This paper tied for first place in The Independent Review’s 2024 Student Essay Contest.

After reviewing the governmental response to the COVID-19 pandemic and the history of court rulings on the state’s police powers, it is clear that administrative agencies often go against the foundations of the republic. Limits need to be made regarding their authority.

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The COVID-19 pandemic saw a surge in discussions of public health. Both the federal government and states passed legislation in an effort to combat the spread of illness and “flatten the curve” (Williams 2020). According to health care professionals, social distancing would slow the spread of disease and protect high-risk individuals that had a higher likelihood of contracting the illness or passing from the disease. In addition to the impact on health care, the legal ramifications of the pandemic were unprecedented and restricted the daily life activities of all Americans.

Previous Supreme Court decisions gave states the ability to regulate activities of the people under a public health emergency. The 1905 Jacobson v. Massachusetts decision remains the leading case on the question of police power usage within a public health context. Jacobson decided the validity of a provision of Massachusetts, allowing the local board of health to require and enforce a smallpox vaccination mandate. Those who refused to comply were subject to a fine. Flash forward to 2020, and the Constitution encounters its biggest public health crisis to date outside of abortion, the COVID-19 pandemic. The federal government relied on administrative agencies to act upon medical expertise in executing mandates and restrictions. States utilized their power to regulate “public safety, public health, morality, peace and quiet, and law and order” (Wex 2020). These powers are known as the police powers. Police powers are the powers of the state to ensure the general well-being of its population.

The police powers were defined in William Blackstone’s Commentaries on the Laws of England. Blackstone asserts that police powers allow for the “due regulation and domestic order of the kingdom: whereby the individuals of the state, like members of a well-governed family, are bound to conform their general behavior to the rules of propriety, good neighborhood, and good manners; and to be decent, industrious, and inoffensive in their respective stations” (Blackstone and Tucker 1803, bk. 4, chap. 13, V). He later states that each state is responsible for the regulation of its own individual internal police, implying states have a big say in the public order and laws passed to maintain it. The constitutional design of the structure pertaining to the police powers implicates the states as “laboratories of democracy,” as Louis Brandeis asserts in New State Ice Co. v. Liebmann (285 U.S. 262 [1932]). In this line of reasoning, the states should have a say in the regulations of the policies of the municipalities and the states. Even Blackstone himself recognizes that the power of the police is broad. It is easier to enumerate what police powers do not encompass as opposed to what they do include. In discussions of the Constitution, the terms police and internal police were included eight times regarding the domestic powers of state governments. The framers’ repeated usage of the term police indicates a profound understanding of the framers under Blackstone’s meaning of the word police (Stark 2009, 169).

The framers, inspired heavily by Blackstone, clearly formed a system of federalism under the idea that the states would closely govern the people in their jurisdictions and maintain police powers, meaning the ability to dictate the health, safety, and morality of their people. They settled on the idea of dual sovereignty, or having two governments as sovereign. The constitutional structure of government was intended to restrict federal power, allowing the states to know their people and the legislation they would wish to pass. The federal government has limited powers, which were surrendered by the states (Stark, 170). James Madison and Alexander Hamilton, in The Federalist Papers, attempt to reconcile concerns of the Anti-Federalists in an effort to rally support for the ratification of the Constitution. As stated by Madison in Federalist No. 45, “the powers delegated by the proposed Constitution are few and defined,” while the powers of the states are numerous: the ordinary measures of everyday lives, including the properties of the people and the internal order, prosperity, and improvement of the state (Stark, 171).

The majority consensus of the people is that the government has a responsibility to protect its people. Under the federal system of government, the question is often whether the states or national government should be the one to act to protect the people (Gostin and Wiley 2016). Given the police powers, one may ask to what degree does the federal government have a say in the conversation. Federalism presents a challenge of balance in all areas of governance, but this is especially seen in public health discussions. The federal and state governments have a shared responsibility to act in a coordinated effort, as outlined by the Constitution. The purpose of the Constitution is threefold: to allocate power between the federal and state governments, to divide power among the three branches, and to limit government power to protect individual liberties (Gostin and Wiley, 74). States and localities know their people and the circumstances of their issues. Simply put, they are closer to the problems relating to public health. They also tend to be favored in solving more complex problems, allowing for innovation in public policy and the way people tend to interact with government (75–76). The Constitution recognizes the role of the states, saying that any powers not delegated to the national government or barred for the states are reserved to the states.

