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?
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 through shelter-in-place orders.
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 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.
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.
But right now we're wading into unchartered territory on just how far emergency powers can go. While many state and local governments have issued emergency orders in the past, those orders have been limited in duration and geographic scope. Now we're facing a public emergency that spans the entire nation and has already lasted for months.
Emergency powers have limits and can be challenged. In fact, we're seeing challenges to stay-at-home and related orders all over the country. But it will likely be some time before the lawsuits sort out the legal issues at play.
Constitutional challenges. One of the primary legal challenges to stay-at-home 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 keeping gun shops closed as a violation of the Second Amendment right to keep and bear arms. Other cases have challenged stay-at-home provisions—such as those keeping businesses closed or prohibiting travel—on due process grounds, arguing that the government cannot deprive citizens of their rights without having an opportunity to be heard.
Authority challenges. In other cases, lawsuits challenge the governor or public health agency's authority to issue stay-at-home 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."
What's next for challenges? As states try to ease restrictions and restart their economies, some are considering contract tracing, testing requirements, and checkpoints—all of which could raise Fourth Amendment issues regarding unlawful searches. Already, in Kansas, a lawsuit relating to contract tracing has been filed. It claims that the county health order, which requires businesses to maintain and turn over visitor logs to police, violates the Fourth Amendment as an illegal search.
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. Courts are already hearing cases challenging government action. But it could take some time to gain a clearer picture of just how far emergency powers can go. Contact a lawyer if you have questions or concerns about your rights during a state of emergency.
Updated: May 15, 2020.