Jaime Brosnan, CLS ’21
Throughout the coronavirus pandemic, Americans have heard the President issue federal stay-at-home guidelines, including a nationwide lockdown until April 30th. Americans have also heard the President discuss potentially lessening those restrictions and reopening businesses after this date; however, it is not his call to make. [1] Although it may appear from the Coronavirus Task Force press conferences that the President ordered the current lockdowns, it is the state governments who possess the authority to impose these types of restrictions, although they often take their cues from the federal government. States have the police power to regulate almost everything in its state, including the ability to issue statewide lockdowns, force closures of institutions and businesses, limit public gatherings and prevent travel.[2] Protecting public health and safety is one of the states’ most compelling use of state power. [3] Under the Constitution, the federal government has a limited set of enumerated powers, leaving the state government with the primary authority to fight the pandemic.[4] States have many key advantages over the federal government in enacting these types of restrictions during an emergency, including more knowledge on its own resources and hazards, ability to shape policies on local issues and more flexibility to alter their emergency response plans.[5] That’s not to say the federal government does not possess any power during this crisis. The federal government has the power to provide medical supplies, transfer money to state governments, bar individuals with coronavirus from entering the United States, and fund research for a vaccine. It cannot, however, impose statewide quarantines.[6]
While some experts suggest a national lockdown would dramatically help slow the spread of the coronavirus[7], the United States federalism system likely prevents the federal government from officially enacting one and, instead, leaves that power in the hands of the individual states.[8] Although national emergencies, especially wartime, usually give rise to broader presidential power, a national shelter-in-place order is unprecedented and could likely be challenged in court.[9] While the President’s constitutional authority during emergency crises is not entirely defined[10], without an executive order to the contrary, the states have the lockdown power in their hands. A successful nationwide lockdown would require joint cooperation from all states, but states have each enacted varying levels of restrictive measures. Thirteen states, including New York and California, enacted the most restrictive measures in closing all nonessential businesses and prohibiting all gatherings. [11] Meanwhile, twelve states have yet to issue official statewide stay-at-home orders, including Alabama, Arkansas, Iowa, Missouri and North Dakota.[12] All states have issued some form of restriction, but their degree of prohibitions and exemptions vary. Dr. Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases and a key leader in the administration’s coronavirus response, does not believe a nationwide shutdown is necessary because of the variation in infection rates across the states. [13] Nonetheless, responsibility for making decisions about the pandemic rests with the states, not the federal government, so look to your state governor for an update on your state’s individual restrictive stay-at-home measures during this pandemic.
[1] Walter Olson, Federalism and the Coronavirus, The Wall Street Journal https://www.wsj.com/articles/federalism-and-the-coronavirus-lockdown-11585609012
(Mar. 30, 2020).
[2] John Yoo, Pandemic Federalism, National Review, https://www.nationalreview.com/2020/03/pandemic-federalism/ (Mar. 20, 2020).
[3] Id.
[4] Id.
[5] See Olson, supra note 1.
[6] See Yoo, supra note 2.
[7] Nurith Aizenmen, Experts Say the U.S. Needs a National Shutdown ASAP—But Differ on What Comes Next, National Public Radio https://www.npr.org/sections/health-shots/2020/03/27/822146372/experts-say-the-u-s-needs-a-national-shutdown-asap-but-differ-on-what-comes-next (Mar. 27, 2020).
[8] See Yoo, supra note 2.
[9] Reid Wilson, Could Trump Declare a National Coronavirus Shutdown? Momentum is Rising, The Hill https://thehill.com/homenews/state-watch/488735-could-trump-declare-national-coronavirus-shutdown-momentum-is-rising (Mar. 20, 2020).
[10] Id.
[11] Id.
[12] Cristina Marcos, Several States Have Yet to Issue Stay-at Home Orders, The Hill https://thehill.com/homenews/state-watch/490695-several-states-have-yet-to-issue-stay-at-home-orders (Apr. 1, 2020).
[13] See Aizenman, supra note 6.