Does the Federal Government or State Governments Have Primary Responsibility for Responding the Pandemic

Written By: Louis Wechter

The “federalism” question of whether the national government or state governments have primary responsibility for responding to the pandemic has been debated by politicians and scholars but has not been the focus of litigation. President Donald Trump has insisted that the President of the United States has the final word when deciding whether to reopen schools and businesses, but he has nevertheless largely left these decisions to state governors.

The Centers for Disease Control and Prevention (CDC) website outlines the current rules concerning which level of government has primary responsibility for the enforcement of quarantine and isolation procedures. The website has also been updated to add some information specific to the present COVID-19 pandemic.

The CDC says that the federal government “derives its authority for isolation and quarantine from the Commerce Clause of the U.S. Constitution.” Pursuant to that power, Congress enacted section 361 of the Public Health Service Act (42 U.S. Code § 264), which authorizes the U.S. Secretary of Health and Human Services “to take measures to prevent the entry and spread of communicable diseases from foreign countries into the United States and between states.” The Department of Health and Human Services has in turn largely delegated the day-to-day authority for carrying out these functions to the CDC, including as they relate to the COVID-19 pandemic.

By contrast, the CDC says that the States have “police power functions to protect the health, safety, and welfare of persons within their borders.” This gives the States broad power to “enforce the use of isolation and quarantine.” The CDC’s characterization of the relative roles of federal and states governments in responding to a pandemic suggests that the Federal Government may use its Commerce Power to regulate economic activity between states but not within them. Additionally, the Federal Government may assist state and local authorities with the prevention of spreadable diseases and the State governments may choose to accept or decline such assistance. The CDC website indicates that there are very few historical examples of federal isolation or quarantine orders. The last time a large-scale federal isolation order was enforced was during the “Spanish Flu” pandemic of 1918-1919.

The CDC’s position is largely in accord with that of Professor John Yoo. Professor Yoo argued in an article in the National Review that the text of the Constitution allows Congress to regulate activities that have a substantial effect on international commerce with foreign nations and interstate commerce among the several States.  The Federal Government may also regulate purely intrastate commerce if that activity affects the national market. However, the Supreme Court recognizes that public health and safety are some of the most significant uses of state power. Therefore, the power to open up state institutions should rest solely with the State government as the limits of Congressional power were intentionally drawn by the Framers to preserve and respect this federalism dynamic.

Professor Michael Dorf presents a contrasting view of federal power in an article in Verdict. He suggests that the structure of the American government, while great for enforcing liberty, may present unnecessary obstacles in the face of an emergency. The respect for State autonomy allows for the emergence of inconsistent policies among the several States. This could have a negative impact on the national goal of curtailing the coronavirus. Professor Dorf argues that Congress should enforce a national lockdown pursuant to its powers under the Supremacy and Commerce Clauses of the Constitution. While Congress or the President can’t order state and local officials to follow federal law, Professor Dorf believes state governments will voluntarily do so. To prevent the courts from finding a national lockdown unconstitutional, Professor Dorf further suggests that Congress should take judges out of the equation by suspending the writ of habeas corpus. While this seems like an extreme measure, it would empower the Federal Government to take primary responsibility for handling the response to the coronavirus, with little to no state intrusion.

Oregon District Court Denies Motion to Block Federal Police from Arresting Protesters

Rosenblum v. John Does 1-10, No. 3:20-cv-01161-MO (D. Or. July 24, 2020).

Written by: Douglas Post

After nearly two months of protests in Portland, Oregon, federal police were deployed to the Mark O. Hatfield Federal Courthouse to prevent property destruction of the justice complex. Not long after, videos surfaced on social media that depicted federal officers grabbing protesters off the streets and pulling them into unmarked vans. 

In response to these reports, Oregon Attorney General Ellen Rosenblum filed a lawsuit against the U.S. Department of Homeland Security and various other federal actors. The complaint alleged that the federal government’s seizures of Oregon citizens constituted a violation of the individuals’ Fourth Amendment rights, Fifth Amendment due process rights, and constituted a chilling of First Amendment rights by discouraging others from protesting. The State of Oregon pleaded for a temporary restraining order that would  require federal officers to identify themselves and their agency before detaining any person and to explain to the person that he or she is being arrested or detained, and enjoining the federal police from arresting protesters without probable cause.

On July 24th, the United States District Court for the District of Oregon denied the State’s motion for a temporary restraining order. The court held that it could not resolve the constitutional issues raised because the Attorney General and the State of Oregon lacked standing to sue in this case. The plaintiffs claimed that under the doctrine of Parens Patriae, Oregon had standing to sue on behalf of its citizens. In order to assert valid standing under the Parens doctrine, Oregon was required to prove that its citizens suffered an injury to their legally protected rights; that there was a causal connection between the injury and the offending conduct; that the injury could be redressed by a favorable decision; that the state is more than just a “nominal party” in the lawsuit; and that the state expresses a “quasi-sovereign” interest that has been violated by federal actions.

The court found that the State failed to prove that the unlawful seizures would likely continue without a court order. “Past exposure to harmful or illegal conduct does not necessarily confer standing to seek injunctive relief if the plaintiff does not continue to suffer adverse effects …. Injunctive relief requires more than showing that a plaintiff has been harmed; it requires a showing that she will likely be harmed again.” The State presented the court with only one example of a protester being arrested without probable cause, and one example of an unreasonable seizure of a protester. With such limited evidence, the State failed to show that unlawful arrests were likely to continue. Additionally, the court held that the State failed to prove that the remedies it was seeking would adequately prevent a chilling of speech. Even with the temporary restraining order, people may still fear being arrested for protesting. “The State has not met its burden to show that it has standing to seek injunctive relief,” the judge announced in his conclusion, “and I find that it does not have that standing. The State’s motion is therefore denied, as a temporary restraining order is unavailable on the record presented here.”