State and local governments should
stay within their constitutional limits, respect the separation of powers, and return to regular governance (not rule by executive decree) as soon as practicable;
tailor orders to public health needs, avoiding heavy‐handed or arbitrary rules; and
recognize the importance of sustaining people’s abilities to live their lives, attending to economic, spiritual, and recreational concerns.
State and local officials have broad power to govern for public health and safety, but there are limits—for example, on the powers themselves and who exercises them. State law typically spells out what can be done, which part of the executive branch can do it, when the legislature needs to be involved, and how long any orders can last. Another limit is the government’s need to justify any restriction on basic liberties, whether to travel, to practice religion, to earn a living, or the myriad other ways people pursue their vision of the good life. Regulations must fit the problem: evacuating the coast makes sense ahead of a hurricane but is neither here nor there for a pandemic. A focus on the “essentiality” of businesses, workers, or consumer products can quickly make for arbitrary line‐drawing, so the key criterion must be safety. Gardeners may not be as “essential” as grocers, but isolated outdoor work presents little risk of contagion. Similarly, outdoor recreation promotes public health, both physical and mental, so instead of closing parks entirely, policymakers would be better off limiting the number of entrants to ensure social distancing. And of course, regulations need to be constantly reevaluated as we learn more about disease pathology and the capacity of our medical system.
State police powers have long been recognized to include the authority to make laws for public health and safety. Most lawmaking in the United States is done at the state level and relies on that kind of authority. Indeed, this is a kind of power that the federal government simply doesn’t possess because our constitutional structure grants it only certain enumerated powers. The Tenth Amendment restates that arrangement: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the People.” State constitutions, meanwhile, can be considered “documents of limitation rather than documents granting power.” In other words, while the U.S. Constitution lists the things the federal government may do, states have a general power to govern, with certain limits. The COVID-19 pandemic is testing those limits, but states can still respond effectively and responsibly.
Federal Constitutional Limits on the State Police Power
Exercises of the state police power must respect the individual rights guaranteed in the Constitution while also not intruding on regulatory areas where federal law is supreme. For example, a state cannot do away with search warrants or regulate interstate commerce in the name of health and safety. During the first month of the pandemic, shutdown orders and other broad restrictions had a wide berth, constitutionally speaking. And this shouldn’t be a surprise; courts will rarely find that state public health officials have overstepped their bounds. Of course, measures that are reasonable in the rapid response to the start of an emergent health crisis with a lack of epidemiological data will often prove unreasonable once we have a better understanding of the challenges. Outside hotspots, blunderbuss shutdown orders have overstayed their constitutional welcome.
Even pandemic‐related regulations that are generally constitutional can tread on individual rights. The Supreme Court chose not to block California’s order that churches may not hold services with more than 100 people but didn’t decide the merits of the case. Per Employment Division v. Smith (1990), those merits turn on whether the shutdown orders are neutral and treat churches like any other entity. Once New York began allowing large‐scale protests, for example, its restrictions of outdoor funerals likely became untenable on equal protection grounds. Then again, neither did the Court block—again without deciding the merits—a Nevada reopening order that limited houses of worship, regardless of size, to 50 congregants while allowing casinos to operate at 50 percent capacity (meaning potentially thousands of patrons).
Freedom of speech has also been front and center in the discussion over lockdowns. An April anti‐lockdown protest in Raleigh, North Carolina, resulted in an arrest for violating the state’s stay‐at‐home order—with the police remarking: “Protesting is a nonessential activity.” That sentiment was revised nationwide in June.
Indeed, rash decisions over which workers and businesses are or are not “essential” have made it difficult to protect other Bill of Rights guarantees. The Second Amendment has faced broad restrictions: several states classified gun stores as nonessential and required them to shut down. Many states failed to classify defense attorneys as essential workers, raising Sixth Amendment right‐to‐counsel and other constitutional concerns as prisons became hotbeds for the virus.
But as the radical uncertainty that prevailed in the early months of the outbreak has given way to better information, sober reflection and revision is necessary to ensure that constitutional guarantees are not sacrificed in the fight against COVID-19. If grocery stores can be made safe with markings on the floor, capacity limits, and mask requirements, so can gun stores—or stores selling gardening tools for that matter. But there still may be justifications to restrict other gathering places, such as movie theaters and stadiums.
