Coronavirus and the Constitution: What powers do federal and state authorities have to fight a pandemic?

Quarantines, business shutdown orders, and stay-at-home orders may be effective weapons in the global fight against COVID-19, but such policies require immense government power and perhaps equally severe restrictions on freedoms we normally take for granted. With unprecedented measures being rolled out all over the country seemingly by the day, one might ask: What does the Constitution have to say about the coronavirus?

Here, we examine that question from three angles. We first survey the powers — and limits — of federal, state and local governments to take measures to fight the spread of COVID-19. We then explain what happens when federal and state measures in that regard come into conflict. Finally, we discuss how far these measures can go to restrict individual rights.

Where does the government get its power to fight a pandemic?

When it comes to health and safety laws, the Constitution casts state and local governments in the leading role. Any power not expressly granted to the federal government is, under the 10th amendment, retained by the states. Chief among those retained powers is the “police power,” which enables states (and local governments, by extension) to pass regulations that “protect the health, morals, and safety of their people.” See Tenn. Wine & Spirits Retailers Ass’n v. Thomas, 139 S. Ct. 2449 , 2463-64 (2019).

That police power almost certainly authorizes states and localities to pass many of the health measures now being used to fight COVID-19. Almost 200 years ago, Chief Justice John Marshall recognized that “quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a State” are valid exercises of a state’s inherent authority. Gibbons v. Ogden, 6 L.Ed. 23, 78 (1824). Since then, courts have repeatedly upheld state and local laws — even strict and severe ones — if they are “reasonable regulations” meant to “protect the public health and public safety.” See, e.g., Jacobson v. Massachusetts, 197 U.S. 11, 25 (1905).

The federal government’s powers, by contrast, are limited. Unlike the states, the federal government lacks “plenary police power that would authorize enactment of every type of legislation.” United States v. Lopez, 514 U.S. 549, 566 (1995). Instead, the federal government “is acknowledged by all to be one of enumerated powers,” McCulloch v. Maryland, 17 U.S. 316, 405 (1819), meaning that Congress can pass laws only if a particular constitutional provision authorizes it to do so.

Two provisions are especially pertinent in the fight against COVID-19:

The spending clause gives Congress its most flexible power. It authorizes Congress to spend money to “provide for the common Defence and general Welfare of the United States.” U.S. Const. art. I, Section 8, cl. 1. Courts have interpreted the clause to mean the federal government can spend its significant financial resources however it wishes, as long as it is for the general welfare.

The spending power comes into play, for example, when the president declares a national emergency, thereby triggering federal funding for crisis relief. Even more prominently, Congress has flexed its spending muscle by passing a multitrillion-dollar stimulus bill that disburses money to individuals and businesses. Congress could also influence state and local governments by conditioning federal funding on how those governments respond to the pandemic — though it has yet to do so.

Congress also derives power from the commerce clause, the constitutional source of most modern legislation. The Supreme Court has interpreted this clause to mean Congress can regulate not only foreign and interstate commerce but also any activity that, in the aggregate, has a “substantial economic effect” on interstate commerce. See Wickard v. Filburn, 317 U.S. 111, 125 (1942).

Though there are some limits, the commerce clause gives the federal government significant authority to take action to address COVID-19. For instance, the Public Health Service Act invokes the clause to authorize the executive branch to quarantine and isolate individuals to prevent the spread of communicable disease across international and even state borders. See 42 U.S.C. Section 264.

But the commerce clause doesn’t mean the president can simply impose a nationwide quarantine or shutdown order. Despite President Donald Trump’s claim to have “total” authority to control whether the country is open, he has neither the constitutional nor the statutory authority to do so. The constitution limits the president to enforcing laws that congress has already passed (and executing a handful of presidential powers not applicable here). And no statute gives the executive branch the power to quarantine or shut down large swaths of the country at once. At least for now, federal law allows federal officials to quarantine only individuals who are “reasonably believed to be infected with a communicable disease” and likely to move across state lines or infect someone likely to move across state lines. See Section 264(d)(1).

But while federal law does not now go so far, the commerce clause might allow Congress to pass a new law imposing a quarantine or a national shutdown or stay-at-home order. To be sure, public health laws are typically within the province of the states, and Congress’ commerce power doesn’t extend to purely local activities that have no effect on interstate commerce. See United States v. Morrison, 529 U.S. 598 (2000); Lopez, 514 U.S. 549. But, as Justice Antonin Scalia put it, “if anything relates to interstate commerce, it’s communicable diseases.” Transcript of Oral Argument at 30, United States v. Comstock, 560 U.S. 126 (2010) (No. 08-1224). A contagious virus is no doubt transferred through interstate commerce, quickly hopping from state to state on airplanes and highways, at gas stations and shipyards. And as jobless claims spike and the stock market plunges, a pandemic and the collective response to it have a “substantial economic effect” on interstate commerce. See Wickard, 317 U.S. at 125.

On the other hand, however far Congress’ emergency powers might extend, none of this is to say Congress should impose a one-size-fits-all solution. It may well be that New York City requires a different response than Omaha — or even Los Angeles. While a global pandemic is by no means a local problem, it may be a global problem that requires local solutions.

What happens when the federal and state governments’ powers collide?