Though it may appear that the states have the full authority to govern the health of the people, the national government still has a stake in the conversation. Through the supremacy clause, the federal government has the ability to substitute or preempt state public health regulation (77). The power of the national government to override this decision is extensive and is fundamental in explaining the overarching reach of federal power in situations of public health. Federal law is the supreme law of the land, as noted in Article VI of the Constitution. The opinion of McCulloch v. Maryland (17 U.S. 316), authored by the Marshall court in 1819, showcases the struggle between the supremacy clause and state power. In 1818, the Maryland legislature passed a law stating that all banks or branches of banks that were not chartered by the state would be subject to a 2 percent tax levied on all notes issued or pay an annual fee of $15,000. This also included a $500 penalty for each specific violation. The Maryland law would tax even federal banks. The question regarding the legitimacy of the Maryland law was brought to the court (Rossum and Tar 2010). The first question addressed was regarding the legitimacy of the federal government to establish a bank. The court determined that the federal government did have authority to establish a bank, given it was necessary and proper of the government to establish a bank for purposes of taxing and raising revenue, under this notion of implied power. The national bank and the federal powers to run the bank preempt any state efforts to tax the national bank. Jacobson v. Massachusetts (197 U.S. 11) was decided in 1905 and affirmed the local government’s authority to restrain individual liberties protected by the Fourteenth Amendment in cases where public health emergencies were present and the state held an interest in protecting the community.

Some argue that the legislature does not have the background knowledge to make complex decisions regarding public health, given they typically do not have a background in the field. Executive agencies, under the executive branch, have a far-reaching authority in public health policy. However, they were devised to work toward public health, given the agency officials are usually experts and have resources to develop policy. When examining the purpose of public health policy, one also needs to examine the purpose of the Constitution. One purpose of the Constitution is to restrain the government from interfering with or restraining the liberties of the people, placing a limit on governmental interference and ensuring accountability (Gostin and Wiley, 80–82). Nevertheless, separation of powers ensures that each branch of government possesses authorities that are unique to it. The legislature, for example, is given the responsibility to create laws and allocate resources to aid in executing the policy. The administrative agencies do not have any defined limits or powers under the Constitution.

Also monumental in expanding the scope of the federal government regarding public health instances is Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. (467 U.S. 837 [1984]). This decision was monumental in determining the expanse of administrative law, specifically in governing public health. The decision allows administrative agencies to interpret laws passed by Congress, allowing administrative agencies to decide a reasonable interpretation of statute when the power to execute the law is delegated to the agency by Congress. Although only interpretations that include a legal proceeding qualify for a Chevron deference, the administrative agency is largely unchecked by federal law, enabling the administrative agencies to make independent decisions absent constitutional checks and balances, threatening the federal system of government that the framers intended.[1]

The Centers for Disease Control and Prevention, one of these agencies, was of high authority during the COVID-19 pandemic. The agency also has the authority to impose isolation and quarantine for communicable disease, including but not limited to tuberculosis, measles, and flu that can cause a pandemic (CDC 2021). Isolation and quarantine are also police power functions, and the states have the authority to mandate isolation and quarantine. Despite the federal government’s wide usage of power in the COVID-19 pandemic, there is only one constitutional power granting the federal government this power—the commerce clause (CDC 2021).

The commerce clause was significantly expanded during the New Deal era and has been historically utilized to hinder a state’s autonomy. Under the Agricultural Adjustment Act of 1938, Congress placed a restriction on the national production of wheat. Roscoe Filburn, a small Ohio farmer, argued that his excess production of wheat had no impact on interstate commerce, given that the excess wheat produced was for his own personal use and he had no intention of selling the excess wheat. In a unanimous decision, however, the court upheld the Agricultural Adjustment Act. The court found that the commerce clause gives Congress power to regulate prices in the industry and the law is rationally related to the goal of Congress to regulate the prices at the interstate level. Even though the growth of the wheat was occurring within one state, the court argued that in the aggregate, the personal production of wheat would have a substantial effect on interstate commerce. Though Filburn’s effect on the production of wheat was minuscule relative to wheat production nationwide, if others did the same as Filburn and grew their own wheat, the court argued, this would have a substantial effect on the interstate market. After the New Deal, police power lost prominence in constitutional law, and express and implied federal preemption of state laws became increasingly common (Parmet 2019). However, in National Federation of Independent Business v. Sebelius (567 U.S. 519), Chief Justice John Roberts, in his 2012 opinion, states that Congress exceeds its power under the commerce clause, and the participation of the states in the Affordable Care Act individual mandate fell under the states to decide (Parmet, 228).