All emergency police power regulations need constant updating to protect people’s rights. We now know that if people maintain safe practices, including social distancing—which really ought to be called “physical distancing”—they can in fact go outside at minimal risk of infection, whether to protest or to enjoy recreational areas. Revisions in lockdown orders have begun allowing drive‐up churches as well. It is states that must make these decisions, however, because in most instances the final authority rests with them.
In some areas of law, federalism limits states’ ability to regulate within the federal government’s long shadow. But epidemic response has traditionally been left to the states’ discretion. That’s ultimately a good thing. States have a greater knowledge of local resources, mitigating and exacerbating factors, and priorities. More importantly, state and municipal governments—close to the ground and to their constituents—have greater leeway correcting course on a bad or harmful policy. Some states changed their tunes on gun‐store restrictions after public outcry and reevaluated protest restrictions as new information came out. This greater knowledge and responsiveness should lead to better thought out and more narrowly tailored reopening orders. But states have their own limitations on the police power, which the pandemic is also testing.
State Limits on the State Police Power
Just because a state action doesn’t interfere with a constitutional right or step on the federal government’s toes doesn’t mean it’s necessarily a valid exercise of the police power. States are also limited by their own constitutional structures, the unenumerated rights of the people, and the quasi‐federalism borne from delegating state power to cities and towns. In other words, there are limits to how a state may act, how and what a state may regulate, and who or what entity exercises the relevant authority. Each limit has its own impact on the actions that states have already taken during the COVID-19 pandemic and how they should move forward.
Like the federal government, state governments have three branches: legislative, executive, and judicial. Because legislatures are slow to act—legislators are dispersed if they’re not in session—and judiciaries are reactive institutions, quick responses to any crisis fall to the executive branches, notably governors. But different states empower their governors in different ways. California, for instance, allows its governor to declare a “state of emergency” in case of an “epidemic”; such a declaration grants the governor “complete authority over all agencies of the state government and the right to exercise within the area designated all police power vested in the state” and the ability to issue rules by executive order. Crucially, the emergency declaration must be ended “at the earliest possible date that conditions warrant” and may be rescinded by the legislature. But there is no hard time limit. Moving forward, if there is not already a time limit on executive emergency powers or a mechanism to override the governor’s determination of a state of emergency, legislatures’ top priority should be reestablishing their role in recovering from this emergency.
Open‐ended powers are not best practices. Governors need some affirmative participation from legislatures to ensure that their actions are both responsive to the needs of citizens and founded in law. Fortunately, some state judiciaries are reining in their respective executive branches. In Wisconsin, the state supreme court invalidated a lockdown order for failing to follow state administrative procedures. Similar challenges in Oregon and Ohio have also met with some success. There are, of course, some practical reasons for limited legislative involvement in an emergency. A lawsuit in Maryland failed in part because the part‐time legislature generally vests a lot of discretion in the governor.
State legislatures can’t predict every conceivable emergency measure that will be necessary in a pandemic, so it’s sensible to vest the initial reaction in the executive branch. But they can set in place procedures to ensure that as disruptive circumstances become “the new normal,” the old normal of legislatures doing the lawmaking can reassert itself.
Structural cooperation is the beginning, not the end, of concerns that must be addressed when exercising the police power in a pandemic. New York’s legislature actually amended that state’s emergency powers law on March 3, 2020, to give the governor more flexibility. Yet New York’s pandemic response is hardly the best example of an effective state response that respects the rights of its citizens—particularly with respect to nursing homes.
State Protection of Individual Rights
State law is generally more expansive regarding rights than federal law. First, while many rights explicitly guaranteed in state constitutions mirror their federal counterparts, state courts sometimes read similar language more expansively—treating the federal constitutional right as a floor not a ceiling. Second, while often a dead letter on the federal level, the economic liberty to earn a living and otherwise pursue one’s own vision of flourishing is more robust in many states. Third, state constitutions often include rights in the form of affirmative state responsibilities to their citizens that specify how and where the states should direct their police power.
