The Police Power of the States to Control a Pandemic, Explained

From the very first moment that governors and other public officials began ordering bars and restaurants to close and imposed limits on public gatherings, I’ve been deluged with legal questions: Can states really order businesses to close and limit public meetings? Why are the orders typically coming from governors? Are the state closure orders evidence the president is failing? If the government orders a business to close for a public purpose, isn’t it required to compensate the business owner? 

Here are the short answers. Yes, states have the power to order closures in the face of a known, deadly pandemic. The closures are coming from governors because the governors have the relevant legal authority. No, state closings are not evidence the president is failing, they represent federalism at work. And finally, closed businesses are likely not due any compensation (though the government can choose to provide relief)—at least so long as the closures don’t last long.  

Now, let’s explain. This won’t be a law review article, so I’ll be writing in broad strokes. The underlying statutory structure is complex and varied at the federal, state, and local levels, but the relevant constitutional principles are relatively simple, they make sense, and they’ve been understood and applied since the nation’s founding to safeguard public health.

It’s vitally important to understand that while the federal government possesses far more resources than any state, the president has less inherent authority to respond to pandemics than governors. The federal government is a government of enumerated powers—it has only the powers granted it by the Constitution. Therefore, for the president or Congress to act they have to locate the source of their authority within a specific provision of the Constitution.