Heading into the COVID-19 pandemic, Jacobson was the leading case on the issue regarding state authority and public health (Steiner-Dillon and Ryan 2020). The limits on state authority were left very ambiguous in the case. Additionally, no provision of the Bill of Rights had yet been incorporated through the Fourteenth Amendment’s due process clause against the states. States had more power to encroach on liberties and freedoms in Jacobson than they do now. In the Jacobson case, the city of Boston endured a smallpox outbreak, leading to 1,596 cases and a total of 270 deaths between the years 1901 and 1903. The outbreak ignited discussion of smallpox immunizations. Before the Jacobson decision, courts usually executed judicial deference to public health agencies. The courts typically found school vaccination requirements constitutional. However, the courts mainly decided these vaccination cases on an administrative law basis rather than a constitutional law basis. This opened the door wide for the overreach of administrative power today. Courts restricted statutory restrictions on vaccine mandates by requiring the state agencies to indicate a state of emergency. The states required vaccination only indirectly, through penalties for those that weren’t vaccinated. For example, they prohibited school admission and required quarantines (Gostin 2005).

In looking past Jacobson, under a system of checks and balances and a federal division, it is curious to examine abuses of power under the open-endedness of state police power as determined in Jacobson. Especially since the decision occurred before full incorporation of the Bill of Rights to the states, states more easily violated the liberties of their people. In 1924, the Virginia General Assembly enacted a law allowing forced sterilization of the feebleminded or socially inadequate. This law outlines a legal process for the sterilization process, including assigning guardians, a hearing process, and court appeals. Dr. Albert Priddy, superintendent of the State Colony for Epileptics and Feebleminded, utilized the Buck family in a test case, challenging the Virginia statute to try to get the law upheld by the highest court, the Supreme Court. Irving Whitehead, who was hired to represent Carrie Buck, argued before the court that the Virginia law violated the due process clause of the Fourteenth Amendment. Aubrey Strode, representing the Colony, argued that Buck had in fact been given due process, and that she had had fair legal proceedings. Justice Oliver Wendell Holmes delivered the opinion upholding the sterilization law. Holmes also argued that the statute protects society from being overwhelmed with incompetence. Additionally, the argument was made that sterilizing the mentally incompetent would reduce the cost of welfare expenses for the state.[2]

The Supreme Court of the United States upheld a Virginia statute in 1927 allowing the state to sterilize women they deemed to be mentally incompetent. The law served as a model statute for similar laws in thirty other U.S. states. The Bell decision was issued during the eugenics movement. Given the new scientific theories regarding heredity and reproduction, experts of the eugenics movement gathered data and called for the sterilization of those deemed to be “feebleminded” (Brannen et al. 2011). Decisions regarding the care of those deemed to be “mentally retarded” became subject to government regulation. Laws were passed at the state level, making choices for those feebleminded individuals, and state asylums housing these individuals began sterilizing their patients.

A lot has changed in constitutional law since the Jacobson and Bell decisions. First, the court did not have different levels of scrutiny. Second, the Bill of Rights was not fully incorporated to the states. The nation has also grown as a world power and rapid globalization has increased the reliance of the United States on other nations, showcasing the importance of quickly addressing public health emergencies (Steiner-Dillon and Ryan 2020). These changes in constitutional law impact pertinent Supreme Court cases pertaining to the COVID-19 pandemic. In an application for injunctive relief, the Roman Catholic diocese of Brooklyn and Agudath Israel of America sought relief from New York governor Andrew Cuomo’s executive order 20A90. The court responded in a per curiam, with concurring and dissenting opinions.[3] The executive order issued by the governor placed incredibly severe restrictions on attendance at religious services for religious organizations in the “red” or “orange” zones of the state, indicating widespread presence of disease. In the red zones, only ten people were permitted to attend religious services, and in the orange zones, only twenty-five people were permitted to attend. In the red zones of the state, synagogues and churches were restricted to capacity limits, while business categorized as essential had no limits on the coming and going of patrons, and even nonessential business were permitted to decide the number of people they allowed to enter in orange zones. The governor claimed that the disease spread was worse in houses of worship as opposed to other public places like factories and schools. According to the per curiam decision, there was a visible disproportionate regulation against religious institutions versus business regulations. The restrictions were determined to not be neutral and, therefore, strict scrutiny must be applied to them. The regulations must be narrowly tailored to a compelling state interest. The court ruled that the enforcement of the governor’s restrictions on the religious services of the applicants be enjoined.

