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In recent weeks, state governors and President Donald Trump have seemingly been locked in a duel of press conferences, as they roll out different talking points — and, at times, divergent policies — for tackling the novel coronavirus. In contrast to the President, New York governor Andrew Cuomo claimed full accountability last week for what happened in his state as it battles COVID-19:
“The state’s emergency powers now govern in this emergency,” he said. “Blame me! If somebody is complaining about a beach, if somebody’s complaining about business not open, school not open … blame me!”
More than two hundred years ago, another politician, James Madison writing as “Publius” in Federalist 45, similarly defended the power of individual states, also to the people of the state of New York:
“The powers delegated by the proposed Constitution to the federal government are few and defined,” he wrote. “Those which are to remain in the state governments are numerous and indefinite. … The powers reserved to the several states will extend to all the objects which, in the ordinary course of affairs, concerns the lives, liberties and properties of the people and the internal order, improvement and prosperity of the state.”
Madison and Cuomo share an understanding as old as the nation on where the power to protect public health and safety rests. An early Supreme Court case, Gibbons v. Ogden, affirmed that understanding: “quarantine laws” and “health laws of every description” are within the reserved police powers of states, Chief Justice John Marshall wrote.
The U.S. Constitution has little to say about federal emergency powers. The Founders, who were fans of geometry and enemies of the kind of concentrated power King George had used against the colonies, were determined to distribute power, and balance the ambitions of elected officials against each other. They left public health emergencies to the states as one of the reserved powers under the Tenth Amendment, and gubernatorial power in a public health emergency is at its zenith.
But that is not to say the governors are unchecked. They face two forms of accountability. The first is political: it comes after the fact, at the ballot box, when the voters issue a verdict on their term of service, and on legislators of their party. Governors also face accountability in the courts, and — particularly notable when it comes to their fidelity — to the Constitution.
What has been surprising as the nation confronts COVID-19 is the silence of the constitutional accountability check. In its absence, how far can governors go?
The constitution of every state allows the governor, as the chief executive, to declare a public health emergency. Facing COVID-19, most have done so: governors can prohibit price gouging, appropriate property subject to later compensation, provide emergency shelter, limit movement in disaster areas and ration commodities.
Absent an armed insurrection, presidents cannot override any of those. The federal emergency President Trump declared was based on federal law primarily concerned with accessing emergency grants and the logistical aid and coordination of FEMA, the CDC, the Public Health Services Corps and the Small Business Administration. In fact, the declaration of a national emergency was done partially to open the spigots of federal aid. Even the Defense Production Act is aimed at private parties, not the states.
In the past century, courts have occasionally gotten involved to check a governor’s power in the face of public health emergencies. In Jacobson v. Massachusetts (1905), the Supreme Court upheld the Commonwealth of Massachusetts’ criminal prosecution of Reverend Jacobson of Cambridge for his refusal to be vaccinated against smallpox during an outbreak of the disease. By contrast, states have lost in the past if their actions were discriminatory. During a 1900 outbreak of bubonic plague in San Francisco, the quarantine of an entire neighborhood — the city’s Chinatown — was struck down by a California federal court as an equal protection violation. Fast forward to 2014, and a federal court in New Jersey upheld the power of Governor Chris Christie (R) to order the quarantine of a nurse, Kaci Hickox, who was returning from Sierra Leone where she had treated patients during the Ebola epidemic.
The coronavirus pandemic shares some qualities with these past outbreaks, but differs in important ways that make the exercise of gubernatorial powers tricky. There is no vaccine available yet, so compelled vaccination is not an issue the way it was in the Jacobson case. And the restrictions states have been imposing do not appear to be a pretext for discrimination against protected classes or members of ethnic or racial minorities. Although if, as the data seems to be showing, essential workers are disproportionately people of color, an interesting question might be presented.
But the biggest and most problematic distinction is the one posed by the Hickox case — the question of who is infected. In the absence of widespread testing, the length of COVID-19’s incubation period and the fact that many infected people either are asymptomatic or very mildly symptomatic means that the usual rules for isolation of the sick and quarantine of those infected cannot be applied. Indeed, as testing has expanded, it shows a very high positivity rate, so large percentages of the population — particularly in areas that are deemed hotspots — are capable of infecting others.
The implications for state policy are massive, and also present a novel challenge for any court asked to apply traditional constitutional principles as an accountability check during or after this pandemic. The federal Constitution provides presumptive guarantees to Americans by virtue of their national citizenship, beyond their rights as citizens of particular states. It requires a presumption of neutrality in the way a state can treat its in-state residents and out-of-state visitors. The privileges and immunities clause generally guarantees a right to travel; but that right is subject to a limit. A resident of one state may be barred from entering another if there are no less restrictive means of achieving a legitimate policy goal, in this case limiting the spread of COVID-19.
So the roadblocks Governor Abbott of Texas ordered in recent weeks to prevent Louisiana residents from entering his state, and the checks of vehicles with out-of-state plates ordered by Governor Raimondo of Rhode Island might be upheld in court, at least until there are reliable and available testing kits. States with low infection rates could in theory bar people reasonably believed to be capable of transmitting the virus.
A March survey showed a bipartisan willingness to tolerate civil rights violations in order to confront the pandemic, though that thinking has been tested as stay-at-home order protests emerge in various hotspots around the country. Ironically, it is the far-right groups that have massed in state capitols carrying banners claiming that their constitutional rights are being violated. It is worrying that responsible advocacy organizations have been so quiet. Advocacy for the constitutional rights of individuals is a priceless adjunct to the political accountability metric, and one is incomplete without the other.
Research shows that voters are much more willing to assess political blame for failed policy at the state level than at the federal level. So when President Trump reversed course, agreeing that the governors would be responsible for decisions on how and when to reopen their states, he actually had come around to the more politically astute position. It allows him to claim credit for success and evade blame for failure. More than a few Republican governors are counting on their voters to reward a too-hasty reopening of their states’ economies; while those in more urbanized Democrat-controlled states have already seen too much loss of life, and are more cautious.
This makes the other accountability mechanism, the Courts, all the more important. One of the most insidious aspects of the current crisis is how it has made the unthinkable thinkable. We will likely wake up to the precedents we set today in a later crisis. Anyone who says that this epidemic is unique, and that the executive powers accreted now won’t be misused later, has not studied the history that Madison and his cohorts absorbed. Political accountability will provide a short-term verdict on how governors have protected the lives and livelihoods of their constituents during this crisis. A long term verdict will be assessed in how well liberty is protected.
Meryl Justin Chertoff is Executive Director of the Georgetown Project on State and Local Government Policy and Law and Adjunct Professor of Law.