorate in real-time. The coronavirus crisis has once again proved that state and local races matter deeply.
The judgment of the electorate, though, is usually most potent as a prophylactic or an immediate reprimand. Once the executive has taken the power and the people have acquiesced, it requires a much more forceful and unified resistance to roll back the overreach. Unfortunately, in our current crisis, the necessary momentum is just not there—or not yet sufficiently organized and vocal.
A structural check on the executive is the intervention of a coordinate branch of government—the balance of powers working as designed. Most state statutes provide for the termination of the emergency either by executive order or joint resolution of the legislature.
To declare emergencies, to close businesses and confine Americans to their homes, to mandate masks, to limit access to churches, to suspend your civil liberties, the governors point to power enumerated by statute—that is, defined by the legislature. Where the legislature defined the terms, it can redefine the terms. Where they are empowered to do so, state legislatures must begin to declare the emergency at an end, rebuke the governors’ power grabs, and recalibrate the allocation of power to its proper balance among the branches.
Unfortunately, rather than reclaiming authority from governors, many state legislatures right now are fighting over which branch gets to decide how to spend the federal dollars states are receiving in emergency aid. It is not clear that the balance of power will naturally revert to normal any time soon.
These states of emergency have provided vast, new power to individual governors and various political factions, and they will not give that power up easily or soon. It must be formally taken from them. If it is not, the executives will continue to chip away at our fundamental liberties, implement initiatives the electorate would not condone via their representatives, and generally undermine the spirit of independence and self-reliance that are hallmarks of American liberty.
An executive’s emergency authority is a good thing when properly exercised. An executive’s ability to move swiftly in a time of crisis is a strength of our system. The Founders robustly debated the extent and contours of executive powers.
The executive’s speed and dispatch are indispensable in the realm of war and national security, but these traits are also critical in time of national emergency. However, as the Framers knew and we’ve experienced, this type of centralized authority is also very dangerous when abused.
The American system of government is comprised of three branches of government that must operate together for our system to work. When exercised, the “emergency power” of the executive fundamentally changes the nature of our government by sweeping authority from the other branches and placing it in one.
The current widespread and indefinite “emergency rule” is doing violence to our system of self-government and to the separation of powers—which is the real defense that preserves our rights. It is high time to end the tyranny of the executives.
What do 9/11 and Hurricane Katrina have in common with the coronavirus (COVID-19)? All resulted in governments’ use of emergency or police powers. Police powers represent a state’s power to protect its citizens and promote public health, safety, and welfare. To this end, states can enact and enforce laws and regulations that apply in emergency situations, including riots, natural disasters, and infectious disease outbreaks.
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Local and state governments and the federal government have faced numerous emergency situations in recent years, from anthrax threats to the Boston Marathon bombing and destructive hurricanes to SARS—and now, the coronavirus. So, what emergency powers can states and local governments implement to protect the public?
What Are Emergency or Police Powers?
Emergency or police powers exist so state and local governments can act quickly to protect their citizens. Generally, a governing body will declare an emergency—whether it’s on the local or state level. The declaration of an emergency allows a governing body to issue orders to protect life and property and may allow suspension of certain laws or regulations that could hinder (prevent) emergency efforts.
Police Powers
In a 1905 decision, the U.S. Supreme Court held that the “police power” of the states allows “reasonable regulations … as will protect the public health and safety.” Jacobson v. Massachusetts, 197 U.S. 11. What does this mean? In a state of emergency, the government can restrain and regulate certain rights and liberties—such as the freedom to travel—for the greater good. But actions taken must be reasonable and use the least restrictive means (or methods). So, while generally, the government cannot restrict your movements, in the interest of health and safety, the government could temporarily limit or suspend your right to travel through shelter-in-place orders.
Public Health Emergency Powers
During a state of emergency, balancing public health and safety with the rights of citizens can be a daunting task. Many state legislatures and agencies have laws and regulations in place to help guide officials’ responses to emergencies. In public health emergencies, many state and local governments give health departments authority to take actions necessary to protect the public.
In California, for example, the Communicable Disease Prevention and Control Act authorizes the State Department of Health Services to adopt and enforce regulations requiring strict or modified isolation or quarantine, if deemed necessary for the protection of the public health. The law directs law enforcement and health officers to enforce orders issued by the department. Local health officers also have the power to take action necessary to control the spread of disease. Any person who knows of, and violates, an order is guilty of a misdemeanor. (Cal. Health & Safety Code §§ 120100-120305 (2019).) Other states have similar public health emergency regulations in law.
