We are living in unprecedented times. Restricted to our homes except for necessary trips and banned from gathering with others not already living with us, we’ve never had our movement curtailed by the government on such a comprehensive level, at least in my lifetime.
Recently, I received an email from a colleague who wanted to know why the President didn’t just issue a nationwide stay home order. And that email got me thinking about the powers of the various levels of the federal, state, and local governments. How can Governor Inslee have the power to make such a sweeping order and does President Trump have similar authority?
This is a complex and rich area for study and scholarship, and I won’t be able to do it justice in this post. But in brief, under our system of government, the federal powers are supreme, but limited by the Constitution. And each state is an independent entity with its own independent powers. Both the Ninth and Tenth Amendments to the US Constitution specifically reserve rights and powers not enumerated in the US Constitution to the people and the states.
What that means is that the federal government can regulate only those areas the Constitution has specifically said it has the power to regulate. And each branch of government—legislative, judicial, and executive has its own enumerated powers. One of Congress’ most potent powers is the ability to regulate commerce (including the movement of people) among the states, including to prevent the spread of disease from a foreign country or across state lines. That same power does not extend to the president, however, unless expressly delegated to him by Congress.
The US Supreme Court has long recognized that the police power, or the power to provide for the health, safety, and security of the citizens of each state, belongs to the states. And part of that power “beyond question” includes the power to enact and enforce quarantine laws “for the safety and the protection of the health of their inhabitants.” Compagnie Francaise de Navigation a Vapeur v. Bd. of Health of State of Louisiana, 186 U.S. 380, 387, 22 S. Ct. 811, 814, 46 L. Ed. 1209 (1902). Those laws, however, must be reasonably related to the goal of protecting the public health and cannot be overly broad. See Jew Ho v. Williamson, 103 F. 10, 26 (C.C.N.D. Cal. 1900); In re Smith, 146 N.Y. 68, 75-76, 40 N.E. 497 (1895).
Others have examined the power of President and concluded he does not have the legal authority to order governors to end their stay at home orders, though the President does have the power of the bully pulpit.
Given the police powers of the states, the states largely lead the way in public health emergencies, as they are with the response to COVID-19. In Washington, the state Legislature has delegated significant powers to the Governor in times of emergencies. The governor is given the power to declare a state of emergency and to declare the emergency over once order has been restored to the affected area. RCW 43.06.210.
Once a state of emergency has been declared, the governor may prohibit (among other things):
Assembling or gathering of people in public or private spaces. RCW 43.06.220(1)(b).
The sale, purchase, or dispensing of alcohol. RCW 43.06.220(1)(e)
The sale, purchase, or dispensing of any other commodities or goods if the governor reasonably believes doing so will help preserve and maintain life, healthy, property, or the public peace. RCW 43.06.220(1)(f).
And, finally the catchall, the governor may prohibit “such other activities as he or she reasonably believes should be prohibited to help preserve and maintain life, healthy, property, or the public peace.” RCW 43.06.220(1)(h).
That is very broad authority indeed.
The governor may also order the suspension or waiver of certain statutory obligations, such as inspection fees, permits for the use of alcohol, regulations, tariffs and notice requirements of the utilities and transportation commission, and any other statutory or regulatory obligations or limitations that hinder or delay the response to dealing with the emergency. RCW 43.06.220(2).
The Legislature has also authorized the governor to be the head of the state’s national guard, RCW 38.08.020, and to order the state militia or state patrol to assist local officials to restore order. RCW 43.06.270. The governor has also been put in charge of the emergency management program administered by the state military. RCW 38.52.005.
The restrictions imposed by the governor to combat COVID-19 seem to be well within the confines of the authority given to him by the state Legislature. They are also an important lesson in constitutional law that often gets overlooked: none of the rights guaranteed to us in the US or state constitutions are absolute rights. That being said, the state may not selectively burden some activities and not others. As long as the restrictions apply equally to everyone, including secular and religious gatherings, they will likely not run afoul of the First Amendment.