In a pandemic that takes lives while lockdowns take livelihoods, responses must respect the economic freedoms of all Americans. Before we knew how the disease spread, states across the nation shuttered businesses. That was sensible in March and reasonable in April, but since those early weeks, states have needed to rethink their actions. As we’ve learned about which activities and environments create an increased risk of contracting the virus, continued and future shutdowns should be narrowly tailored to affect only particularly risky endeavors. In the early days, for example, Michigan banned the sale of certain consumer items—typically relating to recreational activities but also taken to mean such things as child car seats—while allowing the sale of others. This seemingly arbitrary regulation hurt retail stores, which we now know can remain open safely with distancing protocols, and closed off many fun and fulfilling hobbies that millions of people trapped in their homes could have enjoyed.
States should follow Texas’s example here. In late June, when Texas began experiencing a renewed uptick in COVID-19 cases, Governor Greg Abbott didn’t simply shut down the state. Instead he ordered bars closed again and limited restaurant services. While the order could be more narrowly tailored—limited to restrictions on indoor service, for example—bars are uniquely dangerous in a way that gardening is not. Close quarters, indoor crowds, and intoxicants that may cause people to throw caution to the wind could all contribute to viral spread. States should thus limit shutdown orders to where they are most effective and not issue one‐size‐fits‐all restrictions. This goes for noneconomic activities too. Emerging evidence suggests that for most outdoor and some indoor activity, reduced capacity and distancing work just as well as shutdowns, whether these are gyms, parks, or pools. If so, then states are not justified in sacrificing the physical and mental health of the populace in the name of dubious disease prevention.
The same principle applies to the nonsensical determinations over who is or is not “essential.” This distinction has merit when a job is dangerous. Hospitals, for instance, involve close‐quarters contact with potentially infected people but are certainly essential. But for most American workers, the distinction should be “safe” or “not safe.” For example, bartenders and waiters are arguably no more or less “essential” than landscapers and car salesmen, but the risk of exposure in crowded bars or restaurants is much greater than in someone’s lawn or garden or at a used car lot.
Not all state responses have been impositions on economic liberty. In order to respond to the crisis quickly, many states have done away with unnecessary regulations that only serve as barriers to entry for health professionals and other “essential workers.” Although it’s true that best practices during an emergency are often bad practices in normal time, states should take a serious look at why some regulations were deemed necessary in the first place. They will find that many regulations are for special interests and industry protectionism, lacking any foundation either in or out of a pandemic. States should use this opportunity to revise regulations that weren’t properly justified under the police power to begin with.
Local Police Powers
Finally, states have delegated some of their police power to local municipalities. This decentralized approach allows an even more tailored response to a crisis than states can manage. It also creates little autonomous regions that can step back from statewide strategies that do not work locally, particularly in larger states.
During a pandemic that affects different populations differently, it is essential that localities have flexibility to respond to the needs of their communities. Many states have begun reopening statewide but leaving local decisions to their municipal counterparts—or, as in Virginia, applying different rules to different regions, depending on how dense the population is or how many COVID-19 cases have been found. It would be bad policy for states to force localities to reopen before their citizenry feels ready, but it would also be bad policy to force whole states to close to address a problem in one major city.
In the early days of the COVID-19 pandemic, governors rushed to issue executive orders, mandating shutdowns and sorting people’s livelihoods into “essential” or “nonessential.” They issued these responses in understandable haste; governors reasonably prefer looking back and saying “we overreacted” over the alternative. Now that we are looking back, however, we see that many governors did indeed overreact—or simply pursued wrong strategies—even if their actions could be justified by the limited information available at the time. As our gaze turns forward, state policymakers must remember that while they have broad police powers to respond to emergencies that threaten public health and safety, they are still limited by the U.S. Constitution and their states’ constitutions and laws. They must also do their utmost to avoid abridging their citizens’ rights—including economic liberties. The pandemic is a national problem, but its impact varies by region, state, and even locality and so requires tailored solutions—ones that conform with our nation’s commitment to individual rights and the rule of law.
Thanks to Cato legal associate Michael T. Collins for his research assistance.