How Far Can the Government Go When Restricting Liberties?
Because the government must act quickly in an emergency, some leniency is given regarding the government’s actions during a time of crisis. Generally, though, restrictions on personal liberties must be reasonable and necessary and made in good faith for the preservation of public health, safety, or order. The government cannot arbitrarily restrict liberties that don’t have a legitimate purpose. For example, a city could not enact curfews that apply only in predominantly black neighborhoods.
But right now we’re wading into unchartered territory on just how far emergency powers can go. While many state and local governments have issued emergency orders in the past, those orders have been limited in duration and geographic scope. Now we’re facing a public emergency that spans the entire nation and has already lasted for months.
Can Emergency Orders Be Challenged?
Emergency powers have limits and can be challenged. In fact, we’re seeing challenges to stay-at-home and related orders all over the country. But it will likely be some time before the lawsuits sort out the legal issues at play.Featured Criminal Defense Law Firms in North Las Vegas, NV CHANGE LOCATION
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Constitutional challenges. One of the primary legal challenges to stay-at-home orders is whether they are constitutional. For instance, some lawsuits claim that orders prohibiting large gatherings violate First Amendment rights—freedom of speech, freedom to assemble, and freedom to petition (or protest) government actions. One case in Massachusetts challenged the governor’s order keeping gun shops closed as a violation of the Second Amendment right to keep and bear arms. Other cases have challenged stay-at-home provisions—such as those keeping businesses closed or prohibiting travel—on due process grounds, arguing that the government cannot deprive citizens of their rights without having an opportunity to be heard.
Authority challenges. In other cases, lawsuits challenge the governor or public health agency’s authority to issue stay-at-home orders and restrictions. One of the most significant orders came from the Wisconsin Supreme Court. By a 4 to 3 decision, the court struck down the entire statewide safer-at-home order. The court held that the governor’s administration (specifically the Department of Health Services) overstepped its authority in issuing the order—in both substance and procedure. In particular, the majority found that the department exceeded its statutory authority when forbidding travel and closing businesses and did not go through the proper channels (here the rulemaking process) needed to issue the order. The court declared the safer-at-home order “unlawful, invalid, and unenforceable.”
What’s next for challenges? As states try to ease restrictions and restart their economies, some are considering contract tracing, testing requirements, and checkpoints—all of which could raise Fourth Amendment issues regarding unlawful searches. Already, in Kansas, a lawsuit relating to contract tracing has been filed. It claims that the county health order, which requires businesses to maintain and turn over visitor logs to police, violates the Fourth Amendment as an illegal search.
Your Rights and Civil Liberties
While some civil liberties may be limited during a time of crisis, importantly, they are not gone. The law provides latitude for government efforts to preserve public health and avoid catastrophe—but checks and balances remain. Courts are already hearing cases challenging government action. But it could take some time to gain a clearer picture of just how far emergency powers can go. Contact a lawyer if you have questions or concerns about your rights during a state of emergency.
THE TURN OF the 21st century has brought a number of public health threats from emerging infectious diseases, such as SARS, MERS, Influenza H1N1, Ebola, and Zika. Each has presented unique and complex challenges for preparedness and response. Yet, federal and state public health agencies have managed to mitigate the spread and limit the mortality for each.
Covid-19 is proving to be a significantly greater menace. It is more infectious than seasonal influenza, can be transmitted by asymptotic people, spreads rapidly in congregate settings (e.g., cruise ships, nursing homes, hospitals, and prisons), and poses a high risk of hospitalization or death among vulnerable persons like individuals who are elderly, disabled, or have chronic conditions. There are not enough test kits, no rapid testing technology available yet, and no specific treatment. An effective vaccine won’t be available for up to 18 months.
