Posts shared widely on Facebook claim that U.S. governors do not have the authority to close businesses, force residents to stay home, or shut down religious institutions “without legislative due process and consent.” This claim, which speaks to the actions taken by governors amid the coronavirus pandemic, is false.
According to the Tenth Amendment, included in the U.S. Constitution’s original Bill of Rights, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people” (here). As explained by David J. Barron, U.S. Circuit Judge of the U.S. Court of Appeals for the First Circuit, “The Tenth Amendment endows the people with the right to choose and define their local government” (here).
Annenberg classroom, a foundation that provides a multimedia curriculum on the Constitution (here), says the Tenth Amendment is designed “to further define the balance of power between the federal government and the states” ( here ). Any power not explicitly granted to the federal government by the Constitution “is left to the states or the people.” Management of disasters or emergencies are one such power given to state governments, led by elected governors.
The National Governors Association, a bipartisan organization that defines itself (www.nga.org/about/) as “the voice of the nation’s governors,” says, “governors are responsible for ensuring their state is adequately prepared for emergencies and disasters of all types and sizes. Most emergencies and disasters are handled at the local level, and few require a presidential disaster declaration or attract worldwide media attention” (here).
As reported by Business Insider ( here ), 32 state governors had issued a state of emergency in response to the new coronavirus before President Donald Trump declared a national emergency on March 13, 2020 ( here ). Governor Jay Inslee of Washington was the first to do so, issuing a COVID-19 emergency proclamation on February 29 ( here ).
Should President Trump decide to lift his national emergency declaration, he would not have the authority to decide when states reopen. According to the Brookings Institution, a nonprofit public policy organization, “No federal statute gives the president the authority to override state decisions… If governors choose to disregard his call to reopen their states, their decisions will be final” ( here ).
The National Governors Association explains: “State emergency management laws usually define how a governor may declare and end a state of emergency” ( here ). In other words, state statutes have already granted the governor the authority to declare and manage a state of emergency.
Jessica Bulman-Pozen, a professor at Columbia Law School’s Center for Constitutional Governance (here), told Reuters: “In these states where we’re seeing concerns about the executive branch, either the governor or the department of health’s orders, the legislature has previously authorized the executive branch to issue such orders.” Governors have already received “broad grants of authority from the state legislature to respond to emergencies,” she added, which are typically based on existing state statutes previously passed by the legislature.
Such statutes vary by state. Lawfare, a blog dedicated to national security issues, published by the Lawfare Institute along with the Brookings Institution, has published a review of U.S. state and territory laws giving state executives the authority to impose a statewide quarantine here. Lawfare’s review of state laws granting state executives the authority to enforce stay-at-home orders and restrict non-essential business can be found here .
False. U.S. governors have the authority to manage emergencies within their state, as granted by the Tenth Amendment to the U.S. Constitution as well as existing statutes passed by respective state legislatures.
This article was produced by the Reuters Fact Check team. Read more about our work to fact-check social media posts here .
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