Experts See Overreach by Governors Responding to Pandemic

WASHINGTON (CN) — As the United States responds to the Covid-19 outbreak with wartime measures, constitutional experts on Wednesday traced boundaries on the authority governors wield to fight the virus. 

“All 50 states have declared public health emergencies which unlocked federal funds,” said Meryl Chertoff, executive director of the Georgetown Project on State and Local Government Policy and Law. “In a scramble to prevent community transmissions, states have enacted some draconian restrictions.”

Texas Gov. Greg Abbott shows an executive order during a coronavirus news conference on March 24, 2020. (Nick Wagner/Austin American-Statesman via AP)

Midway through what one Trump administration official called “peak death week,” the U.S. confirmed 419,975 cases by Wednesday afternoon, as the death toll surged to 14,262.

During a virtual discussion Wednesday hosted by Georgetown Law, Chertoff called the novel coronavirus outbreak one of the biggest tests the nation has ever seen in the relationship between federal, state and local authorities.

The professor pointed to the complete lockdown of an entire community in New Rochelle, New York, and Texas Governor Gregg Abbot ordering roadblocks on the border with Louisiana as alarming examples of overreaches of power.  

Georgetown Law professor Lawrence Gostin, who specializes in global health, said the states are fully empowered to issue stay-at-home orders and close businesses but cannot restrict interstate travel. 

“You can’t set up a border with an adjoining state and not let people into your state or out of your state,” Gostin said. “That’s very clear because Congress under the Constitution has got the exclusive power to regulate interstate commerce including travel between states.”

Whether President Donald Trump wields the same power to close state borders remains unclear, the professor added, explaining many constitutional lawyers interpret the Public Health Service Act of 1944 to not bestow that same power given to Congress to the executive.

The expert panel agreed that governors retain exclusive responsibility for the step-by-step mitigation procedures within states borders. 

“Certainly the president has no power to go into a state and force the governor to either do a lockdown, open up a lockdown, go back to business, or not go back to business,” Gostin said. 

Esha Bhandari, staff attorney with the American Civil Liberties Union, said that there is also no justification for treating state residents differently from nonresidents who cross borders when leaving a Covid-19 hotspot. 

“For example, having a checkpoint that only pulls aside people coming from out of state, with out-of-state plates, that presents major legal concerns,” Bhandari said. “It’s also just irrational as a public health measure because there’s no reason to believe that people with in-state plates were less likely to have acquired the coronavirus out of state.” 

The ACLU attorney raised concern that heavy enforcement of public health measures in over-policed communities, coupled with a lack of citations and arrests in wealthier neighborhoods, could undermine trust in the necessity of stay-at-home orders and other state directives to mitigate the spread of the virus. 

“But also arresting people should really only ever be a last resort,” Bhandari said, “because it is completely counterproductive to put people in facilities that are themselves dangerous in the name of protecting public health.” 

The ACLU has filed 15 lawsuits seeking the release of medically vulnerable prisoners and those who can be effectively placed in home detention during the Covid-19 outbreak.

Pointing to the Cook County jail in Chicago emerging as the largest-known source of infection in the country, Bhandari said detention centers remain “potential tinder boxes” for spreading Covid-19 not only between prisoners but out into the surrounding communities. 

A former top Department of Homeland Security official under the Obama administration, Juliette Kayyem, now a senior lecturer at the Harvard Kennedy School, said that until a vaccine becomes available it will be critically important to safeguard personal freedoms. 

“But remember vaccines don’t come 360 million doses at a time,” Kayyem said, raising the question of how governors will distribute vaccines across states. 

A government watchdog report this week confirmed alarms raised by hospitals across the country that health care workers are running dangerously short on critical supplies, including personal protective equipment like masks but also essentials like disinfectant and thermometers.

With governors engaged in bidding wars to acquire the necessary medical supplies, Kayyem said that President Trump, by not acting more on the Defense Production Act, has failed to take advantage not only of the ability to redirect manufacturing but also a secondary part of the statute that sets fair market values. 

“There is a lot of stuff in the market now. It’s just a seller’s market and that’s what killing the states,” Kayyem said. 

With the earliest a vaccine is expected to hit the market still over a year out, the experts turned to the question of the upcoming presidential election, agreeing across the board that shifting to mail-in ballots is a necessary move.  

“How could we possibly hold an election, consistent with the Constitution, that requires somebody to make a choice between their health and potentially their life?” said Gostin with Georgetown Law. 

The professor agreed with ACLU attorney Bhandari that the federal government will need to step in to help state authorities make the change from on-site polling places to national voting by mail. 

“It’s not only a legal issue, it’s a logistical hurdle,” Bhandari said. “Not every state is set up for this.”

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