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.
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?
The U.S. Supreme Court found that the “police power” of the States embraces “reasonable regulations …as will protect the public health and safety.” Jacobson v. Massachusetts, 197 U.S. 11 (1905).
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 emergency efforts. Depending on the jurisdiction, an emergency declaration might (for example) last 30 or 60 days and then require legislative approval for an extension. Once the emergency ends, the emergency orders also end.
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. 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. Mandatory quarantines and isolation orders are other measures a government might need to take to protect public health. States can also enact curfews to maintain public order.
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.
Balancing public health and safety with protections of civil liberties can be a daunting task. Many state legislatures and agencies have laws and regulations in place to help guide officials’ responses to emergencies. Depending on the type and extent of the emergency, the state or local government may place a certain agency or agencies in charge. In the case of the Coronavirus, many state health departments can take actions necessary to protect the public.
Most, if not all, states have public health emergency powers in statute. These laws generally outline which state or local agency has primary authority in the event of an emergency, types of orders the government can issue to protect public health, limitations on orders, and penalties for violations of government orders.
In California, for example, the Communicable Disease Prevention and Control Act authorizes that 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.
Other agencies might also be called into action during an emergency, such as emergency management agencies. When state and local resources become overwhelmed, the federal government can step in and assist states. The federal government has additional powers it can utilize under its Constitutional authority to regulate interstate and foreign commerce.
Emergency powers give states the authority to enforce restrictions and regulations to protect public health and safety, and that authority generally includes arrest, detention, and citations, or compelling compliance. The governing body must provide widespread notice of any orders it issues. In some cases, a court order could be issued.
State laws provide various methods of enforcement. For public health emergencies, state laws generally allow law enforcement and health officials to enforce official quarantine and isolation measures, and a person who violates the order may be detained or issued a citation. But governments would rather have public support and voluntary compliance to limit further reduction of scarce resources.
Many states also impose civil or criminal penalties for disobedience. Some states criminalize the act of knowingly or negligently causing the spread of a contagious disease. As an example, Arizona makes it a class 2 misdemeanor for a person to leave custody, isolation, quarantine, or detention imposed by a local health officer. (Ariz. Stat. § 36-737 (2019).)
Emergency powers apply during the state of emergency. While some civil liberties may be limited during a time of crisis, they are not gone. The law provides latitude for government efforts to preserve public health and avoid catastrophe—but checks and balances remain. Governments’ use of emergency powers is subject to not only judicial review but also public opinion.