What do 9/11 and Hurricane Katrina have in common with 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 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 SARS—and now, COVID-19. So, what emergency powers can states and local governments implement to protect the public? And just how far can they go?
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.
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.
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 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 actions 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.
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. 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).)
Emergency powers have limits and can and have been challenged.
One of the primary legal challenges to emergency 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 that kept gun shops closed as a violation of the Second Amendment right to keep and bear arms.
In other cases, lawsuits have challenged the governor or public health agency's authority to issue emergency 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."
Outside the courtroom, legislators have used their authority to curtail emergency powers by changing state law. Some adopted laws allowing the state legislature to override a governor's emergency orders. Others limited the use of executive emergency powers to specific issues or time frames. In the past, a governor might use their emergency powers for a few weeks or months. The sheer length and expansive impact of COVID-19 left legislators 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.
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. Contact a lawyer if you have questions or concerns about your civil rights.