Consequently, the federal governments, states, and cities across America have declared public health emergencies for Covid-19. These powers can trigger a surge in government power and resources, as well as streamline cumbersome legal rules that can impede a rapid response. Most importantly, emergency declarations expand the authority to implement crucial social distancing measures like school closures and public gatherings. But lockdowns and quarantines pose complications—declaration or not. To ensure the safety and protection of all Americans, they must be executed both legally and ethically.Emergency Public Health Powers
US public health and disaster management authorities have unleashed a bevy of emergency powers at unprecedented levels since the inception of domestic cases of Covid-19. On January 31, one day after the World Health Organization issued a public health emergency of international concern, Health and Human Services (HHS) secretary Alex Azar declared a national public health emergency (PHE). His timing was prescient.
Even as the State Department was repatriating US citizens trapped in Wuhan, China, initial cases of asymptomatic infection were circulating in specific hotspots (e.g., Seattle, San Francisco, Los Angeles, New York). HHS’ emergency heightened awareness and led multiple localities initially, and later states, to issue their own declarations at the earliest signs of infections. Some jurisdictions like Utah declared emergencies preemptively before any known infections arose.
According to the Network for Public Health Law as of today, 35 states have declared Covid-19 an emergency, disaster, or PHE, enveloping more than 248 million Americans. Dozens of localities and tribal authorities have similarly declared. President Trump is now expected to issue a national emergency under the federal Stafford Act or National Emergencies Act.
Emergency powers change the legal landscape and allow for coordinative efforts among public and private sectors. State governors can allocate resources, tap state funds, make emergency regulations, prohibit price-gouging, and waive or suspend laws impeding effective responses. Health care workers and other front-line responders receive special privileges and limited protections from liability as they implement crisis standards of care. Some states’ emergency declarations confer paid sick and safe time benefits to individuals adhering to public health measures or require insurers to cover costs of Covid-19 tests (as the CDC and Vice President Pence have proposed).
These and other relatively noncontroversial interventions extend for the duration of the declared emergencies, ranging from a few weeks to several months. Some emergency public health powers, however, raise Americans’ concerns, such as expeditious testing, screening, surveillance, and contact tracing efforts. Other powers to create social distance among individuals through separations, restrictions, closures, and curfews further heighten fears and require proper balancing of individual liberties and other rights.Social Distancing Powers
Frontline exercise of social distancing powers, especially among state or local governments, are essential to quell diseases like Covid-19 that spread widely within congregate settings (e.g., hospitals, nursing homes, prisons, churches, mass gatherings). Avoiding direct physical contact with others suspected or known to be infected makes intuitive sense, but enforcement is politically, ethically, and legally challenging.
Government efforts to isolate sick individuals or quarantine exposed individuals can impinge rights to travel and privacy, requiring an individualized risk assessment and due process of law. Federal quarantine and isolation powers are narrow and have been used sparingly over the last 50 years, largely to prevent infectious individuals from entering the US or travel from state to state.
Under new regulations adopted in 2017, however, the CDC’s widening use of these powers in response to Covid-19 includes evacuations of hundreds of Americans from Hubei, China, and the Grand Princess cruise ship. Still, primary social distancing powers reside in states and localities. Front-line public health officials may either recommend or order quarantines or self-isolation for hundreds of thousands more Americans in the coming weeks and months.
Isolation and quarantine carry heavy constitutional burdens. These orders are justified when based on individualized risk assessments and scientific validity, and they’re executed via procedural due process and through least restrictive means (e.g., home quarantines may be favored over mandatory separations). But, large-scale quarantines based on group determinations in emergencies can be overly broad. The US Supreme Court has required clear and convincing evidence for civil confinements of individuals in non-emergencies. Emergency declarations may skew the constitutional balance toward public health authority, but do not dispense altogether with long-standing recognized protections.
Other social distancing measures present even greater logistical challenges. In early March, New York governor Andrew Cuomo instituted a one-mile-radius containment area surrounding a synagogue in New Rochelle at the epicenter of a local outbreak. Some media equated Governor Cuomo’s maneuver to “lockdowns” seen in China or Italy, but that wasn’t quite accurate. The Governor’s calling in the National Guard was actually to provide care and support for people in New Rochelle. His order centers on closures and assembly limitations, classical social distancing measures.
While Dr. Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases, publicly stated that lockdowns are “possible”, they are highly unlikely. Actual lockdowns inhibiting personal rights to come and go are patently unconstitutional given significant infringements of rights for specious public health objectives. What about “virtual lockdowns” to limit the spread of Covid-19 in the US? The government does not have to actually order people to limit their movements to accomplish virtually the same result through closures, assembly limits, and permissible travel restrictions.
