The COVID-19 pandemic has been a monumental challenge for governments around the world. This deadly virus has forced them to quickly make crucial decisions about how to best protect the health of the population. In the United States, this struggle has been fought on two fronts: the federal and the state governments. From the time of the first documented case of community spread in the US in February 2020, to the beginning of enforced social distancing and stay-at-home orders to the public, the United States has struggled to facilitate a coherent plan of action between the federal and state governments. One of the main sources of conflict between pandemic response plans is finding the balance between adequately protecting the health of the public, while also maintaining economic stability and civil liberties.
For the public, the absence of a unilateral federal plan to respond to this crisis has led to mass confusion over who has the power to enforce COVID-19 guidelines. Claims from President Donald Trump and state governors often contradict one another, and each state is pursuing individual guidelines. For example, while California has continued to extend their stay-at-home orders, Florida has allowed restaurants and other businesses to reopen at 25 per cent capacity.
This confusion was exacerbated on 13 April 2020, during a live press conference when President Trump made the claim that, “when somebody is the President of the United States, the authority is total, and that’s the way it’s going to be,” in regards to different decisions being made over the COVID-19 reaction plan. This striking comment raised many questions over the legitimacy of state governments to enforce lockdowns and social distancing requirements.
While the federal government does hold many specific powers over state governments, according to the United States Constitution’s Tenth Amendment: “the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people”. This amendment, originally added before the ratification of the Constitution, serves to ensure that states’ rights will not be superseded by the federal government. In the United States, the checks and balance system is crucial to how the government operates, as it keeps the three branches of government (executive, legislative, and judicial) from gaining more power than one another. In short, the Tenth Amendment functions to keep a balance of power between the states and national government.
This clause has been challenged and invoked many times during the course of US history and has previously been applied to decisions over public health. Notably, this occurred in the United States Supreme Court case of Jacobsen, v. Commonwealth of Massachusetts concerning compulsory vaccination laws where the court decided in favour of the states’ rights under the Tenth Amendment to enforce “reasonable regulations established directly by legislative enactment as will protect the public health and the public safety”. This decision established a precedent to allow police powers of the states to extend to enforcing healthcare regulations.
Police powers under the Tenth Amendment give states the ability to establish and enforce laws and regulations that they see fit to protect the welfare, safety, and health of the public so long as it is done so on a rational basis. Therefore, jurisprudence provides that these powers grant govenors the final say over their individual states’ plans to react towards public health emergencies such as the current COVID-19 pandemic. These state powers are interpreted to include the enforcement of stay-at-home orders and mandatory social distancing protocols.
In turn, regardless of the current international emergency, President Trump’s claim to having complete control over the actions of the states is entirely unfounded. This means that individual state governors reserve the right to either enforce or lift social distancing guidelines at their own discretion and the President currently has no authority to completely override these decisions.
Some governors have publicly stated they would not follow President Trump’s lead on this situation and will instead continue to pursue a response effort they feel is most appropriate. One particularly vocal governor has been the Governor of New York State Andrew Cuomo. While Governor Cuomo and President Trump have been able to cooperate over specific aspects of their response plans, such as loosening restrictions on eligibility for COVID-19 testing and building field hospitals, they have vastly different ideas about the approach to reopening New York. Governor Cuomo, who publicly challenged President Trump’s comment regarding his “total authority,” remains firm in his belief that the state cannot safely be reopened and restored to normal activity yet, and has kept most regions of the state under a lockdown. So, while President Trump may disagree with him on this front, the police powers granted to Governor Cuomo through the Tenth Amendment mean that the President cannot interfere in the enforcement of a COVID-19 response plan.
As the United States continues to battle the virus they will be faced with monumental challenges. These challenges will likely continue to cause tension between state governors and the President. Ultimately, states will continue to have the final say over enforced social distancing and lockdowns. While this power may not have been added to the US Constitution with a global pandemic in mind, the Tenth Amendment will continue to protect the states’ rights to act in a manner that they see fit to ensure the overall welfare and health of their people.