Examining the Police Power of State and Local Governments
Article from For Liberty by Norm Leahy.
The list of state and local officials shutting down restaurants, bars, gyms, and other private businesses in order to stem the spread of coronavirus raises the obvious question: can they do that?
The short answer? Yes, state and local governments can do that, thanks to their surprisingly expansive police powers. As David French writes:
Yes, states have the power to order closures in the face of a known, deadly pandemic. The closures are coming from governors because the governors have the relevant legal authority. No, state closings are not evidence the president is failing, they represent federalism at work. And finally, closed businesses are likely not due any compensation (though the government can choose to provide relief)—at least so long as the closures don’t last long.
The constitutional principles behind states’ police powers are old and well established. Unlike the federal government, states, and localities:
…possess a general police power—an inherent authority that is then limited by both the state and federal Constitution. A governor or state legislature can often act without a specific grant of power. The power to act is presumed, absent a specific limitation.
In 1824, the Supreme Court observed in Gibbons v. Ogden that sovereign state authority includes the authority to enact “quarantine laws” and “health laws of every description.” Think of it like this: Just as the president and the federal government act at the peak of their powers when national security is threatened, America’s governors are often at the peak of their power when public health is at stake.
What about the president? Can’t he do even more in an emergency than a mere governor?
Finally, let’s briefly deal with a concern that I see floating across the internet—that the president can or will simply declare an emergency, sweep aside existing constitutional and statutory constraints on his power, and rule America with an iron fist. Declaring an emergency—even a public health emergency—doesn’t unlock a secret back door out of the Constitution. Rather, it mainly unlocks specific additional statutory powers, and those powers—such as making grants, waiving various regulations, and activating military medical resources—typically fall well short of the kind of general police power that American governors enjoy. The true extent of federal authority to respond to pandemics is a topic for a different piece, and declaring a public health emergency can free up immense federal resources to combat an outbreak, but the constitutional order remains in place—including the availability of judicial review for alleged violations of civil liberties.
It’s a fascinating article that adds depth to our understanding of just how much authority resides in the state governments during times of crisis – much more than any president has ever had.
Image Credit: By Jamelle Bouie [CC BY 2.0 (http://creativecommons.org/licenses/by/2.0)], via Wikimedia Commons