With their emergency powers, states like Maryland, Michigan, New Mexico, and Oregon are indeed doing just that by closing public and private schools. Hundreds of American universities are switching to remote learning methods. Businesses, transportation services (such as major airlines and Amtrak) are shutting down, and political rallies, concerts, and sporting events are postponed or canceled. Hundreds of thousands of Americans are opting to work off-site or quarantine at home. These lawful interventions and voluntary measures may produce the same results as forced lockdowns—namely, people are sheltering in place and avoiding unnecessary contact.
Even as communities in US hot zones employ protective measures, the needs of vulnerable populations (the elderly, physically- or mentally-disabled, or low-income) must be assured. Social distancing unaccompanied by access to key resources like testing, medical care, food, and hygiene is untenable. If individuals are asked to separate themselves from society for the common good, government has the reciprocal duty to ensure their essential needs are met. Effective interventions in response to Covid-19 require public and private sectors to act lawfully and ethically in support of all persons at risk to mitigate community harms and engender public trust.
GENEVA (16 March 2020) – UN human rights experts* today urged States to avoid overreach of security measures in their response to the coronavirus outbreak and reminded them that emergency powers should not be used to quash dissent.
“While we recognize the severity of the current health crisis and acknowledge that the use of emergency powers is allowed by international law in response to significant threats, we urgently remind States that any emergency responses to the coronavirus must be proportionate, necessary and non-discriminatory,” the experts said.
Declarations of states of emergency, whether for health or security reasons, have clear guidance from international law, the UN experts said. “The use of emergency powers must be publicly declared and should be notified to the relevant treaty bodies when fundamental rights including movement, family life and assembly are being significantly limited.”
“Moreover, emergency declarations based on the Covid-19 outbreak should not be used as a basis to target particular groups, minorities, or individuals. It should not function as a cover for repressive action under the guise of protecting health nor should it be used to silence the work of human rights defenders.
“Restrictions taken to respond to the virus must be motivated by legitimate public health goals and should not be used simply to quash dissent.”
Some States and security institutions may find the use of emergency powers attractive because it offers shortcuts, the experts said. “To prevent such excessive powers to become hardwired into legal and political systems, restrictions should be narrowly tailored and should be the least intrusive means to protect public health.”
Finally, in countries where the virus is waning, authorities must seek to return life to normal and must avoid excessive use of emergency powers to indefinitely regulate day-to-day life, they said.
“We encourage States to remain steadfast in maintaining a human rights-based approach to regulating this pandemic, in order to facilitate the emergence of healthy societies with rule of law and human rights protections,” the UN experts said.
The coronavirus outbreak has resulted in federal, state and local officials declaring a state of emergency, which allows them to wield additional powers in an effort to protect residents and curb the severity of the outbreak.
The result has been varying degrees of life-disrupting events such as quarantines, shuttered businesses and school closures — which raises a multitude of questions about what the government legally can and cannot do.
The federal government is relatively limited in what it can do to control people’s daily lives, as “police power” such as measures aimed at promoting public safety is generally reserved for the states. What Washington can do is impose certain travel restrictions and border protections and issue warnings to avoid travel to certain areas. The Secretary of Health and Human Services also has the ability to declare a Public Health Emergency, which Secretary Alex Azar has done.
In the case of a PHE, the government takes on powers related to “making grants; entering into contracts; and conducting and supporting investigations into the cause, treatment, or prevention of the disease or disorder,” according to an HHS website for Public Health Emergency. States of emergency last for the duration of the emergency or 90 days, and can be extended by the secretary. Congress needs to be notified within 48 hours of a declaration, and other agencies such as the Department of Homeland Security, Justice Department and the FBI have to be kept informed.
The Centers for Disease Control and Prevention (CDC) can also take certain steps under the Public Health Services Act. This includes imposing quarantines, like they did in the case of 200 people who were evacuated from Wuhan, China, and others who had been on cruise ships. The CDC can also isolate and examine individuals who they suspect or know to be infected.
As Arizona State University Law professor James G. Hodge, Jr., wrote for the Network for Public Health Law, while the federal government can quarantine individuals or groups suspected of being infected by coronavirus, they cannot enforce broad lockdowns of groups in “hot zones.” The government can make medical triage decisions based on scientific recommendations, but not based on factors such as race, religion, nationality, or ability to pay. Even individuals cannot be isolated without confirmation of infections. Individuals also have due process rights, meaning they cannot be subjected to forced treatment.
