Fact check: Stay-at-home and other state emergency orders are not unlawful

The claim: Stay-at-home orders, travel restrictions and business closures are unlawful and without penalty of violation

California on March 19 became the first state to issue a mandatory stay-at-home order. Other states soon followed suit. Though many of these stay-at-home orders have been codified through executive orders by governors, a post circulating on Facebook proclaimed these orders to be unlawful and unenforceable. 

“REPOST from a constitutional lawyer,” Patti Torrey posted to Facebook on May 19. “You do NOT have to stay home.” The post included a number of claims, including that the stay-at-home orders and business closures do not carry criminal penalty or force of law. The post reduces the demands of these orders to mere suggestions. 

Torrey did not respond to request for evidence of this assertion or the alleged original post from a constitutional lawyer. 

Executive orders carry the force of law

Laws are indeed created through the legislative process, which operates very similarly at both the federal and state levels. Legislation must pass both chambers and receive the governor's approval in order to become law.

Executive orders issued by governors, on the other hand, carry the force of law at issuance.

“The poster’s view reflects a fundamental misunderstanding about what these states’ stay-at-home orders are,” said James E. Tysse, a partner in the Supreme Court and appellate practice at Akin Gump Strauss Hauer & Feld LLP in Washington, D.C., which focuses on constitutional issues.

Executive orders do not create new laws; rather, they unlock emergency powers that had been previously granted or new emergency powers that passed through the legislative process, Tysse said. It is true, as the Facebook post states, that governors and mayors cannot “craft a law and assign a punishment for its non-compliance,” but the stay-at-home orders do not fit this description because they activated established powers.

As a result, violators of the stay-at-home orders can incur punishments which vary by state. In Maryland, for instance, Gov. Larry Hogan’s order stipulated that offenders “may be subject to imprisonment not exceeding one year or a fine not exceeding $5,000 or both.” In Maine, violators might receive up to six months of jail time and a $1,000 fine.

Police powers are not limitless, but they are broad

While the federal government’s power is limited to the Constitution, states retain police powers. These stem from the 10th Amendment and provide the power to “establish and enforce laws protecting the welfare, safety, and health of the public,” according to the Legal Information Institute, an independently funded project of Cornell Law School. Each state, therefore, has its own emergency legislation to respond in a situation like a pandemic.

“Critically, those laws will usually require any emergency measures to be temporary and only during a declared emergency,” Tysse said. “And they may also put limitations on the ability of the governor or mayor to do certain things.”

For instance, a governor may be able to restrict business operations while not limiting emergency services. In New Jersey, Gov. Phil Murphy must renew the public health emergency every 30 days.

In general, these powers grant broad authority. As long as the orders are temporary and nondiscriminatory, they have a strong chance of standing up against legal challenges in court. 

Our rating: False

The fundamental argument that stay-at-home orders do not carry the force of law is FALSE. For instance, violators of curfews will likely lose in court, though cities like Los Angeles have taken a non-punitive approach. While the details and requisite punishments of the orders vary by state, emergency powers granted to governors can limit certain fundamental rights.

In addition, the Facebook post contains a number of errors, such as incorrectly attributing a quote from the Supreme Court of Virginia case Thompson v. Smith regarding the right of a citizen to travel to the 14th Amendment, which addresses citizenship rights, equal protection, etc.

Our fact-checked sources:  

• Legal Information Institute, Strict scrutiny 
• Maine.gov, March 31, 2020 - Governor Mills Issues Stay Healthy at Home Mandate
• Maryland.gov, As COVID-19 Crisis Escalates in Capital Region, Governor Hogan Issues Stay at Home Order Effective Tonight
• CNN, April 7, 2020 - These states have implemented stay-at-home orders. Here's what that means for you
• Patti Torrey, Facebook post
• Legal Information Institute, Police powers
• Thompson v. Smith
• NJ.gov, June 4, 2020 - Governor Murphy Signs Executive Order Extending Public Health Emergency in New Jersey
• Akin Gump Strauss Hauer & Feld LLP, March 23, 2020 - COVID-19: Emergency Powers and Constitutional Limits
• NPR, June 9, 2020 - LA Protesters Arrested For Violating Curfew Won't Be Charged

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Our fact check work is supported in part by a grant from Facebook.