For better or worse, our country’s division of governmental powers between state and federal authorities makes it difficult, if not impossible, to adopt a uniform, nationwide response to a pandemic.

As we have alluded to, the federal government and each state and city have distinct political realities and practical needs that inevitably lead to different responses to COVID-19. Some states and localities were quick to issue business shutdowns and stay-at-home orders, while others (particularly in rural areas) were much slower to issue such orders if they issued them at all. For now, the Trump administration has issued “guidelines” for reopening the country, to be implemented at the governors’ discretion. But it’s certainly possible that some governors will not see eye to eye with the White House. Federal and state policies may conflict and, if they do, such conflicts could lead to some interesting questions of state-federal priority.

For starters, consider whether the federal government could override states that, in the federal government’s view, have not adopted a strong enough COVID-19 response. The Constitution’s supremacy clause makes clear that federal law is “the supreme Law of the Land.” U.S. Const. art. VI, cl. 2. As a result, any state or local policy that conflicts with federal law is preempted and “without effect.” Maryland v. Louisiana, 451 U.S. 725, 746 (1981). So assuming the federal government has power to enact a stay-at-home or shutdown order — which as discussed, is unclear — such an order would override any contrary state or local policy.

That said, the federal government cannot compel the states themselves to adopt stay-at-home orders or other measures. Under what’s known as the “anticommandeering” doctrine, the constitution withholds “from Congress the power to issue orders directly to the States.” Murphy v. NCAA, 138 S. Ct. 1461, 1475 (2018). Because the federal government “may neither issue directives requiring the States to address particular problems, nor command the States’ officers ... to administer or enforce a federal regulatory program” Printz v. United States, 521 U.S. 898, 935 (1997), the federal government would be on its own to enact and enforce any federal action across the country. This could be logistically untenable, since the federal government likely lacks the immediate capacity to police individuals’ and businesses’ compliance with large-scale stay-at-home and shutdown orders.

On the flip side, could the federal government undo state and local stay-at-home and shutdown orders by directing a top-to-bottom reopening of the economy? Perhaps not. Putting aside how such federal action would be enforced, this scenario could bring into play one of the few limits on the commerce power: Congress cannot compel commerce. In National Federal of Independent Business v. Sebelius, 567 U.S. 519, 552 (2012), the Supreme Court held that the Affordable Care Act’s individual mandate, which required all individuals to purchase and maintain health insurance, exceeded Congress’ commerce power. The court distinguished regulating “existing commercial activity” (which Congress may do) from compelling “individuals to become active in commerce” (which Congress may not). Id.

Applying that holding in our hypothetical scenario, one could argue that because the states’ police power has caused individuals to stay home and businesses to close, there is no commerce for the federal government to regulate. Since Congress cannot compel commercial activity where none exists, it’s questionable whether the federal government could reopen the economy against the states’ will.

Perhaps it is with these constitutional limits and enforcement problems in mind that the federal government has thus far chosen to leave stay-at-home and shutdown orders to the states.

How far can government limit individual rights during a pandemic?

Antipandemic measures around the nation have had a severe toll on the exercise of constitutional rights. Rights to speak, to assemble, to worship, to buy firearms, to travel, and to vote — to name just a few — are all at risk. And that is to say nothing of the potential takings clause implications of shutting down private businesses and properties on a large scale.

Many lawsuits have already been filed to vindicate these constitutional rights. How each resolves will vary, but some general principles may apply.

As discussed above, most would agree that government action can suspend or limit otherwise sacrosanct constitutional rights when necessary to defend the public’s health and safety. As the Supreme Court once put it, “[W]hile the Constitution protects against invasions of individual rights, it is not a suicide pact.” Kennedy v. Mendoza-Martinez, 372 U.S. 144, 160 (1963).

But even a public health crisis like COVID-19 doesn’t give the government carte blanche. When constitutional rights are at stake, government action must still be sufficiently tailored to achieve the government’s interest.

Consider bans on worship gatherings. In Kentucky, a federal district judge issued a restraining order against the city of Louisville’s attempt to prevent churches from holding “drive-in” Easter services. On Fire Christian Ctr., Inc. v. Fischer, No. 3:20-CV-264-JRW, 2020 WL 1820249 (W.D. Ky. Apr. 11, 2020). Louisville’s social distancing protocols were not narrowly tailored to the government’s public health interests, the court wrote, because they didn’t “prohibit a host of equally dangerous (or equally harmless) activities that Louisville has permitted on the basis that they are ‘essential,’” such as drive-through liquor stores. Id. at *7. In short, the court reasoned, “if beer is ‘essential,’ so is Easter.” Id.

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Justice Robert Jackson once warned that in times of “public anxiety,” there can be a strong tendency to “emphasize transient results” and “lose sight of enduring consequences upon the balanced power structure of our Republic.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 634 (1952) (Jackson, J., concurring). We see the dangers of that today, as governments at home and abroad respond to the pandemic by overreaching in ways that could have lasting consequences. Thus, while state and federal governments may have broad powers to combat COVID-19 (and rightly so), we should heed Justice Jackson’s advice and not jettison the constitutional limits, structures, and rights that preserve our freedom — even in the midst of a pandemic.