Police states have curfews. Failed nations set travel limits and dictators tell their people not to go outside. “Stay home, stay safe” is a slogan borrowed literally from comic book supervillains.
Americans have reacted to the coronavirus with a sense of cognitive dissonance. An overwhelming majority of the public supports government restrictions on business, gatherings and even movement. (For a good survey of popular opinion on quarantine measures, see this roundup at the always-excellent XKCD.) At the same time, these rules have meant adjusting to restrictions that, culturally, simply don’t happen here. Officers telling citizens when they can leave their homes and under what conditions, this is a scene that authors use to set the stage for books like "The Hunger Games" and "It Can’t Happen Here."
That’s exactly how state and local governments have responded to the coronavirus. Most states have ordered non-essential businesses closed, while all but a handful have placed strict limits on public gatherings. In Michigan, the governor has ordered virtually all travel shut down except for specifically permitted purposes. Massachusetts now fines residents $300 for not wearing a mask outdoors “when social distancing is not possible.” Puerto Rico, at time of writing, allows no one outside their homes after 9 p.m.
How Much Power Do State and Federal Governments Have in a Crisis?
For many Americans, this has opened up the question of exactly how much power the government actually has at times like these. Most quarantine orders have come directly from a governor’s office or state health agency, with relatively few being directly passed by an act of state legislature. Their scope is sweeping, imposing a degree of government control on daily life that few (if any) Americans experience outside of the military.
And the truth is, when it comes to a time of crisis, there are relatively few limits on government power. During a public emergency such as invasion, natural disaster or pandemic, courts defer extensively to the actions an executive or legislature feels is necessary. If the question is, “what are the limits on government power during a crisis?” The answer is, relatively few.
If the question is, “what rights do I have during a crisis?” the answer is much the same.
“The powers of governors in public health emergencies are very broad and can extend to quarantines, curfews and restrictions on movement,” said Meryl Chertoff, the Executive Director of Georgetown Law’s Project on State and Local Government Policy and Law. “The default position is that the governors have very broad powers.”
This type of authority is what is known as “general police power.” It means the government’s power to set rules for the overall welfare of the population. Police power is a broad grant of authority, particularly during a time of crisis. In fact, the courts have held that governors can order measures far more sweeping than any yet have in response to a pandemic. Historically the courts have upheld orders to detain individuals, seize property and even require vaccination. Each of these measures steps on a right considered fundamental under U.S. law (the right to autonomy of movement, property and bodily integrity). Nevertheless a state can curtail them during an outbreak of disease.
Arguably the most famous case addressing government power during a pandemic comes from 1905, when the Supreme Court ruled on Jacobson vs. Massachusetts. The Court held that Massachusetts could require Reverend Henning Jacobson to receive the smallpox vaccine, and fine him for refusing to do so. In doing so the Court affirmed a governor’s power to demand that citizens receive an injection and change the chemistry of their bodies. In that context, requiring a mask outdoors is an almost trivial exercise of authority.
There are, however, limits.
Only the States Can Act on General Crisis Response, Not the Federal Government
“The most important thing to note,” Chertoff said, “is that under the Constitutional system, the police powers reside with the states and the federal government has limited powers. So that’s why in emergency response and natural disasters the governors step in first. The federal government only comes in after there’s been a natural disaster declaration, and has limited powers to play under the Stafford Act and the natural disasters act.”
The 10th Amendment to the Bill of Rights underlies much of the U.S. theory of governance. It says, in entirety, “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.” In layman’s terms, this means that the federal government only has the authority granted to it by the Constitution. Any laws it passes outside that scope of authority are unenforceable, because only the states can act on those matters.
This is what reserves police powers to the states themselves. The Constitution does not give the President or Congress the power to act on behalf of the general welfare.
This is not a coincidence of history. By design the United States reserves the most sweeping powers to the individual states while also preserving an individual’s right to travel among those several states. In essence, the citizens of America have the right to vote with their feet. If a state abuses its police powers, one thing it cannot do is force its residents to stay and put up with it.
That’s true even in a time of crisis.
States Must Show Extraordinary Need Before They Can Block Travel From Another State
During the coronavirus pandemic, many states have tried to impose a network of restrictions on interstate movement. New Jersey famously tried to turn back any residents of New York, fearing that fleeing Manhattanites would carry in the disease. They can exercise this power to a limited degree, but rarely. In almost all circumstance, a state that wants to limit travel has to impose those same restrictions on its own people.
“Under the federal constitution there’s a privileges and immunities clause,” said Chertoff. “Unless there is no less restrictive means to do this, the governor of one state cannot take any action which discriminates against out of state residents. Because we are all citizens of the United States as well as being citizens of one state.”
“For example, if I’m trying to go into Rhode Island from New York and there is a high rate of infection in New York. Then if Governor Raimondo wants to keep me out of Rhode Island, the only way to do that is to impose the same restrictions on me as she does on a citizen of Rhode Island.”
Citizens Always Have the Opportunity to Be Heard, Even if the Courts Will Tell Them That They’re Wrong
Finally, even during a crisis, citizens do not lose their rights to due process.
Governors may have expansive powers during a crisis, but only in response to the crisis at hand. A governor cannot buy herself a speedboat with state funds and justify by claiming “coronavirus,” nor could a governor assert emergency powers that outlast the pandemic itself.
In fact, lawyers have raised this as an area of concern regarding quarantine rules. Many states and cities have set restrictions with no defined end date, asserting that quarantine rules will last indefinitely or “until further notice.” The state of Michigan may be one of the most important testing grounds for this issue. On April 30, Governor Gretchen Whitmer issued an order renewing Michigan’s state of emergency, overruling the legislature which had refused to do so.
Lansing may prove a test case for the limits of crisis authority. While a governor’s power is expansive during a state of emergency, courts may have to decide whether a governor can adopt those powers by unilaterally declaring that emergency him- or herself.
Massachusetts, too, has created a potential test case but of a different variety. As referenced above, on May 6 state Governor Charlie Baker set a rule that citizens must wear masks outdoors whenever they are “unable to… maintain a distance of approximately six feet from every other person. The state will issue $300 fines to anyone who does not comply."
Almost certainly a valid general exercise of crisis authority, this order is also almost contradictory on its face. Specifically, while state and local governments have encouraged citizens to read this as a general requirement on masks while outdoors, someone who is outside will virtually always be able to maintain a distance of six feet. With the rule’s communicated intent at odds with its language, citizens have no clear guidance on what behavior will trigger a fine.
Citizens have the right to know what is expected of them. While a state government can demand extraordinary things to fight a pandemic, it cannot hold people to unreasonable, impracticable or unclear standards. Just like the police cannot set the speed limit at “too fast,” governors cannot set crisis response standards as “stay safe.”
And even during a crisis, citizens have the right to be heard on these issues.
From outside the legal profession, it often seems odd that lawyers insist that the courts always keep working. Even during the current pandemic, despite physical courthouses being closed, state and federal judges continue to hear cases. Every citizen has the right to challenge the law. This right ensures that the government continues to follow that law, ensures the governors respect the limits of their (admittedly broad) authority.
And while most of them will lose, this is still one of the most important safeguards citizens have against government overreach. Arguably the single most important right a citizen has during a crisis is the right to have a judge say “no.”