Overview of State and Local Government Powers during the Covid-19 Pandemic, 0720 ALBJ, Vol. 81 No. 4 Pg. 296 (July, 2020)
| Author | By Phillip D. Corley, Jr., April B. Danielson, and Gabe M. Tucker |
| Position | Vol. 81 4 Pg. 296 |
By Phillip D. Corley, Jr., April B. Danielson, and Gabe M. Tucker
State and local governmental powers have been a significant focus during the COVID-19 pandemic as governmental entities of all levels have issued both guidance and directives in response to the pandemic. As more medical research is conducted and information is dispersed through news organizations, citizens may find that it is difficult to determine how to navigate the ever-changing restrictions and guidelines issued by the government at all levels. Some residents have not left their homes, while others have continued with their daily lives as best as possible. One thing is clear–the COVID-19 virus and the changes it brought came quickly.
Many states, including Alabama, are in the stage of re-opening. Reopening brings with it many challenges and questions, specifically in regard to state and local government powers. The constitutionality of quarantines and stay-at-home orders has been questioned. Cities that are coronavirus hot-spots in states that are re-opening worry what the numbers will look like a month from now. People have lost jobs, are unable to see family members, and are now required to wear masks in certain areas. Those who live alone are living in isolation, and those who have children need a break. How much longer is this way of living sustainable? Even more so, is all of this constitutional? This article will detail the actions taken by the federal government and the State of Alabama in response to the COVID-19 pandemic and discuss the constitutionality of state and municipal response measures, enforcement of these measures, and liability issues for Alabama municipalities, business owners, and employers.
Constitutionality of States Implementing Stay-at-Home Orders
Individual states possess the power to establish and enforce laws to protect the public health, safety, and general welfare. This power, known as the state police power, comes from the Tenth Amendment to the Constitution which grants states the “powers not delegated to the United States.”1 Nearly 200 years ago, in 1824, Chief Justice John Marshall in Gibbons v. Ogden described state police powers as those “which embrace[] everything within the territory of a State, not surrendered to the general government[,] all which can be most advantageously exercised by the States themselves.”2 Chief Justice Marshall then listed examples of these laws exercisable by the states, and among them are, yes, “quarantine laws” and “health laws of every description.”[3]
Several decades later, in 1905, the United States Supreme Court decided Jacobson v. Commonwealth of Massachusetts.4 During the relevant time period of this case, the country was experiencing a health emergency similar to COVID-19, but with smallpox. The law at issue was a statute passed by Massachusetts that allowed cities or towns to require that all residents be vaccinated if “necessary for the public health or safety.”5 Under the authority granted by the statute, the City of Cambridge adopted a regulation requiring all of its inhabitants to be vaccinated to prevent the spread of smallpox.6 Jacobson refused the vaccination, Cambridge prosecuted him, and a jury found him guilty.7 Jacobson appealed his conviction and the case made it to the United States Supreme Court.
The question to be addressed on appeal was whether Cambridge’s vaccination law violated Jacob-son’s Fourteenth Amendment right to liberty. The Court, with a 7-2 majority, held that the law did not violate Jacobson’s right, because the states possess the police power, which “must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and public safety.”8 The Court made several assertions and conclusions that are directly applicable to the COVID-19 pandemic today, such as: • “[T]he liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint.”9
• “Even liberty itself, the greatest of all rights, is not unrestricted license to act according to one’s will. It is only freedom from restraint under conditions essential to the equal enjoyment of the same right by others.”10
• “Upon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.”11
• “[I]t is equally true that in every well-ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.”12
Ultimately, the Court held that to prevent the spread of an infectious disease, a state may use its police power to enact reasonable regulations in order to protect the public health and safety. Of course, regulations of this nature cannot be arbitrary, unusual, or unreasonable.13 As further explained by the Jacob-son Court, regulations that are intended to prevent the spread of an infectious disease should be based on the recommendations of a board of health.14
What does this mean today?
As the United States Supreme Court held in Gibbons, implementing and enforcing quarantine laws are well within a state’s police power.15 This means that the shelter-in-place and stay-at-home orders implemented by states thus far in response to COVID-19 are most likely constitutional. And because the police power also includes the power to pass “health laws of every description,” many of the other COVID-19 related regulations implemented thus far are most likely constitutional as well.16 This conclusion is supported by the holding in Jacobson, where the Court applied the Gibbons principles to a health emergency similar to what we are currently experiencing. If requiring vaccination is a constitutional measure which can be justified via the protection of the public health and safety, then measures requiring people to stay at home, closing non-essential businesses, and restricting travel are likely permissible as well. This is especially true because there is no vaccine for COVID-19 yet, and the only known way to prevent its spread is through limiting contact with other people. Additionally, a court would be unlikely to find the present regulations to be arbitrary, unusual, or unreasonable, because health boards across the United States, and across the world, have recommended such regulations to protect the public health and safety.
To address the somewhat controversial mask-wearing guidelines and requirements, it is necessary to analyze the differences and similarities between a vaccination and wearing a mask. A vaccination is a comparatively invasive procedure to limit the spread of disease. Vaccinations require antigens to be injected into the body so the immune system can produce antibodies to protect from later exposure to viruses or bacteria.17 A mask, on the other hand, is an item of clothing that covers one’s mouth and nose. A mask does not require anything to be injected into a person, nor does it alter anything in a person’s body. Since the Court in Jacobson found that a vaccination requirement did not violate a person’s right to liberty, then it would likely find that governments suggesting or mandating that people wear masks to prevent the spread of COVID-19 do not violate the right to liberty either.18
Municipal Government Power To Implement COVID-19 Response Measures
Not only are there questions surrounding a state’s power to issue stay-at-home orders, but there are also questions regarding the power that municipal governments possess to implement preventative response measures that...
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