The United States Constitutional Restraints on the Presidency During a Global Pandemic: What the U.S. can learn from New Zealand

The COVID-19 pandemic has proven to be a massive challenge for governments around the globe. The United States, in all of its might, is no exception. As of March 3, 2021, there have been just over 28 million coronavirus cases reported and just over 500,000 deaths.[1] While there is no doubt many factors that contributed to the high number of cases and deaths in the U.S., one striking consideration is the nonuniformity of the country’s response.

The President of the United States does not possess the power, at least explicitly, to impose a nationwide lockdown.[2] The United States Constitution is composed of various checks and balances on the federal government.[3] The Tenth Amendment states “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.”[4] The Supreme Court of the United States has established that the states have broad authority to enact quarantine laws and health laws of every description,[5] and many of the state constitutions vest “supreme executive power of the state” with the governor.[6] This vertical separation of powers has resulted in each of the 50 states taking their own unique response to the ongoing COVID-19 battle.[7] Many states currently have businesses mostly open, while some states[8] are categorized as having a mix of some businesses allowed to operate, while others are still closed.[9] A large amount of states have mandatory mask restrictions, while some states only sometimes require masks,[10] and other states have no mask restrictions.[11] Additionally, states have been operating on their own timelines for stay at home orders and social gathering limitations.[12] With the country being a free one, and citizens allowed to travel between states,[13] these inconsistencies led to travel restrictions with states designating other states as “high risk” and requiring quarantine from travelers.[14]

The President, due to this very separation of powers addressed above, is unable to uniformly implement a response across the nation. Instead, the individual governors dictate their respective states’ response, and this results in scattered nonuniform action.

Conversely, New Zealand has been regarded as one of the best overall responses to the COVID-19 pandemic.[15] As of February 28, 2021 the country has reported 2,016 cases and a mere 26 deaths.[16] They quickly and aggressively implemented an alert system which allowed for a range of measures that can be applied locally or nationally by the government.[17] In March, at the beginning of the outbreak, they were placed on a nationwide lockdown under the highest alert level, Level 4.[18] This meant that citizens could only interact with people within their home.[19] They remained under a seven week national stay-at-home order,[20] before slowly reopening until they declared the pandemic over in the country.[21] The Alert System is an example of how a cohesive uniform response from a country’s leaders can effectively combat COVID-19.

The United States can look to New Zealand in an effort to be better prepared for a future public health crisis. Congressional action granting the President emergency powers to implement a consistent plan is imperative to help avoid the inconsistencies of individual state responses. This empowerment by Congress would comply with the Constitution,[22] respect our checks and balances, and better situate the United States to not allow history to repeat itself.

Devin Routie is a staff member of Fordham International Law Journal Volume XLIV.

This is a student blog post and in no way represents the views of the Fordham International Law Journal.

—

[1] Actual number of cases reported is 28,456,860 and deaths reported are 513,122. See COVID Data Tracker, Ctr. for Disease Control and Prevention https://covid.cdc.gov/covid-data-tracker/#global-counts-rates (last visited March 3, 2021).

[2] See Matthew Brown, Fact Check: Can Trump use the Stafford Act to order a national, mandatory 2-week quarantine?, El Paso Times (March 20, 2020, 11:37 PM), https://www.elpasotimes.com/story/news/factcheck/2020/03/19/fact-check-does-stafford-act-allow-trump-order-quarantine/2872743001/.

[3] See Article I, Article II, and Article III of the U.S. Constitution for the explicit horizontal checks and balances. See U.S. Const. art. I; U.S. Const. art. II; U.S. Const. art. III.  

[4] U.S. Const. amend. X.

[5] See Responses to COVID-19 in the United States, Library of Congress (Nov. 2020), https://www.loc.gov/law/help/covid-19-responses/us.php#_ftn60 (citing Jacobson v. Massachusetts, 197 U.S. 11, 25 (1905)).

[6] The language of some state constitutions differs slightly, using terms such as chief executive officer, chief executive power, supreme executive authority, supreme power, or executive power. See What constitutional or statutory duties does the governor have as it relates to education?, Education Commission of the States (Nov. 1, 2017), http://ecs.force.com/mbdata/mbquestNB2?rep=KG1701.

[7] See Responses to COVID-19 in the United States, supra note 5.

[8] These include California, Arizona, Massachusetts, Connecticut, Colorado, New Mexico, and Oregon. See Coronavirus Restrictions and Mask Mandates for All 50 States, The New York Times (March 3, 2021),  https://www.nytimes.com/interactive/2020/us/states-reopen-map-coronavirus.html.

[9] See id.

[10] These include Arizona, Kansas, Wyoming, Arkansas, Mississippi, and South Carolina. See id.

[11] These include Florida, Georgia, Tennessee, and Missouri. See id. 

[12] See Rachel Treisman, Northeast: Coronavirus-Related Restrictions By State, NPR (Dec. 1, 2020, 10:03 AM), https://www.npr.org/847331283.

[13] States implemented travel restrictions from certain other states which may require quarantine or a negative test result upon arrival.

[14] See Forrest Brown & Megan Marples, Covid-19 travel restrictions state by state, CNN (Feb. 24, 2021; Updated Mar. 8, 2021), https://www.cnn.com/travel/article/us-state-travel-restrictions-covid-19/index.html.

[15] See Ian Bremmer, The Best Gobal Responses to the COVID-19 Pandemic, 1 Year Later, Time (Feb. 23, 2021, 6:07 PM),  https://time.com/5851633/best-global-responses-covid-19/.

[16] See New Zealand COVID-19 Situation, World Health Org. (March 3, 2021, 3:35 PM),  https://covid19.who.int/region/wpro/country/nz.

[17] See Bremmer, supra note 15; See About the Alert System, New Zealand Government (Dec. 15, 2020),  https://covid19.govt.nz/alert-system/about-the-alert-system/#covid-19-alert-system.

[18] See Kevin Kunzmann, How Did New Zealand Control COVID-19?, Contagion Live (Aug. 9, 2020),  https://www.contagionlive.com/view/how-did-new-zealand-control-covid19.

[19] See Bremmer, supra note 15.

[20] See Kunzmann, supra note 18.

[21] See id.

[22] Congress has already enacted various legislation giving the President emergency powers in certain situations, and the new action can piggyback off of this framework. See A Guide to Emergency Powers and Their Use, Brennan Center for Justice (Apr. 24, 2020), https://www.brennancenter.org/our-work/research-reports/guide-emergency-powers-and-their-use.