During a declared emergency, governmental powers can be significantly expanded.
The Federal government: Much of its power to respond to national emergencies is based on statutory authority derived from the Commerce Clause, which gives Congress broad ability to regulate foreign and interstate commerce. It can also tax and spend for “the common Defense and general Welfare.”
The State government: Maintains even broader powers than the federal government. State governments can exercise what is known as “police power” during declared emergencies. Right or wrong, states generally retain the power to make laws for the purpose of protecting health and safety.
States may also take more drastic measures, such as requiring citizens to be tested or vaccinated. In Jacobson v. Massachusetts (1905), the Supreme Court considered a challenge to a state law requiring everyone to be vaccinated against smallpox. Henning Jacobson refused vaccination and was convicted. The court upheld the law and Jacobson’s conviction. “The Constitution,” Justice John Marshall Harlan wrote for a 7-2 majority, “does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint.” Instead, “a community has the right to protect itself against an epidemic.” Its members “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.” States also have the power, beyond criminal law enforcement, to make quarantine and isolation effective. If presented with widespread noncompliance, governors may call National Guard units to put their orders into force.
The good news upon which we should ponder
The Supreme Court has said, “an emergency may not call into life a power which has never lived,” but “emergency may afford a reason for the exertion of a living power already enjoyed.” (Wilson v. New, 243 U.S. 332, 348 (1917) In other words, by declaring a national or state emergency, neither the federal government nor state governments can grant themselves any new power. Rather, the emergency declaration allows governments to unlock powers that normally lie dormant.
Even if either the federal or a state government is acting within its authority to respond to COVID-19, a state of emergency does not give it free rein to violate constitutional rights. That said, the existence of the emergency may justify limiting the scope of certain rights, at least on a temporary basis.
State legislatures have an important role in making sure these powers are not abused and that they do not undermine the separation of powers vital to our system of government. Legislatures are to exercise checks on governors' emergency authority. Legislatures have the authority to legislate firm limits onemergency executive power.
Statutes defining executive authority during an emergency cannot be modified by executive order. Governors cannot create emergency rules that grant themselves authority beyond the statutory limits.
When the government claims there is a “compelling state interest” that will require a restriction of Constitutionally guaranteed rights, the interventions must pass the “strict scrutiny” standard. Strict scrutiny means that laws and orders temporarily restricting civil liberties must use the “least restrictive” means possible to achieve the identified compelling state interest. Laws and orders must be “narrowly tailored.”
Where are the legislatures? If the legislatures have abdicated the role of providing legislative oversight and a necessary check to expanded executive power, who – then – is guaranteeing that the strict scrutiny standard is being upheld?
Upon whom is the burden of proof: the people to prove their liberties should be respected or the government to prove that they shouldn’t?