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:
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 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.”