President Trump has also invoked two laws that enhance the federal government’s ability to respond to the crisis. The Stafford Act allows the Federal Emergency Management Agency (FEMA) to utilize government programs to provide assistance to local governments. The Defense Production Act, which Trump said he has invoked in case of “a worst case scenario,” requires companies to accept and prioritize contracts from the government and to prioritize “materials, services, and facilities to promote the national defense or to maximize domestic energy supplies.” While this provision has historically been used to ramp up military production, in the midst of the COVID19 pandemic the act will be used for medical supplies.
One thing that the president cannot do is delay November’s presidential election. While numerous states have laws allowing them to put off their own elections, and Congress reserves the power to change the time of a federal election, the executive branch has no say over these matters.
States and local actions
Going back to states’ police power, this is the basis for measures currently being taken in places like New York and California, where daily life has been dramatically altered. Governors can impose restrictions statewide, while mayors have the ability to put in place additional measures at the local level.
San Francisco, for example, has imposed a “shelter in place” lockdown, meaning people must remain at home except for tasks such as grocery shopping, getting medical treatment, caring for other people, and exercising. New York City Mayor Bill de Blasio has said he is considering imposing similar restrictions, although Gov. Andrew Cuomo stated Thursday that there is currently no plan for this to happen. He did, however, call for 75 percent of the “nonessential” workforce to work from home.
New York City has already seen the closures of establishments such as concert venues and bars that do not serve food, with restaurants restricted to takeout and delivery only — restrictions being imposed in jurisdictions across the country. This was followed by restrictions across the tri-state area of New York, New Jersey, and Connecticut, which include 8 p.m. curfews, and the closure of all schools, gyms, movie theaters, and casinos. This does not count those run by Native American tribes, although the Oneida Indian Nation stated they would be closing casinos.
Additional restrictions that New York law permits in a state of emergency include “the suspension or limitation of the sale, dispensing, use or transportation of alcoholic beverages, firearms, explosives, and flammable materials and liquids” and the establishment of emergency shelters and medical shelters.
California has also closed bars and nightclubs in the state. Like New York, the states of Massachusetts, Ohio and Illinois have limited bars and restaurants to takeout and delivery only. Massachusetts Gov. Charlie Baker has also restricted gatherings to only permit those of 25 people or less.
Chicago Mayor Lori Lightfoot ordered Thursday that all sick people remain home. Texas also declared a shutdown that will close bars, restaurants, gyms and schools from Friday until April 1.
Florida also saw a range of responses from state and local officials. Cocoa Beach Mayor Ben Malik announced that the city would be shutting down parking to dissuade people from going to the beach. On Thursday, Miami-Dade Mayor Carlos Gimenez announced that all parks and beaches in the county will be closed.
Since then, Gov. Ron DeSantis said on “Fox & Friends” that “the party’s over in Florida” for spring breakers who were still looking to party at the shore despite the outbreak, and beaches will either close or abide by federal guidelines limiting crowds.
Enforcement and limitations
Enforcement and penalties for violating restrictions can vary significantly from state to state. According to a survey by Law & Crime’s Aaron Keller and Elura Nanos, violations of quarantines in New Jersey and Montana can be punished by fines of between $10 and $100. In Mississippi, someone who “knowingly and willfully violates” a quarantine order can be fined up to $5,000 and be imprisoned for up to five years.
Despite their broad authorities, there are limitations on prohibitions states can put in place. In New York, a state of emergency only lasts for 30 days or until the proclamation is rescinded, whichever is sooner. A state of emergency can, however, be extended by additional 30-day periods.
In California, emergency regulations remain in effect for 180 days, unless the state’s Office of Administrative Law approves a re-adoption, which can only be done twice, and each re-adoption period is just 90 days.
