New laws in some states would make these types of measures illegal, potentially leaving it up to courts to decide whether constraining individual rights can be justified by the need to protect the public from a dangerous pathogen.
Specific prohibitions in new state laws against mask requirements, business closures and vaccine mandates are likely to create major barriers to effective public health practices in this pandemic, said Michael Fraser, executive director of the state public health organization. But, he said, many of the laws that more broadly limit executive powers in a public health emergency are likely to have unintended consequences in the future.
Researchers at both the state and local public health associations suggest that many of this year’s bills limiting public health authority were likely inspired by the American Legislative Exchange Council, or ALEC, a conservative nonprofit. Specific language from a model bill — the Emergency Power Limitation Act — published on the group’s website in January has shown up in bills in more than a dozen states, the researchers say.
Last year, GOP-led legislatures in Kentucky, Michigan, Minnesota, North Carolina, Pennsylvania and Wisconsin battled Democratic governors over what they called government overreach in their response to the COVID-19 pandemic.
In April 2020, Wisconsin’s legislature sued the state’s health secretary for her “Safer at Home” emergency order extending COVID-19-related business closures and prohibiting nonessential travel as the pandemic raged.
The Wisconsin Supreme Court found that the health secretary and Democratic Gov. Tony Evers had exceeded their authority and failed to follow administrative procedures under a state law that granted the health secretary authority to “close schools and forbid public gatherings in schools, churches, and other places to control outbreaks and epidemics.”
In September 2020, in a case brought by several counties, some Republican state legislators and businesses, a U.S. district judge in Pennsylvania ruled that some of Democratic Gov. Tom Wolf’s orders to control the coronavirus outbreak, including limits on crowd sizes, stay-at-home orders and business closures, were unconstitutional.
In October 2020, Michigan’s high court ruled against Democratic Gov. Gretchen Whitmer, finding she did not have the authority to extend the pandemic state of emergency after the legislature voted against an extension in April.
Similar lawsuits in Kentucky, Illinois, Minnesota and North Carolina were decided in favor of the governors.
This year, new laws limiting state and local public health authority in Indiana, North Dakota and Ohio have pitted Republican lawmakers against Republican governors. In all three states, GOP governors vetoed legislative attempts to curtail state and local COVID-19 related powers, and lawmakers overrode their vetoes.