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This week, the White House has escalated its plans to push for the reopening of the economy following the shelter-at-home measures taken by governors across the nation in the face of the COVID-19 pandemic. On Monday, President Donald Trump declared that he had the “total” authority to do this. New York Gov. Andrew Cuomo then pushed back with an argument about states sovereignty and the 10th Amendment—which says that any power not specifically given to the federal government by the Constitution belongs to the states, or to the people.* In response, the president appeared to suggest that he would suppress any “mutiny” by governors resisting his demands that businesses reopen. Cuomo responded simply on Tuesday that “there are laws and there are facts, even in this wild political environment,” adding that if push came to shove and he had to go to court to defend his authority to protect New Yorkers from COVID-19, he would cite “the Constitution.”
“I’d call Alexander Hamilton,” Cuomo said of what his litigation strategy might look like. How has the Constitution been interpreted in cases of epidemics, and who actually has the authority to quarantine states? When it comes to opening up states in the face of a pandemic, the answer is fairly straightforward: Governors will have the final say. But when it comes to closing them, it’s more complicated. In any event, federal officials may have profound leverage to try to force reluctant governors to accede to the whims of the president.
It’s worth examining the constitutional history to consider how the situation might play out over the coming weeks and months should conflict between federal and state authorities escalate. More than 100 years ago, during the smallpox era, the U.S. Supreme Court issued two decisions about the “right” to interstate travel—which, by the way, does not appear in the Constitution— that are most relevant here. First, in 1902’s Compagnie Francaise de Navigation a Vapeur v. Board of Health of State of Louisiana, the court stated:
That from an early day the power of the states to enact and enforce quarantine laws for the safety and the protection of the health of their inhabitants has been recognized by Congress, is beyond question. That until Congress has exercised its power on the subject, such state quarantine laws and state laws for the purpose of preventing, eradicating, or controlling the spread of contagious or infectious diseases, are not repugnant to the Constitution of the United States, although their operation affects interstate or foreign commerce, is not an open question.
In other words, until Congress—not the president, who cannot enact law by himself—says otherwise, each state has the power to protect its own citizens from pandemic harms, in ways it sees fit.
Likewise, in the 1905 case Jacobson v. Massachusetts, the Supreme Court held:
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 …. 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.
More recently, in 1965 Chief Justice Earl Warren wrote for the Supreme Court in Zemel v. Rusk that while “[t]he right to travel within the United States is of course also constitutionally protected … that freedom does not mean that areas ravaged by flood, fire or pestilence cannot be quarantined when it can be demonstrated that unlimited travel to the area would directly and materially interfere with the safety and welfare of the area or the Nation as a whole.”
Since the Supreme Court has been consistently clear that this is a question for the states and for Congress, the next question should be: What has Congress said about the ability to restrict interstate movement in a time of public health threats? The answer is that Congress, in the past, has delegated power to the Secretary of Health and Human Services to authorize the surgeon general to make regulations “necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession.” That means, while the president’s authority to reopen businesses in the face of pandemic orders to do the opposite from governors is limited, he has more authority around placing restrictions on states.
In response to Ebola and earlier threats, for instance, such regulations have been enacted and used. One authorizes that if the director of the Centers for Disease Control and Prevention “determines that the measures taken by health authorities of any State or possession (including political subdivisions thereof) are insufficient to prevent the spread of any of the communicable diseases from such State or possession to any other State or possession, he/she may take such measures to prevent such spread of the diseases as he/she deems reasonably necessary.” Again, the authority runs toward more action, not less.
Indeed, on Thursday, the CDC extended a “no sail” order banning all cruise ships from boarding new passengers and placing restrictions on disembarking passengers—many of them Americans—in any American port. The CDC director also has the legal authority to issue a similar “no nonessential travel” order nationwide, restricting interstate travel to essential commercial and health needs. Trump does have leverage he can use against governors who don’t go along with his wishes, as he suggested when he said on Monday “the governors need us one way or the other.” That leverage might include withholding medical supplies in the federal stockpile from states, or vetoing legislation that might offer states badly needed federal funding to make up for coronavirus-related budget shortfalls.
As Cuomo noted in his press briefing on Tuesday, though, now is not the time for partisan politics and it should be in the president’s interest to cooperate with states. “I put my hand out in total partnership and cooperation with the president,” Cuomo said. “If he wants a fight, he’s not going to get it from me. Period. This is going to take us working together.”
Ultimately, a state’s stay-at-home restrictions should lawfully be allowed to continue for as long as its governor deems it necessary. And if there are other governors who disagree with continuing such orders for her or his own state, then if the CDC or Congress does not mandate a nationwide protection of everyone’s lives and resources to avoid a second surge of deaths, residents of the “lenient” states should not be allowed to travel into those states with ongoing stay-home orders. As a matter of law, public health, and federalism, each state has the final say.
Correction, April 14, 2020: This post originally misidentified the current governor of New York as Mario Cuomo.