What Your State’s Shutdown Laws Mean for Reopening - America's Future Foundation

May 7, 2020


What Your State’s Shutdown Laws Mean for Reopening

By: Esther Bardo

During times of health emergencies, such as the current COVID-19 pandemic, governors or other state officials are given emergency powers to protect the health and safety of their citizens. The current crisis has resulted in orders derived from such authority which have shuttered states and cities across the country in an effort to contain the virus enough as to not overwhelm health systems. In Ohio, the stay-at-home order went into effect on March 23 and was recently extended through May 29. 

In some states, governors reserve the power to declare a quarantine, while in others it is the director of the state’s health department. States differ even further regarding the involvement of their legislature in permitting emergency powers, penalties and enforcing quarantine laws, and in determining which businesses are permitted to remain open and those deemed “unessential”. 

Ohio’s state constitution does not provide the governor emergency powers, but instead gives the state Department of Health supervision of all matters relating to the preservation of the life and health of Ohioans and ultimate authority in matters of quarantine and isolation. Making all current Ohio school closures, stay-at-home orders, and permitted business operations directives from the health director, an appointed position. However, our neighbor to the north could not be more different. Whereas Ohio’s legislature largely remained on the sidelines (excluding their emergency session on March 25 to set a date for Ohio’s delayed presidential primary), in Michigan, legislative authorization was granted, giving their governor emergency powers and the authority to issue orders and directives. That is, until the governor pulled from different statutory authority to extend the emergency declaration herself, prompting a lawsuit  by Michigan legislators.

AFF-Columbus held a virtual discussion with Americans for Prosperity Michigan State Director Annie Patnaude and Rob Walgate, vice president at the American Policy Roundtable, to not only talk about the differences in state quarantine laws, but how these differences may affect a state’s economic recovery. One common refrain from both presenters was the need to return to business as usual in the statehouse(s) in order to get back to business on Main Street. 

As states transition from “flattening the curve” to re-opening, quarantine laws and emergency powers will need to give way to implementing policy designed to jumpstart the local economy. In Michigan, the majority of COVID-19 cases are centered around Detroit, and Patnaude made the point that imposing the same isolation order across the entire state is therefore not necessary. Other policy recommendations touched on included occupational licensing and regulatory reform, recommendations which would benefit every state. Patnaude believes that “now is the time to encourage growth and allow entrepreneurs to do more, let’s let the free market show what it can do.” Walgate suggested what Ohio needs most are the state’s legislators to take a more active role in setting clear re-opening timeframes and health and safety expectations for businesses. This would not only reinstitute citizen’s voices (through their elected representatives) into the conversation, but also provide more accountability and transparency in the decision-making process. 

The discussion on quarantine laws is far from finished, in fact, just yesterday, the Ohio House amended and passed two bills aimed at giving the legislature more say in future stay-at-home orders. One bill would limit orders issued by the Ohio Department of Health to 14 days, any extension would require legislative approval. The second bill would lower the penalties for violating stay-at-home orders to a minor misdemeanor. Meanwhile, the discussion on re-opening is just beginning.