Local government power during times of emergency

Kevin Daley of the Washington Free Beacon explores the extent of local governments’ emergency powers.

North Carolina’s Outer Banks, a premier vacation destination on the east coast, closed its borders to visitors on March 17 because of the coronavirus pandemic.

While border closures raise difficult constitutional problems, state and local governments can and have exercised extraordinary powers to stop COVID-19 infections.

“It is largely up to the states themselves to prevent the spread of the disease within their borders, but they have broad ‘police power’ authority under the Constitution to do so,” Heritage Foundation’s John Malcolm told the Washington Free Beacon. “Federal law, including the Stafford Act, provides ample authority to the federal government to assist in that effort.”

Though the White House press briefing room is, with some justification, a fixture of press attention during the crisis, it is state and local authorities who hold the balance of power on public health issues in the United States. Even as that power is vast, its exact reach is unknown. As such, the coronavirus pandemic provides a rare occasion for the states to exert exceptional authority, perhaps even in tension with the federal government.

The Outer Banks are in Dare County, N.C. Police opened checkpoints around the county on March 17 and required residents to present government-issued identification to come and go.

Some legal authorities, while not definitive, suggest the state and local authorities can implement such drastic containment measures.

Border closures seem dubious since they interfere with federal powers. But as the University of Virginia’s Kyle Connors recently explained, the Supreme Court was extremely deferential to state officials on public health issues throughout the 19th and early 20th centuries. Border closings, in particular, were periodically in use.

Mitch Kokai / Senior Political Analyst

Mitch Kokai is senior political analyst for the John Locke Foundation. He joined JLF in December 2005 as director of communications. That followed more than four years as chie...

Reader Comments