Police Powers During a Pandemic: Constitutional, but Not Unlimited

Weighing the state and local response to COVID-19


State and local governments are currently taking dramatic and sometimes unprecedented action in response to the COVID-19 pandemic, including "shelter in place" orders, bans on public gatherings, and business shutdowns. What's the legal basis for such sweeping actions?

In the U.S. constitutional system, each state possesses a traditional authority to regulate in the name of public health, safety, and welfare. Known as the police powers, this authority has deep roots in Anglo-American law. In his landmark Commentaries on the Laws of England (1765), the British legal theorist William Blackstone defined the police powers as "the due regulation and domestic order of the kingdom, whereby the inhabitants of a State, like members of a well-governed family, are bound to conform their general behavior to the rules of propriety, good neighborhood, and good manners, and to be decent, industrious, and inoffensive in their respective stations."

Citing Blackstone, the American legal theorist Thomas Cooley, in his influential Treatise on the Constitutional Limitations Which Rest upon the Legislative Power of the States of the American Union (1871), said the police powers of a state "embraces its system of internal regulation, by which it is sought not only to preserve the public order and to prevent offenses against the State, but also to establish for the intercourse of citizen with citizen those rules of good manners and good neighborhood which are calculated to prevent a conflict of rights, and to insure to each the uninterrupted enjoyment of his own, so far as is reasonably consistent with a like enjoyment of rights by others."

As one example of the police powers put to appropriate use, Cooley pointed to "quarantine regulations" and related measures designed to protect the public from persons or property "infected with disease or otherwise dangerous."

The U.S. Supreme Court has long agreed that the states have police powers of this sort. In Gibbons v. Ogden (1824), Chief Justice John Marshall observed that the police powers, that "immense mass of legislation," as he put it, "which embraces every thing within the territory of a State, not surrendered to the federal government," includes "quarantine laws" and "health laws of every description."

But the police powers are not a blank check—the state may not do absolutely anything it wants simply by invoking public health or safety.

Here's a framework for weighing the constitutionality of purported health or safety laws, regulations, and orders. The goal of this framework is to prevent or curtail the illegitimate use of a state's otherwise lawful police powers.

The first question to ask is whether the law, regulation, or order serves a genuine public health or safety purpose. Plenty of regulations would pass muster. But some would not. For instance, is public health or safety advanced in any way when a state requires a would-be interior designer to spend time and money obtaining a state-issued occupational license? Of course not. By contrast, is the public made safer when a confirmed COVID-19 patient is quarantined until a doctor gives that person the all-clear to return to normal life? The answer to that would seem to be a clear yes.

The next question to ask is whether the law, regulation, or order is the least restrictive means available for the state to pursue its legitimate public health or safety objective. Once again, quarantining a confirmed COVID-19 patient (until non-contagious) would seem to fit the bill. Other severe measures that similarly burden civil liberties might not. The details matter.

Another key question to ask (when appropriate) is whether a "temporary" measure has exceeded its shelf life. An emergency measure that was perfectly justifiable yesterday may become constitutionally suspect tomorrow. Things change and it is paramount to return to a normal footing as soon as the crisis has lessened or passed.

To be sure, there will be hard cases and this framework does not provide all the answers. We are likely to be arguing about the wisdom and legality of many government responses to COVID-19 for many years to come. Still, it does not hurt to remember that a state's police powers are not unlimited, even amid a pandemic.

NEXT: Panic-Buying Isn’t Prepping for COVID-19

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  1. what about the philly police basically throwing up their hands and giving up.

    1. I read about that as well. So theyre basically saying if u steal or destroy property, which burgarly typicallly requures destruction to get in somewhere then you have a good chance of not actually being punished for it until a year later? If ever. Thats the government giving criminals carte blanche to do what they want. I thought government was supposed to be the final dispenser of justice.

      1. I thought our tireless public servants would protect us hence us not needing a gun.

      2. On the flip side, new gun owners might be able to properly protect that property and they are stuck at home.
        =less burglars

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    2. what about the philly police basically throwing up their hands and giving up.

      Are they throwing up their hands on all policing activities or just the ‘plague policing’?

      Local officers I know pretty overtly say the latter. The Governor says “All bars and restaurants shall be closed.” and the local cops are A) pissed that they can’t get their Dunkin’ Donuts and B) plainly stating that they will remove unwanted people from property just like a week ago, but aren’t going to go around checking doors and busting up peaceful assemblies.

      I certainly understand that not all officers and forces are made the same but it would probably behoove us as libertarians to recognize the cops who have at least some shred of constitutional awareness and distinguish them from those who don’t.

      1. Chief Outlaw, when she was here in Portlandia, her loyal men in blue refused to investigate when my vehicle was stolen. Philly is welcome to her.

