Local View Column: States are not overstepping in wielding enormous power


As a lawyer and practitioner of constitutional law, I have noticed a growing chorus of complaints from my friends, neighbors, and community about the level of control state governments are exerting over people's daily lives. The dramatic response we have seen from state governments around the nation right now has been both medically necessary — and, more importantly for this commentary, entirely legal.

Here's why:

In America, we're accustomed to enjoying a broad set of liberties, which generally flow from a federal government of limited and enumerated powers. Many states follow the federal government's lead and adopt federal rules, procedures, and structures with little change. State governments tend to follow in the footsteps of the federal government out of convenience and the benefit of uniformity.

Make no mistake, though: State governments are free to solve their own problems as they see fit and may do so in new and unexpected ways.

This brings us back to the COVID-19 crisis. For the first time in the past 100 years, Americans are witnessing the full "general police power" of state governments in their daily lives. The general police power, unlike the limited enumerated powers of the federal government, authorizes a state to freely regulate the health, safety, general welfare, and even morals of its citizens if it so chooses. Truly, the general police power is an enormous sea of power that lies virtually dormant in 21st-century America.


Under the general police power, and in the context of infectious disease, states can close businesses, prevent public gatherings, set price limits for goods and services, restrict travel, issue massive quarantine orders, mandate mass testing of the public, and, of course, punish those who attempt to subvert a state's efforts to contain the disease.

In the case of COVID-19, we see that states have an almost unimaginably wide latitude in dealing with the threat as they see fit. Which is kind of the point, isn't it? States need to be free to adapt to challenges as they change on an hour-by-hour basis; and under the general police power, states have free reign to do so.

In short, what you see today is the healthy function of state government and the proper exercise of state authority to protect citizens.

So please, don't panic, listen to the warnings you see from the state and try to abide by its guidelines to protect the most vulnerable in our community.

Brandon Engblom is an associate attorney for the Ledin, Olson & Cockerham firm in Superior ( He wrote this for the News Tribune.

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