One Short-Lived Case Raises Questions About the Limitations on Cities' Ability to Respond to State and Federal Action in the Face of an Outbreak
Amid the COVID-19 pandemic, cities may be questioning what kind of local control they have during a public health crisis. The federal court case initiated by one California city that tried to stop infected patients from being quarantined within its borders gives a glimpse into the limits of that control.
Less than a month after the U.S. Department of Health and Human Services declared a nationwide public health emergency in response to COVID-19, the California Health and Human Services Agency informed the City of Costa Mesa that at least 30 patients diagnosed with COVID-19 were likely to be transferred to a state facility in the City. The patients were passengers of the Diamond Princess cruise ship that infamously was docked at Yokohama, Japan due to an outbreak of COVID-19 onboard. They had since been repatriated to Travis Air Force Base in Solano County for quarantine.
Claiming it was largely ignored by the state and federal authorities in developing this plan to transfer patients, the City responded by filing an emergency request for a temporary restraining order in federal court. The court granted the order to maintain the status quo until an expedited hearing could be held. A week later, the matter was dismissed as moot after HHS decided not to use the facility due, in part, to the imminent end of the quarantine period.
Although the court in City of Costa Mesa v. United States never decided the case on the merits, it raises important questions about the degree of local control cities may exercise in the midst of a public health emergency. In general, local control can be exercised only to the extent it does not interfere with authorized federal or state responses to COVID-19. Per Article 11, section 7 of the California Constitution, cities retain the ability to regulate so long as there is no express or implied preemption under state or federal law. Conversely, federal and state entities must act according to the statutory and regulatory authority conferred upon them — authority which is expansive in times of emergency.
The extensive network of laws and regulations related to national health emergency management were designed to coordinate an effective response at all levels of government to limit and respond to the spread of disease. At the federal level, under 42 U.S. Code section 264(a), the Surgeon General has authority to make and enforce regulations that are necessary to prevent the introduction of communicable diseases. This authority is delegated to the Centers for Disease Control and Prevention and includes authority to quarantine individuals.
The Public Health Services Act, section 243(a), further facilitates coordination between federal, state and local agencies. Under it, the HHS Secretary is directed to assist state and local authorities and “shall cooperate with and aid state and local authorities in the enforcement of their quarantine and other health regulations.” In the case of a public health emergency, as was declared by HHS earlier this year, HHS may distribute federal funds to states and local entities on an expedited basis to control the spread of COVID-19 under section 247d. States and local health departments, for the duration of the public health emergency, are also permitted, with HHS approval, to temporarily reassign department personnel to respond to COVID-19 if their salaries are funded in part by PHSA programs under section 247e.
At the state level, Gov. Gavin Newsom declared a state of emergency on March 4, giving additional powers and resources to the CHHS, the Governor’s Office of Emergency Services and other agencies already responding to COVID-19. This includes, under California’s Emergency Services Act, California Government Code sections 8550 et seq., the power to “use and employ any of the property, services and resources of the state as necessary to carry out the purposes of this chapter.” (section 8570) It also gives the Governor discretion to cooperate with federal agencies and take steps he deems necessary to facilitate their efforts. Importantly, the Emergency Services Act grants broad immunity to both states and political subdivisions when taking (or failing to take) discretionary action to protect the public against COVID-19 under section 8655. This allows state and local authorities to act quickly, unhampered by the fear of tort liability.
So what can cities do if they do not want infected patients quarantined in their communities? Though a decision on the merits was never reached in City of Costa Mesa, it does show that cities can obtain temporary relief from state and federal emergency actions in some circumstances. While a complaint was never filed, the City asserted liability theories based on procedural and substantive due process violations, the Administrative Procedure Act, the 10th Amendment, and nuisance against the federal and state government and related agencies. Whether the arguments proffered by the City would have withstood legal scrutiny will never be known, but it faced significant legal obstacles — particularly in the action against the State. These include standing and immunity issues, as well as significant hurdles on the merits.
The declaration of a state of emergency by the Governor after the filing of City of Costa Mesa has changed the legal context entirely. Given the State’s enhanced emergency powers, cities are better off collaborating with county health departments and state and federal authorities and seeking funds and resources from them to address local impacts. Although cities have broad police powers to pass regulations in the interest of the public welfare, the state and federal government significantly occupy the field of public health emergencies and pose a substantial obstacle to local action at odds with those efforts.
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