It is in the concurring and dissenting opinions that the justices illustrate a wide spectrum of beliefs on the state of federalism, the issue of police powers in public health emergencies, and the role of experts in the pandemic and who should be the decider on what is good public health policy. Justice Neil Gorsuch begins his concurrence with a bang, stating that any restriction to the First Amendment in crisis is unconstitutional. He also states that those that are exercising religious freedom should not be forced to follow tighter restrictions relative to more secular activities. If anything, the statute’s relation to the First Amendment, as protected under the Bill of Rights as a fundamental liberty, should provide a deeper protection under the free exercise clause. Gorsuch also goes forward to argue that it is incongruent to associate the reasoning of Jacobson in upholding the governor’s mandate, as Jacobson does not lead to the infringement of fundamental liberties protected by the Bill of Rights. Even though it was not the standard at the time, Jacobson “didn’t seek to depart from normal legal rules during a pandemic and it supplies no precedent for doing so.”[4]

Justice Brett Kavanaugh concurs, claiming that the state needs to justify why houses of worship are not included in the favored class. Kavanaugh recognizes that the states should be held accountable for the safety and health of the people. He also recognizes the crisis of the pandemic and the monumental impacts on the American population. However, judicial deference, that is, allowing an executive body to determine the meaning of a law, according to Kavanaugh, does not mean that the judiciary completely abdicates its responsibility, especially when questions of religious discrimination, racial discrimination, and free speech are raised.[5] Justice Stephen Breyer wrote a dissenting opinion, stating that the court should allow Cuomo the discretion to make choices considering the health and safety of the people. The Constitution “entrusts the safety and health of the people to the politically accountable officials of the states.”[6]

In the South Bay case, Gorsuch argues, “It has never been enough for the state to insist on deference” or “demand that individual rights give way to collective interest.”[7] The California law also assumes that social distancing is not possible in worship services, as they include the mixing of lots of different households in one space, are sustained in length, and include singing. California, however, was not able to explain the reasoning behind these intense restrictions on religious services. Gorsuch also argues here that religious organizations, by nature of the California law, are subject to more harsh regulations, not applied to the businesses that the state considers essential. The dissenters, their opinion written by Justice Elena Kagan, state that the state is being neutral in its execution of the regulations regarding large social gatherings. Religious organizations are treated like the other parties in the state. Under the court’s injunction, Breyer argues the court must treat religious services, which by nature include the social gatherings of groups, the same as secular activities that pose a lesser danger to the spread of disease. In the beginning of the opinion, Breyer states that the justices of the court are not scientists. Therefore, they should defer the judgment to the states. However, in the discussion of the facts of the injunction relief, the state makes no substantive scientific claim that the restrictions on religious services would reduce the spread of disease. The state of California assumes the conditions of the religious services and assigns to them an arbitrary marker of a high-risk activity without any justifiable scientific reason or statistic supporting its claim, failing the test of strict scrutiny under the Constitution.

Whatever the stance on the issue of state power in relation to public health emergencies, many agree that the Jacobson v. Massachusetts decision needs a Caseylike revision. Planned Parenthood v. Casey (505 U.S. 833 [1992]) established the holding of Roe v. Wade (410 U.S. 113 [1973]), which has since been overturned by Dobbs v. Jackson Women’s Health Organization (597 U.S. 215 [2022]). Scholars James Steiner-Dillon and Elisabeth Ryan (2020) propose a revision of Jacobson, creating a two-step model that would preserve the case’s holding while also clarifying its shortcomings. The first step of the model that is proposed is to require the state to enumerate a clear public health emergency. This would require the state to clearly present evidence articulating how state action would curb the public health emergency. The threshold is relatively low, however, and is reflected in the plausibility standard. The state would be entitled to a “Jacobson deference,” applying a single standard of review of all exercise of state police power under a public health emergency. A court applying the Jacobson deference should uphold the state action, unless the presence of one of seven factors establishes that the state was exceeding beyond its scope of legitimate authority (Steiner-Dillon and Ryan, 4). States need to consider the danger that the particular order expects to lessen, the public risks and benefits of a protected activity, the danger to affected individuals that the order tries to lessen, the degree to which the order infringes on the exercise of a fundamental right, the duration of the order and how long it will impede on a fundamental right, whether or not the mandate includes a constitutional activity, and the degree to which the order impacts quasi-suspect classes (26).

