Law in the Time of COVID-19: Legal Considerations in a Crisis
A look at the constitutional sources, and limits, of the emergency powers governing an American pandemic.
The legal architecture that governs an American pandemic was not built in 2020. It was assembled in fragments across more than a century of public-health statutes, emergency-management codes, and a handful of Supreme Court decisions few outside the field had occasion to read. When COVID-19 forced governors and mayors to close businesses, restrict gatherings, and confine residents to their homes, those dormant authorities were invoked at a scale without modern precedent. The orders moved faster than the litigation, but the litigation has begun to arrive, and the questions it raises reach well beyond the immediate emergency into the durable balance between individual liberty and the state’s power to protect public health.
The source of the power to close a state
The authority to impose quarantine, close schools, and shutter commerce rests primarily with the states, not the federal government. Under the Tenth Amendment, the police power — the general authority to legislate for health, safety, and welfare — is reserved to the states, and most have delegated emergency versions of it to their governors through statute. A typical state emergency-management act lets the governor declare an emergency and then suspend regulations, commandeer resources, and direct the movement of people for the duration of the declaration. Local health officers hold parallel authority under separate public-health codes.
The foundational case is more than a century old. In Jacobson v. Massachusetts, the Supreme Court upheld a Cambridge ordinance requiring smallpox vaccination, reasoning that individual liberty is not absolute and may yield to reasonable measures a community adopts to protect itself against an epidemic.
Justice Harlan’s opinion has supplied the governing frame for emergency public-health law ever since: a state may act, but its measures must bear a real relation to the public-health objective and may not be exercised in an arbitrary or oppressive way. That two-sided holding — broad deference paired with an outer limit — is the axis on which the current disputes turn.
Where the early challenges have landed
The first wave of lawsuits attacked stay-at-home orders as wholesale deprivations of liberty, due process, and the right to travel. Those framed as general assertions of economic and social freedom have largely failed, because Jacobson and the cases following it treat ordinary liberties as subordinate to public protection during a genuine health crisis. Courts reviewing such claims have generally asked whether the order has a rational basis in protecting health and whether it is plainly, palpably beyond the bounds of reason — a deferential posture that most blanket challenges cannot overcome.
The more serious claims are narrower. They isolate a specific protected interest — the free exercise of religion, the right to assemble, access to abortion, the carrying of arms — and argue that the order burdens it more heavily than comparable secular activity. Several states drew lines that treated houses of worship less favorably than retailers deemed essential, and those distinctions are precisely where heightened scrutiny can re-enter a field otherwise marked by deference. The doctrinal fault line is whether a court analyzes a pandemic order under the relaxed Jacobson standard or under the ordinary tiers of constitutional scrutiny that apply to the right at stake. The outcome often follows from that threshold choice.
Separation of powers and the limits of delegation
A second category of dispute is structural rather than rights-based, and it may prove more consequential. It asks not whether the state may act, but who within the state may act, and for how long. Emergency statutes typically give a governor sweeping authority on the premise that an emergency is brief. A pandemic measured in months strains that premise. Legislators who voted for broad emergency powers in calmer times have found that those powers, once triggered, let the executive govern by decree while the legislature watches.
The result is renewed attention to the nondelegation principle and to statutory time limits on emergency declarations. Challengers argue that an open-ended grant of legislative power to a single official, exercised over an extended period without legislative reauthorization, exceeds what a state constitution permits. These claims do not depend on proving that any particular restriction is unwise; they contend that the restriction was imposed by the wrong branch, or beyond the window the statute allowed.
Nondelegation challenges rarely succeed in ordinary times, but a prolonged emergency supplies exactly the conditions — concentrated executive power, suspended legislative process, indefinite duration — in which state courts have historically been most willing to enforce the principle. The pandemic is testing whether that willingness still exists.
The federal layer: spending power and the gaps it leaves
Washington’s role in the early response was less about commanding behavior than about underwriting it. The CARES Act, enacted March 27, 2020, deployed the spending power on a historic scale — direct payments, expanded unemployment compensation, and business lending — rather than asserting any new federal authority to lock down the country. Its housing provision imposed a 120-day moratorium on evictions, but only for dwellings tied to federally backed mortgages or federal housing programs, leaving a large share of renters to the patchwork of state and local protections.
That structure reflects a constitutional reality: the federal government has no general police power and cannot order a state to close its businesses. It can spend, condition funds, and regulate interstate commerce, and it can invoke statutes such as the Defense Production Act to direct manufacturing. But the day-to-day machinery of confinement and reopening remained state-run, which is why the national experience was never a single policy so much as fifty overlapping ones.
