PHARMACIST STEVE

As COVID-19 cases began to overwhelm hospitals in the United States, state and local governments enacted public health orders in order to slow the rate of infection. These measures have ranged from stay-at-home orders and mask mandates to business closures and bans on large gatherings. All in all, 42 states issued stay-at-home orders for their residents.¹ Yet despite the broad public support for such public health orders, businesses and religious groups have brought multiple lawsuits in response.² Most of these challenges have either contended that the regulating body does not have authority to issue the order, that the order was discriminatory, or that the order constituted a regulatory taking. Moreover, these challenges largely have been partisan in nature rather than in the interest of public health. The legal validity of these orders is also supported by a long history of precedent showing that policing powers reside with the state, with courts consistently ruling that these powers include instituting protections during public health emergencies, learn more about COVID legal battles in Texas.

The COVID-19 pandemic is not over.³ In fact, as states have begun to lift public health orders, rates of coronavirus cases have started to rise.⁴ As a result, many local and state leaders have begun reinstituting some public health orders, likely increasing the number of legal challenges that will be filed in the courts.⁵ In order to ensure the safety of Americans, it is critical that courts follow the law and not succumb to partisan political arguments that are at odds with case law and scientific reality. However, it is also important for courts to be attentive to the potential for states to abuse their broad emergency authorities—especially with an election looming.

Supreme Court precedent regarding states’ police powers

The U.S. Supreme Court has given states wide latitude in terms of their police powers, which provide state and local governments the authority to take action against impending threats to the safety of the public.⁶ Generally, the government must first declare an emergency.⁷ Once an emergency is declared, state and local governments have the ability to issue orders to protect public health and the power to restrain certain liberties.⁸

The 1824 Supreme Court case Gibbons v. Ogden distinguished between the authority given to the federal government and the authority of the state, holding that police powers largely belong to the state.⁹ Writing for the majority, Chief Justice John Marshall stated that these powers included the ability to impose isolation and quarantine orders.¹⁰ Almost a century later, in 1905, the court weighed in on the state’s authority to impose public health orders in the case Jacobson v. Commonwealth of Massachusetts, which concerned a law mandating smallpox vaccinations.¹¹ The question for the court in this case was whether the state had the authority to issue such a mandate under the 14th Amendment.¹² The court stated that it did, finding that a “community has the right to protect itself against an epidemic of disease which threatens the safety of its members.”¹³

Jacobson remains the principal case setting the legal standard for states’ police powers and has been cited to uphold public health orders in many of the cases described later in this issue brief. However, the ruling does not give states carte blanche when enacting public health orders, as they are not allowed to exercise their power in an “arbitrary” or “unreasonable manner.”¹⁴

Filed under: General Problems