  2. HA. It feels like we’re inching closer and closer to full-on martial law by the minute.

    Some governors like Gavin Newsom are already openly telling the public that they’re thinking about doing it.

    1. Martial Law ain’t happening as it’s a line too far.

      Most of the nonsense unconstitutional government tyranny is coming from Lefty states and the media.

      If Trump caves to these fucking Lefties and suspends habeas corpus or some stupid Martial Law, then it’s on. This experiment is over. We will just start over with the basic US Constitution after all the Lefties have been banished from America. Get full use of that Eminent Domain Clause.

      It would be fun to provide just compensation to Lefties with their share of the National Debt.

  3. Another key question to ask (when appropriate) is whether a “temporary” measure has exceeded its shelf life.

    Oh, come *on*, Damon! Next you’ll be suggesting that all laws should have a five-year sunset provision.

    1. That’s crazy.
      One or two years would be ok.

  4. What is mentioned in the article is that yes the state can quarantine the sick but where does it have the right to essentially quarantine the healthy under shelter in place laws. The healthy can not make people sick until proven to be a guilty.

    1. Several states have closed state parks. Not the lodging, dining, and gathering facilities, the entire park. I don’t see how such an action doesn’t abjectly fail legitimate interest and least burdensome arguments. The closing of bars and public dining rooms is similarly suspect.

      It’s pretty clearly animism at this point. Any *place* where the specter of COVID-19 may lurk needs to be exorcised by the state before civilians can re-enter.

      1. Yes, the closing of outdoor recreation areas that don’t generally require or involve close contact, and don’t take many personnel to operate- hiking trails, outdoor parks, and the like- is ridiculous and counterproductive. In places where it is nice enough, that’s exactly what you should want people to be doing- be outside in the fresh air, exercising. Similarly, as discussed in the article from yesterday (FINALLY), curfews make absolutely no sense, at least if the objective is curbing spread of the virus. This isn’t a vampire plague, the virus doesn’t prey at night. If anything, you should be encouraging people to spread out there activities across the night hours vs. doing everything during the day as normal, thus reducing the average people/sq ft/hr in grocery stores and the like.

        1. exactly, nearly all stores by iowa’s govenor directive are closing early to encourage people to not be out… however. I was at the grocery store that closed at 8pm… you would mistake it for Black Friday. I even overheard the staff complain about how overrun they were, keep in mind this was a week after the mad rush panic buyers. So, once again, government’s unintended consequences puts more people at risk from the very thing they claim to be solving. No matter the issue, rinse and repeat, government will do the exact opposite of the thing it is trying to solve.

      2. I don’t have a constitutional argument with States closing State Parks. If they can designate the land as such and infer rules such as closing time and litter laws, or even disposing of the property and closing it as a State Park, then they have the authority to temporarily close it for other reasons, and there is no ‘ONLY the authority to close picnic tables and shelters’. There are no ‘rights to visit State Parks’.

        You do however, have a point with regard to private businesses, and perhaps that is the reason they haven’t come down hard with respect to forced business closures, even if it does sound forced. The camel’s nose on this one however, was allowing them to license your business in the first place. It infers a state interest in your business, which is not constitutional. This is also the problem with allowing government to set up rules in other areas such as Internet law, insurance law, and run education and healthcare. Once they establish a state interest, most limitations are where you choose to be on that scale.

        That of course is only one of the problems that Warren had where she wanted to subject certain businesses to national charters. It was the backdoor to nationalizing them. At it is likely what the left will utilize as “necessary” in the near term economy under the theory that business is too vital to American interests to let non-governmental types [aka business owners] run them. Remember, “never let a crisis go to waste” was probably the most honest [and later regretted] comment from the left in the last 100 years.

        1. If they can designate the land as such and infer rules such as closing time and litter laws, or even disposing of the property and closing it as a State Park, then they have the authority to temporarily close it for other reasons

          They have the right to do so for other reasons, but not *any* reason. They can’t close the park to Muslims because Jesus told them to.

          1. They have the right ability to do so for other reasons


        2. Additionally, it’s a bit paradoxical to the layer cake.

          The President *should* have a strong compelling interest and be taking a least burdensome approach when sending in the army. The governor *should* have a strong compelling interest and be taking a least burdensome approach when sending in the national guard.

          The President or Governor more afraid to lose his job over shutting down a public park is less likely to shut down a private business for the same reason. Fight the fight on their side of the line, not ours.

  5. Surprised there isn’t more talk about this. Or maybe I’m not surprised anymore. Everyone so very willingly accepted the shock and awe of government control of everything. I expect to be pulled over on my bicycle and told to show papers, please.

    1. Imagine what they’d try to pull if they had disarmed us already.

    2. A lot of it is people willing to go along with things because it is what they would do anyway. The more extreme things get, the less likely that will happen.