Both the states and the national government have a vested interest in protecting the health of citizens. States and the federal government share “a system of overlapping and shared responsibility among the federal, state, and local governments” (26–27). Each section of government should play a role in protecting the health of the people. The ultimate question is how much of the conversation each of these components makes up. Under the Tenth Amendment, the Constitution was ratified under the assumption that the states would have plenary power, which is another way of saying that the states have all the authority needed to govern. The states have two specific powers, the parens patriae power to protect the rights of minors or those that are incapacitated, and the police powers. The federal system as established in the Constitution grants the states the ultimate authority to safeguard community welfare (Gostin and Wiley, 76). The federal government also has the right to preempt or supersede state public health regulation. The usage of the supremacy clause grants the federal government an extensive power for Congress to “override state public health safeguards” (77).

Another statute in question during the pandemic was the CDC’s eviction moratorium. The federal residential eviction moratorium exceeds the federal government’s constitutional authority. Congress passed the CARES Act, putting a sixmonth moratorium on certain residential evictions. The moratorium expired in July 2020, and then was renewed by the CDC. The CDC moratorium said that landlords that evicted tenants could face up to one year in prison or a fine up to $250,000. The CDC argued that the moratorium would slow the spread of COVID-19 (77). Though technically Congress can delegate the federal government’s wide exercise of power to these agencies under the delegation doctrine, the federal government’s use of the moratorium here is unprecedented (Seamon 2021).

Though executive administrative agencies are almost always well intentioned in their creation, they have far-reaching authority on governing public health matters. Employees of these agencies typically possess significant expertise and have extensive resources to discover effective public health policy. Although the administrative agency employees possess expertise and have resources to determine health care policy, they are not elected officials, meaning they are not directly accountable to the public. Governing by administrative agencies forces the people of a state or municipality into a position where they are unable to hold the government accountable for its actions. Similar to the general public, the judicial branch also lacks expertise in the science of public health. This makes it difficult for the judicial branch to be easily swayed by expert opinion (Seamon, 21).

The theory of federalism has different perspectives in academia. First, states are autonomous policymakers, existing outside the federal system (Gostin and Wiley 2016, 81). Another version of federalism is the condition that the states are supportive servants of the federal government’s underlying goal and mission. Uncooperative federalism is the resistance of the states to follow federal statutes. States challenge federal law by refusing to execute the portions of federal legislation that they deem unconstitutional. However, if states are able to challenge national authority, then they exist within a continual discussion of policy. Although disagreements create friction between the states and the federal government, there are “political safeguards of federalism” (Bulman-Pozen and Gerken 2009, 1284). In New York v. United States (505 U.S. 144 [1992]), the court held that the federal government legislation cannot compel states to comply with a federal regulatory program (1295–96).

The COVID-19 pandemic saw massive challenges to the federal government structure and brought up questions of the legitimacy of administrative agencies and the role of state police powers as opposed to federal supremacy and preemption. The states should continue to protect the health and safety of their people, while also protecting their fundamental liberties. In all cases of questions surrounding the pandemic, it is imperative that the states and federal government hold each other accountable. The administrative agencies, however, are a beast of their own and go against the foundations of the republic. Limits need to be made regarding their authority, and the communication of their decisions and practices should be of the utmost importance if they wish to continue coexisting with the federal system the framers intentioned.

Notes

[1] After the COVID-19 pandemic ended, the Supreme Court struck down the Chevron deference in its ruling in Loper Bright Enterprises v. Raimondo (603 U.S. [2024], 144 S. Ct. 2244). This ruling came after my essay was submitted for The Independent Review’s contest.

[2] Buck v. Bell, Superintendent of State Colony Epileptics and Feeble Minded, 274 U.S. 200 (1927).

[3] 592 U.S. (2020). Per curiam U.S. Supreme Court. Roman Catholic Diocese of Brooklyn, New York v. Andrew M. Cuomo, Governor of New York.

[4] Gorsuch, J. Concurring. 592 U.S. (2020).

[5] Kavanaugh, B. Concurring. 592 U.S. (2020).

[6] Breyer, J. Dissenting. 592 U.S. (2020).

[7] 592 U.S. (2021). South Bay United Pentecostal Church et al. v. Gavin Newsom, Governor of California.

References

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Brannen, Daniel E., Jr., Richard Clay Hanes, and Rebecca Valentine. 2011. Buck v. Bell (1927). In Supreme Court Drama: Cases That Changed America, Vol. 4: Equal Protection and Civil Rights, pt 2, edited by Lawrence W. Baker, 756–62.

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Williams, Vivien. 2020. COVID-19: Flattening the Curve. Mayo Clinic News Network. March 16, 2020.