Federal vs. State COVID-19 Authority

J. Bradley Klepper
Attorney at Law

Early in the pandemic, most states issued some type of “stay at home” or “shelter in place” orders prohibiting travel and closing all businesses but those deemed essential. In essence, this shut down retail establishments, bars and restaurants (which impacted me greatly), movie theaters, gyms (which had virtually no impact on me), and anyplace groups of people would gather.

It was inconvenient but most of us made it through unscathed and with 20 years-worth of toilet paper stockpiled somewhere. The restrictions were eventually lifted and people began to get out again. Nothing like it used to be mind you, but people were getting out of the house.

Well, it appears we may be heading that way again.

As Covid-19 continues to surge across the country in record-breaking numbers we may be looking at another shut-down of sorts. In fact, some governors have already taken steps to limit business hours and prohibit travel. Again.

But is that enough? Is it the right thing to do? Should the federal government get involved? More importantly, CAN the federal government get involved or issue a nationwide mandate? That is a good question.

Many argue that the federal government’s ability to intervene in health crisis arises through the Commerce Clause of the Constitution. The Commerce Clause gives Congress the exclusive authority to regulate interstate and foreign commerce. This includes the authority to quarantine and impose other steps to prevent the spread of disease from foreign countries and between states. Also, the Public Health Service Act authorizes the Secretary of Health and Human Services to lead federal public health and medical responses arising from public health emergencies.

In contrast, the State’s ability to control the spread of dangerous diseases within their jurisdictions comes from the 10th Amendment to the U.S. Constitution and U.S. Supreme Court cases going almost 200 years. The 10th Amendment reserves to the States all powers not specifically given to the federal government. As a result, the States have the authority to issue quarantines, create business restrictions and take other emergency actions.

In fact, the Supreme Court unanimously held in Gibbons v. Ogden (1824) that the power to quarantine and take other actions in the name of public health belonged largely to the States. Justice Marshall cited the 10th Amendment in saying that the police powers are largely reserved to the stated. He further explained that these powers include the ability to impose isolation and quartile conditions.

In other words, the federal government has control over commerce with foreign nations and between the States while the States have control within their borders. Arguably, the Federal government could impose restrictions within the states under the Commerce Clause but this has never been attempted. Not even during the 1918 Spanish Flu pandemic which killed 40 million worldwide and 675,000 Americans.

While the current administration has downplayed the need for a federal mandate the next administration may take a different position. However, keep in mind that while Governors’ have broad powers to invoke restrictions and quarantines within their borders the power of the President is significantly more limited by law and Supreme Court precedent.

As a result, I believe that any attempt at a centralized federal response would result be unprecedented and would likely be challenged in court on constitutional grounds.

So what will happen? I believe “recommendations” may be issued via Executive Order but no centralized response will be forth coming. Instead, it will be up to the individual states to best determine how to handle the current health crisis.

In the meantime, I suggest we all pray for a vaccine to be released and readily available as soon as possible. I mean, I really need to get back to the gym.

Brad Klepper, Esq. is President of Interstate Trucker Ltd., a law firm entirely dedicated to legal defense of the nation's commercial drivers. Interstate Trucker represents truck drivers throughout the forty-eight (48) states on both moving and non-moving violations. Brad is also Executive Vice President & General Counsel of Drivers Legal Plan, which allows member drivers access to his firm’s services at greatly discounted rates. Brad spent almost a decade with the largest law firm in Oklahoma where his practice included extensive experience in transactional law, business defense litigation, and intellectual property. In addition, Brad is a licensed architect and serves as General Counsel to the Oklahoma Board of Architects, Landscape Architects and Interior Designers. Brad has dedicated much of his time to DataQs challenges, which are challenges posed to the FMCSA for CSA incidents, to examine data and reports filed by law enforcement.

800-333-DRIVE (3748) or www.interstatetrucker.com and www.driverslegalplan.com