    3. The average person mustn’t care about their liberties.

  6. Since nobody has figured out how to apply any perspective to this fascist takeover, think about this: 99% of the deaths in Italy were in people with pre-existing conditions. Italy has a population of Wuhan Chinese on the order of 100,000 who were traveling freely between the countries until very recently, so Italy’s death rate is higher than nearly everywhere else, at about 8% of those infected. That’s far higher than the US rate of about 1.5%.

    Italy’s national health authority has found that “just three victims, or 0.8% of the total, had no previous pathology. Almost half of the victims suffered from at least three prior illnesses and about a fourth had either one or two previous conditions. More than 75% had high blood pressure, about 35% had diabetes and a third suffered from heart disease. The average age of those who’ve died from the virus in Italy is 79.5. As of March 17, 17 people under 50 had died from the disease. All of Italy’s victims under 40 have been males with serious existing medical conditions.”

    The takeaway? Stop panic-buying tissue and stop putting your own necks in the government’s fucking leash.

    1. Yeah the only problem I have with Damon’s analysis is that for these police powers to be legitimate I have to accept the theory that Covid19 presents some extraordinary threat to public health. I submit that it does not.

      1. I would agree, however, that isn’t what the law says.

        The government only need to believe there is a problem Such that it endangers the public, not necessarily demonstrate that there is one.

        They win that argument every time.

  7. “For instance, is public health or safety advanced in any way when a state requires a would-be interior designer to spend time and money obtaining a state-issued occupational license? Of course not.”

    I know it’s not very libertarian, but there are actual safety issues, regulations, and laws, that interior designers have to be aware of and responsible for in their designs, at least on the commercial side. Flame spread ratings for upholstery, wet and dry coefficients of friction for flooring products, egress access around furniture, clear floor space for doors and other built elements, etc.

    Now, you could argue as to whether or not these regulations and laws should be dictated and enforced by the state – that’s a very valid angle, because trade industry groups and private professional organizations already set the standards, and clients (and their lawyers) would demand as much in any event.

    1. STFU! There’s literally not a single job function you can come up with where I can’t concoct some bullshit hypothetical of how someone might screw it up, and pretend that some magical license will prevent that from happening. Have you ever gotten a bad haircut? There was a license there. Ever had someone cause an accident? There was a license there. How about a bad teacher, a botched surgery, a terrible taxi ride, or bad food from a restaurant? All of those are licensed professions. Same with the legal profession and financial sectors.

      Simply put, liability and the market take care of 99% of what licenses are supposed to monitor but do not. If your barber starts giving everyone a Stooges haircut, that license means nothing. Conversely, the market will shut him down before the month is over.

      Few licenses require ongoing testing to make sure people have kept up with new issues or even retained what they used to know. At best, a license may indicate that someone knew enough answers at one time to pass an exam. I know doctors who graduated 50 years ago and couldn’t pass the license exam they took then, let alone now. Yet they are damn fine doctors within their limited scope. Just don’t ask your dermatologist where your piriformis muscles are.

      There are a few licenses that require continuing education, but almost none that require proof of current competence. But again, if they screw up too often, the market and their insurance company will put them down far faster than any licensing board, most of which will only remove a license in extreme circumstances of embarrassing the profession.

      1. There’s literally not a single job function you can come up with where I can’t concoct some bullshit hypothetical of how someone might screw it up, and pretend that some magical license will prevent that from happening.

        I was going to say the same. There are actual laws and regulations. The ‘actual’ issues are, more often than not, hypothetical issues and, moreover, hypothetical issues with ‘few actual solutions’.

      2. Like I said, “trade industry groups and private professional organizations already set the standards, and clients (and their lawyers) would demand as much in any event.”

        I was mostly responding to the opinion that the article’s author has repeatedly expressed – look back at previous articles – that interior designers don’t have much to do with public safety. It’s a common misconception. Likewise, you assert that few licenses require continuing education, but were you aware that interior designers are one of those?

        I agree that the market – the public, the clients (plus their lawyers and insurance brokers) and the private trade groups (like the AIA, NCARB, and NCIDQ) probably are enough of a guard that we don’t need state intervention. In some states, it’s not the government, but the trade organizations that demand the continuing education. Usually, states just use the same standards as the industry group.

        Most people do not realize that, with the exception of a few states or localities, the government does not write the building codes. They adopt them, typically, sometimes with some modifications. The actual code decisions are made by a group of private industry experts – architects, engineers, contractors, manufacturers, etc.

  8. I have started “virtual social distancing” – I can’t deal with The Stupid on social media anymore. I am SO GLAD outlets like exist, because it gives me a tiny bit of hope that there are still some people out there who prefer dangerous freedom to “peaceful” (and “safe”) slavery.

