The answer is complicated and different for state and local governments than for the federal government. This article will only cover state and local laws, as there is no federal order to stay home yet. That might change, but right now there are state and local restrictions on leaving the house, group gatherings, etc. The Tenth Amendment also retains state sovereignty and provides protection against intrusion by federal power into state and local government. But this, too, is being reviewed in the constitutional order. The primacy clause of the U.S. Constitution states that federal law “is the supreme law of the land. notwithstanding anything to the contrary in the Constitution or the laws of any State. However, it is generally accepted that the primacy provision applies only to areas where the federal government exercises its implied and constitutionally enumerated powers. President Trump recently claimed “absolute authority” to open up the U.S. economy by forcing states to lift restrictions imposed by governors through proclamations and executive orders to combat the spread of COVID-19. A few days later, he moved from claiming absolute authority to publishing a plan to reopen the economy that allows governors to decide how to implement the plan in their respective states. The plan has met with mixed reactions.
Some governors have begun to lift restrictions. Others were reluctant to do so until appropriate testing and preventive measures were in place. The president has been vocal about his desire to reopen the economy. The question is: what will he do if governors and mayors continue to maintain restrictions? To what extent can it force states to lift restrictions and stimulate the economy? Like the Church of California, the Church of Illinois has argued that the state`s reopening plan imposes unique limits on religious worship that are not imposed on other businesses. After the Illinois Church appealed the 7th District`s decision to allow social distancing measures to be maintained, the Illinois Department of Public Health issued new guidelines allowing face-to-face worship services with recommendations for maximum capacity and social distancing. The Supreme Court rejected the Church of Illinois` request for a postponement because the new guidelines invalidated the residency application. This theoretical assistance program would likely meet the first point of the test (i.e. that addressing the negative effects of COVID-19 would be in the “general well-being”).
However, such legislation should be carefully drafted to meet the other points of the criterion. Its conditions must be clear as to what is required of beneficiary States; For example, the legislation could clearly state that states must lift stay-at-home orders or business closures in order to receive federal funding. Clear conditions like these in a new theoretical aid package would also pass the third point of the Dole test, since the federal interest in such legislation (economic stimulus) is strongly linked to the desire of states to reopen their economies. The completion of the last point of the Dole test would depend more on the specifics of such theoretical legislation. For example, would such an assistance program contain conditions requiring or forcing workers to return to work? If so, would such an act involve constitutional rights? The answer is certainly open to discussion. Marshall`s argument set a precedent that police powers are reserved for states to operate within their borders (with a few exceptions). These police powers include the ability to impose isolation and quarantine conditions. Marshall wrote that quarantine laws “are part of that immense mass of laws encompassing everything in the territory of a state that has not been handed over to the General Government.” In a case that led to a final decision on the matter, Friends of Danny Devito v. Wolf, the Pennsylvania Supreme Court upheld the governor`s closure of physical operations of all unsustainable businesses in order to reduce the spread of the coronavirus. The governor`s order was challenged by a real estate agent, a golf course owner and a candidate for state legislature (no relation to the famous actor), who claimed the order violated their rights to free speech, assembly and due process.