State and local public health laws are exercises of the police power. Previous Next. The Police Power. The Public Health Map - Beta, under revision. Governors need some affirmative participation from legislatures to ensure that their actions are both responsive to the needs of citizens and founded in law.
Fortunately, some state judiciaries are reining in their respective executive branches. In Wisconsin , the state supreme court invalidated a lockdown order for failing to follow state administrative procedures. Similar challenges in Oregon and Ohio have also met with some success. There are, of course, some practical reasons for limited legislative involvement in an emergency. Structural cooperation is the beginning, not the end, of concerns that must be addressed when exercising the police power in a pandemic.
State law is generally more expansive regarding rights than federal law. First, while many rights explicitly guaranteed in state constitutions mirror their federal counterparts, state courts sometimes read similar language more expansively—treating the federal constitutional right as a floor not a ceiling.
Third, state constitutions often include rights in the form of affirmative state responsibilities to their citizens that specify how and where the states should direct their police power. In a pandemic that takes lives while lockdowns take livelihoods, responses must respect the economic freedoms of all Americans. Before we knew how the disease spread, states across the nation shuttered businesses. That was sensible in March and reasonable in April, but since those early weeks, states have needed to rethink their actions.
In the early days, for example, Michigan banned the sale of certain consumer items—typically relating to recreational activities but also taken to mean such things as child car seats —while allowing the sale of others. This seemingly arbitrary regulation hurt retail stores, which we now know can remain open safely with distancing protocols, and closed off many fun and fulfilling hobbies that millions of people trapped in their homes could have enjoyed. Instead he ordered bars closed again and limited restaurant services.
While the order could be more narrowly tailored—limited to restrictions on indoor service, for example—bars are uniquely dangerous in a way that gardening is not. Close quarters, indoor crowds, and intoxicants that may cause people to throw caution to the wind could all contribute to viral spread. This goes for noneconomic activities too. Emerging evidence suggests that for most outdoor and some indoor activity, reduced capacity and distancing work just as well as shutdowns, whether these are gyms, parks, or pools.
If so, then states are not justified in sacrificing the physical and mental health of the populace in the name of dubious disease prevention.
Not all state responses have been impositions on economic liberty. They will find that many regulations are for special interests and industry protectionism, lacking any foundation either in or out of a pandemic. Finally, states have delegated some of their police power to local municipalities.
This decentralized approach allows an even more tailored response to a crisis than states can manage. Carolene Products Co. Bowles, U. See also Fernandez v. Wiener, U. Ames , U. Ferger, U. Day, U. The Civil Rights Act of , which made it a crime for one person to deprive another of equal accommodations at inns, theaters or public conveyances, was found to exceed the powers conferred on Congress by the Thirteenth and Fourteenth Amendments and hence to be an unlawful invasion of the powers reserved to the states by the Tenth Amendment.
Civil Rights Cases , U. Congress has now accomplished this end under its commerce power, Heart of Atlanta Motel v. Mc-Clung, U. Jones v. Alfred H. Mayer Co. Breckenridge, U. Guest, U. Kahriger, U. Annotations Federal Police Power. Justia Legal Resources. Find a Lawyer.
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