Private ordering under strain: contracts and the workplace
The emergency did not pause private obligations, and a parallel body of questions emerged in contract and employment law. Tenants and businesses unable to perform looked to force-majeure clauses, to the doctrines of impossibility and frustration of purpose, and to the question of whether a government shutdown order qualifies as the kind of supervening event that excuses performance. The answers turn on contract language and on facts — whether performance was truly impossible or merely unprofitable — and courts have generally resisted treating economic hardship alone as an excuse.
Employment raised its own set of obligations: the duty to furnish a safe workplace, the contours of paid-leave entitlements added by emergency legislation, and the privacy implications of health screening and contact tracing. Many of those threads run directly into questions the present moment only sharpened — among them the durability of employee privacy when the home becomes the office and the housing strain that prompted later state action like California’s tenant-protection statute.
What the courts will be deciding next
The early returns suggest that blanket liberty claims will continue to fail, that targeted rights claims — especially under the Free Exercise and Assembly Clauses — will draw closer judicial attention where the state has treated comparable activities unequally, and that the sharpest contests may be the structural ones over how long a single official may govern an emergency alone. None of these questions resolves cleanly under a 1905 precedent decided in a world without modern tiers of scrutiny, and courts are openly divided over whether Jacobson should still set the standard or merely the background.
Whatever the immediate dispositions, the more lasting product of this period is likely to be legislative. States that watched a governor exercise unbounded power for months may rewrite their emergency statutes to add sunset provisions and legislative checks. The case law of the pandemic will shape the next emergency; the statutes the pandemic provokes will shape it more. Continuing analysis appears in this publication’s ongoing commentary and case tracker. The material here is offered as commentary and analysis, not as legal advice.
Questions readers ask
Where does a governor’s authority to issue a stay-at-home order come from?
From the state’s police power, reserved to the states under the Tenth Amendment and delegated to the governor through a state emergency-management or public-health statute. The federal government has no general police power and cannot order a statewide lockdown.
What did Jacobson v. Massachusetts actually decide?
It upheld a compulsory smallpox-vaccination ordinance, holding that individual liberty is not absolute and may yield to reasonable community measures against an epidemic — provided those measures are not arbitrary or oppressive and bear a real relation to the public-health goal.
Can a stay-at-home order be challenged as unconstitutional?
It can be, and many have been. Broad claims that an order violates general liberty have mostly failed under the deferential standard. Narrower claims tied to a specific protected right — such as free exercise of religion or assembly — have received more serious scrutiny, particularly where the order treated comparable secular activities more favorably.
Why do religious-worship restrictions get more scrutiny than business closures?
Because the free exercise of religion is a specifically protected constitutional right. When a state restricts worship more severely than comparable secular gatherings, courts may apply heightened scrutiny rather than the relaxed standard used for ordinary economic regulation.
What is the separation-of-powers objection to long emergency orders?
That emergency statutes were written for short crises and delegate broad legislative-style power to one official. When an emergency runs for months, challengers argue the executive is effectively legislating without legislative reauthorization, exceeding what the statute or state constitution permits.
Did the CARES Act stop all evictions?
No. Its eviction moratorium covered only dwellings with federally backed mortgages or in certain federal housing programs, and ran 120 days from March 27, 2020. Renters outside those categories depended on state and local protections, which varied widely.
Does a government shutdown order excuse a tenant or business from a contract?
Sometimes, depending on the contract. Parties have invoked force-majeure clauses and the doctrines of impossibility and frustration of purpose. Courts have generally required genuine impossibility rather than mere unprofitability, and the outcome turns heavily on the specific clause and facts.
Can the federal government force states to reopen or to stay closed?
Not directly. It lacks a general police power. It can spend, attach conditions to funds, regulate interstate commerce, and use statutes like the Defense Production Act, but the decision to open or close businesses within a state rests with state and local officials.
Are health screenings and contact tracing legal in the workplace?
Generally yes, within limits. Employers may take reasonable measures to maintain a safe workplace, but health screening and tracing raise privacy and disability-law questions, and the permissible scope depends on necessity, confidentiality, and applicable federal and state law.
Is Jacobson still the controlling standard for pandemic orders?
That is unsettled. Some courts apply Jacobson’s deferential review to emergency health orders; others hold that ordinary tiers of constitutional scrutiny should govern claims involving specific protected rights. The threshold choice between the two frequently determines the result.
