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Two centuries of law guide legal approach to modern pandemic

March 29, 2020

As COVID-19 continues its assault on the country, never have state and federal powers to act in a national health emergency been tested to the extent that we are seeing today.

Residents in more than half the states and the District of Columbia have been ordered to stay home and businesses – including restaurants, health clubs and entire malls – have been closed as governors nationwide take extraordinary steps seeking to protect public health. This represents roughly two-thirds of the U.S. population.

Businesses including restaurants and gyms have been closed as governors nationwide take extraordinary steps seeking to protect public health.

Businesses including restaurants and gyms have been closed as governors nationwide take extraordinary steps seeking to protect public health.

Alessandro Salvador-EyeEm / Getty Images

As a new ABA Legal Fact Check posted last week explains, under the U.S. Constitution’s 10th Amendment, the nation’s governors largely have the legal authority to impose such stringent measures in the face of a health emergency. The amendment states that all powers not specifically given to the federal government fall to the states, and courts have upheld state authority to take such actions within their jurisdictions in a health emergency.

Nearly 200 years ago, the U.S. Supreme Court cited the 10th Amendment in Gibbons v. Ogden, a unanimous decision that largely reserved to the states the ability to impose isolation and quarantine conditions. The decision said that quarantine laws “form a portion of that immense mass of legislation which embraces everything within the territory of a state not surrendered to the general government.” In a Louisiana case in 1902, the Supreme Court gave states the power to quarantine an entire geographical area (Port of New Orleans) unless Congress decided to preempt them.

While more limited, the federal government retains power to regulate in certain circumstances. Through the Commerce Clause, which gives Congress exclusive authority to regulate interstate and foreign commerce, the federal government has broad authority to quarantine and impose other health measures to prevent the spread of diseases from foreign countries. In 1963, a federal judge in New York affirmed that power and that decision remains in effect today.

Last week, President Donald Trump raised the possibility of the federal government offering guidance to resume some activities by Easter. But, as the ABA Legal Fact Check pointed out, any executive order directing states to lift “stay at home” edicts would be unprecedented and would likely lead to a court challenge on constitutional grounds.

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