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Federalism DA
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Blake and Arianina 20 [David Blake is a partner and chairs the state attorneys general practice at Squire Patton Boggs LLP. Kristina Arianina is a senior associate at the firm. Potential Federal Vs. State Conflicts Due To COVID-19. April 9, 2020. https://www.law360.com/articles/1262048/potential-federal-vs-state-conflicts-due-to-covid-19]
States also have the ability to use their police powers to enforce any declarations during emergencies. For example, state police powers allow them to put in place isolation and quarantine laws to prevent or stop the spread of disease, even over the objections of those affected and despite the inherent loss of liberty by those impacted. Such orders must be temporary and well justified but they are very powerful when used. In accordance with these powers, states’ shelter-in-place orders have forced the closure of an untold number of nonessential businesses and restricted the freedom of movement of their citizens except for essential needs such as limited visits to grocery stores or the doctor’s office. Over 40 states had some variation of a shelter-in-place order, covering 97% of Americans. It is now a crime to leave your home unless the government has decreed it is OK. The federal government also has surprisingly powerful tools at its disposal during extraordinary health-related emergencies. For example, the basis for the federal government’s authority to prescribe a quarantine and other health measures is based on the commerce clause, which gives Congress exclusive authority to regulate interstate and foreign commerce. The Public Health Service Act gives the U.S. Department of Health and Human Services the authority to impose quarantines to prevent the spread of communicable diseases “from foreign countries into the United States and within the United States and its territories/possessions.” The authority for carrying out these measures has been delegated to the U.S. Centers for Disease Control and Prevention. Through the CDC, the federal government has the authority to “take measures to prevent the entry and spread of communicable diseases from foreign countries into the United States and between states.” However, the HHS and CDC rarely use the quarantine powers and have traditionally deferred to state and local health authorities. So has, so far, the president. The Federal Government Is Not King On March 16, President Trump published "Coronavirus Guidelines for America—15 days to slow the spread,” recommending that Americans “[l]isten to and follow the directions of your state and local authorities.” On March 26, when many states had shelter-in-place orders extending into May and June, President Trump sent a letter to governors informing them that his administration was working on the new guidelines that would reopen parts of the stalled U.S. economy as soon as possible. Current federal social distancing guidelines expire April 30. So what would happen if President Trump were to relax the federal guidelines yet governors determine stay-at-home orders remain indispensable to manage the health crisis in their states? The preemption doctrine is legally complex and normally the supremacy clause of the U.S. Constitution would suggest federal law is “the supreme law of the land.” But the application of the following principles to the potential conflict between states and the federal government in the context of COVID-19 pandemic — where the states have adopted stricter measures than the federal government to preserve health and safety — most likely would result in state policies trumping Trump’s efforts to open the country for business before governors agree. First, when a federal statute contains an express preemption clause, as long as the statute is constitutional, it forecloses a potential state argument against preemption.[1] In other words, if a federal statute says it preempts state laws on the same subject, it mostly likely does. The PHS Act, however, does not contain an express preemption clause. In fact, it could be read as prohibiting the abrogation of a state or local quarantine as it states: “Nothing in this section … may be construed as superseding any provision under State law … except to the extent that such a provision conflicts with an exercise of Federal authority under this section.” The federal PHS power here would only work to create more restrictive policies, not eviscerate state orders in the name of the economy. The federal wrench, at least in this situation, only ratchets in the wrong direction of where the president seems to want to go. Second, courts are likely to find against the federal preemption of state exercise of police powers by federal law in the areas traditionally reserved for the states, such as public health, safety and welfare. In these cases, the presumption against preemption may apply.[2] Quarantines historically fall within the states’ police power. The U.S. Supreme Court recognized this as early as in 1824[3] and again in 1902: “from an early day the power of the States to enact and enforce quarantine laws for the safety and the protection of the health of their inhabitants … is beyond question.”[4]

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