Conclusion
The emergency powers acts of states and the federal government give the governments great powers. The typical time is 30 days, which can be extended by additional 30 day periods of time. They were never meant to run indefinitely. Many liberally run states are abusing the power given to them in these emergency mandates. There appears to be many gray areas in how they are applied by the states. It is my belief that when an extended closure results in a business owner losing his/her business, those individuals basically have had their possessions confiscated without due process of the law. The constitution is supposed to protect us from such losses of property. I don’t know why more people are not standing up for their rights. These governors and mayors are violating our constitutional rights. I have researched these emergency laws and their use is being abused. The rights of states and the power of the federal government can sometimes become confused. When the states violate their citizens rights the courts and the federal government needs to step in to correct the injustices being perpetrated. This is unfortunately not occurring. The only solution is for our citizens to stick together and fight these injustices.
Resources
http://www.akingump.com, “COVID-19: Emergency Powers and Constitutional Limits;” heritage.org, “A Constitutional Guide to Emergency Powers,” By Charles Stimson and David B. Rivkin Jr.; nga.org, “STATUS OF STATE COVID-19 EMERGENCY ORDERS;” astho.org, “EMERGENCY AUTHORITY AND IMMUNITY TOOLKIT;” pacificlegal.org, “The limits of a governor’s emergency powers,” By Luke Wake; thefederalist.com, “Governors Can’t Use Coronavirus To Indefinitely Declare A State Of Emergency,” By Molly McCann; aclu.org, “MODEL STATE EMERGENCY HEALTH POWERS ACT;” nolo.com, “Emergency Powers and Citizen Rights During the Coronavirus Public Health Crisis: What emergency powers do state and local governments have to prevent the spread of an infectious disease?” By Rebecca Pirius; wired.com, “What Emergency Declarations Can (and Can’t) Do in a Pandemic: Government emergency powers change the legal landscape and trigger a surge of resources, but they’re not without complications,” By James G. Hodge; ohchr.org, “COVID-19: States should not abuse emergency measures to suppress human rights – UN experts; foxnews.com, “Curfews, closures and more: What the government can and can’t do in a health emergency,” By Ronn Blitzer;
Addendum
PREAMBLE
In the wake of the tragic events of September 11, 2001, our nation realizes that the government’s foremost responsibility is to protect the health, safety, and well being of its citizens. New and emerging dangers—including emergent and resurgent infectious diseases and incidents of civilian mass casualties—pose serious and immediate threats to the population. A renewed focus on the prevention, detection, management, and containment of public health emergencies is thus called for. Emergency health threats, including those caused by bioterrorism and epidemics, require the exercise of essential government functions. Because each state is responsible for safeguarding the health, security, and well being of its people, state and local governments must be able to respond, rapidly and effectively, to public health emergencies. The Model State Emergency Health Powers Act(the “Act”) therefore grants specific emergency powers to state governors and public health authorities. The Act requires the development of a comprehensive plan to provide a coordinated, appropriate response in the event of a public health emergency. It facilitates the early detection of a health emergency by authorizing the reporting and collection of data and records, and allows for immediate investigation by granting access to individuals’ health information under specified circumstances. During a public health emergency, state and local officials are authorized to use and appropriate property as necessary for the care, treatment, and housing of patients, and to destroy contaminated facilities or materials. They are also empowered to provide care, testing and treatment, and vaccination to persons who are ill or who have been exposed to a contagious disease, and to separate affected individuals from the population at large to interrupt disease transmission. At the same time, the Act recognizes that a state’s ability to respond to a public health emergency must respect the dignity and rights of persons. The exercise of emergency health powers is designed to promote the common good. Emergency powers must be grounded in a thorough scientific understanding of public health threats and disease transmission. Guided by principles of justice, state and local governments have a duty to act with fairness and tolerance towards individuals and groups. The Act thus provides that, in the event of the exercise of emergency powers, the civil rights, liberties, and needs of infected or exposed persons will be protected to the fullest extent possible consistent with the primary goal of controlling serious health threats. Public health laws and our courts have traditionally balanced the common good with individual civil liberties. As Justice Harlan wrote in the seminal United States Supreme Court case of Jacobson v. Massachusetts, “the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the ‘common good.’” The Act strikes such a balance. It provides state and local officials with the ability to prevent, detect, manage, and contain emergency health threats without unduly interfering with civil rights and liberties. The Act seeks to ensures a strong, effective, and timely response to public health emergencies, while fostering respect for individuals from all groups and backgrounds. Although modernizing public health law is an important part of protecting the population during public health emergencies, the public health system itself needs improvement. Preparing for a public health emergency requires a well trained public health workforce, efficient data systems, and sufficient laboratory capacity.