    1. Yep, I had to deactivate my Facebook on Sunday. Not sure if I will ever go back. I just couldn’t handle seeing so many people treat this so illogically, and then respond with “SO OLD PEOPLE DON’T MATTER” when you said that maybe it was a bit overblown when you consider the true risks. And of course, when things really started getting cancelled and businesses/governments started panicking, that alone was complete justification for freaking out in their mind. “STILL THINK IT’S NO BIG DEAL??? WHY ELSE WOULD THEY SAY IT WAS??” As if someone “important” telling you something is worth freaking out about and completely turning your life upside down over should be prima facie evidence that it is.

    2. This really has become my go to discussion site. Everyone else has lost their minds.

      1. As the USA recovers from this SARS-COVID hysteria, the economy will roar back and then Trump will win reelection.

        Imagine all the hysteria going on to destroy the USA now. After Trump gets reelected America will be Lit AF.

        1. Maybe not. I’m beginning to believe that these idiots have managed to crash the economy and we may be past he point of no return. We’ve entered the world of mass hysteria. The political fallout at this point seems pretty unpredictable to me.

          1. When the alternative is Joe Biden…….

        2. I hope you are right, but with each passing day, and each draconian new state edict, I am growing more and more pessimistic. The economy is like a long train, if it actually comes full stop, we are in a long wait for that last caboose to get moving again. The media and maybe some large investment funds are pushing for this stop more than I have ever seen, some for political reasons, some for financial. I am not terrified of the virus, I am terrified by the lax average American attitude that does not understand just how bad their life is about to get if the world economy stops.

  9. What does the constitution of the US have to do with free minds and free markets, Reason? The state claims it is empowered to the things it claims it is empowered to do. Ok. And?

    1. unreason doesn’t like the US and state Constitutional limitations and powers.

      unreason staff have yet to write an article that describes state powers and limitations under their respective state constitutions and the US Constitution.

      It’s a Constitutional Democratic Republic, so states dont have powers to do whatever they want.

  10. The federal government has enumerated powers and states don’t have plenary powers.

    States can only do what their state constitutions and US Constitutional powers and limitations allow states to do.

      1. also, 9th Amendment FTW

  11. The sad thing is that people have spread that bullzhit of government only has the right to stop crime. We have every right to stop all manner of attacks against us, its the seeking of justice thg hereafter thats supposed to be left to the state.

  12. Looks like Italy also loses a shit-ton more people every flu season than the rest of Europe:

  13. I wonder if Carl Ipsen’s book, Fumo: Italy’s Love Affair with the Cigarette, will see a resurgence in sales.

  14. Shelter in place in places like SF in a nice sounding way of saying cops can arrest you for a misdemeanor the second you step outside to do “nonessential” things.

    As Matt Welch noted in the article, people don’t have a limitless capacity for self imprisonment. Some of these state governments are flirting with a real life disaster down the road. You can’t have 20-30 million of people forcibly cooped up in their houses for 3,4 weeks. You either have a plan to enforce it or establish some kind of a parameter. Otherwise chaos would ensue as soon as thousands of Americans predictably begin to break curfew.

    1. The unintended/unanticipated consequences of these actions are already playing out in the Logistics Chain, as reported today in the WSJ.
      without some rational heads taking charge and telling the Monkey See – Monkey Do Political and Bureaucratic Hacks to modify their “orders” the entire nationwide Supply Chain will crumble. Pennsylvania has already been ordered by the Highway Transportation Safety Administration to re-open the roadside rest areas for truckers to get their mandatory rest periods in.
      Pennsylvania’s closure of rest areas affects deliveries to New York and all of New England.

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  19. It doesn’t matter because there is no evidence that the “Constitution” applies to anyone.

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  21. What I have learned from this…. is that we need a lot more lawsuits against local and state governments to test these waters. I know of one right now in New Hampshire to test whether that state can truly ban everyone’s right to freely assemble without due process. If the state loses or backs down it should open up most businesses that have been closed without any true evidence of health risks or at least a chance at due process for each and every business owner. If this stands, given any bad flu year, mayors/governors will have complete authority to close down all private business on fear alone. It is a sad day, especially in smaller communities where they actually have personal relationships, where we see these bars,restaurants, and businesses close and know they will likely never make it through this… and the residents say or do nothing to provoke the state and instead go watch netflix until the state says it is okay to come out now.

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  23. All this for a “pandemic’ that has killed about 12k worldwide thus far…sorry, if we’re all going to catch it lets get that over with asap.

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  28. There is no “police power” delegated to the federal government in the constitution, so that idea is a non-starter. The current state regulations are questionable at best, as the courts have opined that the first amendment is incorporated to the states.

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