In the thick of the COVID-19 national health emergency, President Trump has tweeted and stated on several occasions that he will seek to overrule states' governors' decisions to issue lockdowns and close non-essential businesses. What powers does the federal government have to override state mandates? Can the president require governors to rescind shelter-in-place orders? What about Congress through their power to regulate interstate commerce? Professor Glenn Cohen explains the constitutional basis of the federal and state governments powers in a public health emergency.
Professor Glenn Cohen of Harvard Law School is one of the world's leading experts on the intersection of bioethics and the law, as well as health law. He is the faculty director of Harvard Law's Petrie-Flom Center.
Commerce Clause and Dormant Commerce Clause?
The Commerce Clause refers to Article 1, Section 8, Clause 3 of the U.S. Constitution, which gives Congress the power “to regulate commerce with foreign nations, and among the several states, and with the Indian Congress has often used the Commerce Clause to justify exercising legislative power over the activities of states and their citizens, leading to significant and ongoing controversy regarding the balance of power between the federal government and the states. The Commerce Clause has historically been viewed as both a grant of congressional authority and as a restriction on the regulatory authority of the States.
The “Dormant Commerce Clause" refers to the prohibition, implicit in the Commerce Clause, against states passing legislation that discriminates against or excessively burdens interstate commerce. Of particular importance here, is the prevention of protectionist state policies that favor state citizens or businesses at the expense of non-citizens conducting business within that state. In West Lynn Creamery Inc. v. Healy, 512 U.S. 186 (1994), the Supreme Court struck down a Massachusetts state tax on milk products, as the tax impeded interstate commercial activity by discriminating against non-Massachusetts (quotation from Law Information Institute – "Commerce Clause" with emphasis added)
Youngstown Sheet & Tube Company v. Sawyer (Supreme Court of the United States (1952)
In a 6-to-3 decision, the Court held that the President did not have the authority to issue such an order. The Court found that there was no congressional statute that authorized the President to take possession of private property. The Court also held that the President's military power as Commander in Chief of the Armed Forces did not extend to labor disputes. The Court argued that "the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker." (quotation from Oyez at Cornell’s Legal Information Institute)
The Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law was founded to promote interdisciplinary analysis and legal scholarship in these fields.
In the COVID crisis, the president has made many statements that he and the federal government will seek to overrule decisions by the state governors. Does the president or the federal government have that power?
My name is Glenn Cohen. I'm a professor at Harvard Law School. I'm the faculty director of the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics, and an expert on the intersection of law and medicine. Right now, I want to address a topic that's been in the news quite a bit, which is the question of what the federal government can do against the state governments when they disagree on questions like quarantine and the like.
So one thing that's been bandied about is the question of whether the federal government and particularly the president can order a state to stop ordering shelter-in-place, that is to say to resume regular commerce and regular business. Does the federal government have that power? The answer is probably not. Historically, states have been the repository of most of the police powers and most of the authority when it comes to public health law. It is true that the Congress has the power under the Commerce Clause to regulate interstate commerce. But these particular kinds of orders see mostly intra rather than interstate, in the sense of it has to do with the activity or the non activity of people within a particular state. Now maybe Congress could pass a statute in this regard. It hasn't tried to, claiming that there's an effect on interstate commerce. But none of the existing statutes that I know of, at least, seem like they give Congress that authority. There is also what is known as the Dormant Commerce Clause Power, a somewhat shady doctrine of constitutional law, which basically says the one state can't act to discriminate against out-of-staters. Could one argue that by shutting down business in your state, you are engaging in the kind of violation of the power relating to the Dormant Commerce Clause? Again, probably not. It's a little bit fuzzier, but typically we ask whether there is an undue burden on out-of-state commerce, and given that these governors who are ordering these shutdowns are doing so out of bonafide public health motivations that seem quite strong, I'm skeptical that any court would find a violation of the Dormant Commerce Clause.
What if it's not Congress? What if it's the president himself? The president does have robust powers under Article II. Could the president claim he has inherent power to do this without Congress acting? Again, the answer is probably not. On the Youngstown Steel seizure case, a famous case from Supreme Court involving war times attempts to nationalize the steel industry, the Supreme Court basically slapped the hand of the president back then and said, "That exceeds your power." And to me, this would seem to be an even greater claim by a president to reverse what a governor had done and even wasn't present in that case. So if it wasn't good enough in Youngstown Steel seizure, it doesn't seem to me like it will be good enough now. But you never know, compositions of courts change, and there is this famous phrase that "The Constitution is not a suicide pact," which is to say judges are ultimately pragmatists and they ultimately will look on the facts on the ground and try and make a decision and put that into the language of the law. But it's motivated by their own real fears of what the world is turning into.
I'm Glenn Cohen. That's a little primer on the powers of the federal government when they conflict with state governments when it comes to shelter-in-place and other orders. I hope you enjoyed and learned something from it.