What do 9/11, Hurricane Katrina, and COVID-19 have in common? All resulted in governments' use of emergency powers and police powers. Police powers represent a state's authority 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 such as riots, natural disasters, and infectious disease outbreaks.
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 COVID-19. So, what emergency powers can states and local governments implement to protect the public? And just how far can they go?
Emergency powers exist so state and local governments can act quickly to protect their citizens. These emergency powers are meant to bypass the usual (and often, slow) legislative process so that action can be taken quickly during a crisis. Usually, such action is taken by a state governor, city mayor, or other executive body.
Upon or in anticipation of a natural or man-made disaster or public crisis, a governing body will declare a state of emergency. The declaration of an emergency allows a governing body to issue orders (quickly) to protect life and property and may allow suspension of certain laws or regulations that could hinder (prevent) emergency efforts.
For example, a governor may declare a state of emergency in response to a natural disaster (hurricanes, tornados), major disasters (such as the I-35 bridge collapse), or a public health emergency (COVID, H1N1). The declaration may permit immediate orders, such as evacuation, curfews, or quarantines.
While we mostly hear about local and state disasters, emergencies can be declared at the national level. Examples of declared national emergencies include the 9/11 terrorist attacks, Hurricane Katrina, the H1N1 influenza pandemic, the COVID pandemic, and the Southern Border security crisis. It's also possible that both the state and federal governments declare emergencies amid the same crisis—Hurricane Katrina and COVID being examples.
States have the primary responsibility to protect their citizens and generally are in a better position to do so than the federal government. Most often, the impact is felt locally. And states can rely on their broad police powers (which the federal government doesn't have) to protect their citizens, as well as leverage regional support and federal assistance. This isn't to say the federal government doesn't have a role, but it's generally focused more on financial, expert, or military assistance.
State and federal laws generally authorize and constrain the use of emergency powers. Typically, the emergency must be of a limited nature, the emergency order lasts only as long as the emergency, and the legislative body generally has some authority to override executive actions. Governors or other executive agencies must act within the laws' parameters.
Police powers are the overarching and broad authority given to states through the U.S. Constitution to protect public health, safety, morals, and general welfare. Through this authority, states can enact and enforce laws that protect life and property during an emergency, as well as maintain and uphold law and order in everyday life. A state's police powers aren't limited to public safety. They also allow governments to enact laws aimed at protecting public health and general welfare. For example, states can enact laws aimed at preventing discrimination in employment, addressing economic needs, and requiring immunizations for school attendance.
In a time of emergency, state law may provide temporary emergency police powers that would not normally be permitted outside a crisis. For instance, during COVID, we saw governors use their police powers to close nonessential businesses, shut down schools, and restrict travel—actions that would not generally be permitted during non-emergency times.
While broad, police powers are not without limits. 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—even constitutional rights—for the greater good. But actions taken must be reasonable and use the least restrictive means (or methods).
If the use of police powers clashes with constitutional rights, a judge will be the decisionmaker of which will prevail. The court must balance the interests involved: the threat to public health and safety and the constitutional rights infringed upon.
Restrictions on personal liberties must be reasonable and necessary and made in good faith for the preservation of public health, safety, or order. While government officials are given more leniency during emergencies, they can't do anything they want. 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. Or a state can't restrict large worship gatherings but allow similar activities and large gatherings in other industries. (South Bay Pentecostal United Church v. Newsom, 592 U.S. ___ (2021).)
Yes. Emergency powers often face challenges because they tend to conflict with Americans' general understanding of freedom.
Emergency orders often bump up against citizen rights and, thus, end up being the subject of legal challenges. Say a mayor imposes a strict curfew after protests turn into riots. While protecting public safety and property may be core concerns, the curfew also conflicts with freedom of speech, freedom to assemble, and freedom to travel. Under curfew orders, protestors must go home, workers can't get to their overnight shifts, and shops lose business. A court might decide a one-night curfew is reasonable given the circumstances, but a mayor's decision to squelch protests by imposing the curfew for a week would likely be found unconstitutional.
In other cases, lawsuits have challenged a governor's, mayor's, or agency's authority to issue emergency orders and restrictions. For instance, numerous governors' executive orders were challenged during COVID based on the legal argument that the governor or another executive agency (like the Department of Health) overstepped its statutory authority in issuing safe-at-home orders, closing businesses, and reauthorizing emergency orders over months (rather than the typical days or weeks).
Outside the courtroom, legislators have used their authority to curtail emergency powers by changing state law. While typically emergency powers don't draw much attention, the sheer length and expansive impact of COVID put such powers in the spotlight. In the wake of thousands of emergency orders, legislators were left grappling with how much, and for how long, governors should be able to issue orders solo—without going through the legislative vetting process involving citizen representation. Examples of new laws include allowing the state legislature to override a governor's emergency orders and limiting the use of executive emergency powers to specific issues or time frames.
During a crisis, civil liberties sometimes take a backseat to public health and safety. But, importantly, they are not gone. The law provides latitude for government efforts to preserve public health and safety and avoid catastrophe—but checks and balances remain. Contact a lawyer if you have questions or concerns about your civil rights.