Who’s in Charge? Making Sense of Government Orders in the COVID-19 Response

Faegre Drinker Biddle & Reath LLP

All levels of government are issuing declarations, orders, and guidance directing individuals and businesses to socially distance, isolate, and quarantine under certain circumstances. Some overlap. Others conflict. With so many directives out there, it is important to understand which takes precedence. A high-level understanding of the preemption doctrine can help you make sense of this growing patchwork of local, state, and federal actions, orders, and directives related to the COVID-19 response.

First, questions of preemption typically arise only when there is a conflict in two regulatory schemes. In the absence of conflict, individuals and businesses should follow all applicable government directives.

Second, generally speaking, declarations of national emergency by the President and federal agencies do not preempt state and local orders. Federal laws ordinarily do not preempt state laws unless Congress has explicitly established its intention to do so, or it has so occupied the field with its statutory scheme that its intention to preempt state law is clear. Federal laws concerning national emergency declarations do neither, except in limited circumstances. For example:

  • No provision of the Stafford Act explicitly preempts state declarations of emergency. However, 42 U.S.C. § 5191 authorizes the President to declare an emergency even without a gubernatorial request if the emergency concerns an area under federal jurisdiction. To determine whether or not such an emergency exists, the President must consult the respective state governor, if practicable.
  • No provision of the Public Health Service Act has the effect of preempting state declarations of emergency when a national declaration of emergency is made under federal statutes. However, targeted liability protections for pandemic and epidemic products and security countermeasures preempt state laws related to regulation of any “countermeasure” recommended by the Secretary for use in the context of the disease. See 42 USC § 247d-6d.
  • No provision of the National Emergencies Act has the effect of preempting state declarations of emergency when a national declaration of emergency is made under the federal statutes. However, declarations under the Act can affect states through federal statutory emergency authorities activated once the declaration is made — for example, when President Obama invoked the Act during the 2009 H1N1 pandemic, he granted Social Security Act § 1135 waiver authority allowing the Secretary to waive or modify Medicare, Medicaid, and CHIP requirements during the public health emergency.
  • Cybersecurity Information Sharing Act guidance defining essential “critical infrastructure” and “critical infrastructure employees” is not binding on state and local governments, though it is often incorporated into state and local emergency orders, including stay-at-home orders. (For example, Indiana Governor Eric Holcomb’s stay-at-home order included such a provision.)

Third, state emergency declaration orders do not automatically fully or partially preempt preexisting or later-issued local emergency orders in their jurisdictions. Preemption analysis at the state and local level can depend on applicable state and local laws. For example, some state statutes explicitly provide that actions taken under the specific statute preempt all contrary local ordinances, rules, or legislation of political subdivisions (e.g., municipalities) of the state. Similarly, many state statutes delegating discretionary decision-making authority to local governments provide that the local government must exercise its authority in concert with, or in a way that does not conflict with or undermine, the state government.

To understand whether a state emergency directive preempts any conflicting local orders, it is necessary to identify the source of the state executive’s legal authority for issuing the declaration.

  • In some cases, state orders will specifically address preemption, for example, by countermanding directives in conflicting local orders. For example, Wisconsin’s March 24 Emergency Order specifically provides that it supersedes all conflicting local orders. Mississippi’s March 24 Executive Order imposes certain limitations on gatherings but deems a very wide variety of businesses and operations “essential.” And because the Order suspends and renders unenforceable “any order, rule, regulation or action by any governing body, agency or political subdivision of the state that imposes any additional freedom of movement or social distancing limitations” or restricts the operations of essential businesses and operations, it has the effect of preempting local orders that impose further restrictions, such as local shelter-in-place orders.
  • Even if they do not directly address preemption, many emergency declarations will identify the statutes or other source of state law under which the declaration is being issued. That state law may address the preemptive nature of declarations issued under it. For example, New York Governor Andrew Cuomo specified that the directives in his March 20 Executive Order were issued pursuant to his authority under “Section 29-a of Article 2-B of the Executive Law to temporarily suspend or modify any statute, local law, ordinance, order, rule, or regulation, or parts thereof, of any agency during a State disaster emergency, if compliance with such statute, local law, ordinance, order, rule, or regulation would prevent, hinder, or delay action necessary to cope with the disaster emergency or if necessary to assist or aid in coping with such disaster.”

In both instances, the state orders are likely to supersede any conflicting local orders. For example, Massachusetts Governor Charles Baker’s March 23 Emergency Order closing non-essential businesses specifies that, among other things, “construction workers” perform an essential service and instructs that this determination, incorporated into the Order, “supersedes and makes inoperative” any local order that “will or might in any way impede or interfere with” achieving this objective. Governor Baker’s Order thus likely preempts Boston Mayor Martin Walsh’s earlier order shutting down all construction sites in Boston.

Fourth, in instances where the state emergency order is silent on preemption of local orders, citizens should first ask whether there is a conflict between the state and local orders. If not, citizens should follow directives laid out in both orders. If the orders conflict, consider the state law authorizing the issuance of the state declaration. That law may hold the answer on preemption. If it does not, next consider the state law authorizing the issuance of the local orders, which may specify the conditions under which the local government may exercise its authority — e.g., only in a manner that does not conflict with state directives.

In absence of a clear answer as to which directives control, consider obtaining clarification from state and local authorities — either may issue guidance explaining how citizens comply with the orders and, if not, may respond directly to questions as to which order controls. For example, the State of Indiana has established a “critical Industries Hotline . . . to help guide businesses and industries with the executive order.”

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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