April 30, 2020


Kelly Dunbar and Thomas Sprankling, WilmerHale LLP

The COVID-19 pandemic has led to a wide array of state and local shelter-in-place orders that will likely breed significant litigation between governments—particularly now that many states are contemplating different approaches and timetables for lifting the orders and as the federal government has announced a commitment to reopening the economy.  Indeed, the Attorney General has suggested that shelter-in-place orders raise civil liberties concerns that may prompt federal litigation against states that are slow to lift the orders. 

This post identifies the ways legal conflicts between the federal government and the states—or between the states themselves—may play out in litigation. 

A Wide Variety Of Approaches To Reopening The Economy

As Americans consider when and how to end the existing shelter-in-place policies issued by nearly every state, three sets of authorities have started laying out guidelines for reopening:

1.  The Federal Government.  On April 16, 2020, the Trump Administration issued a set of principles intended to “enable individual states to reopen in phases, using a deliberate, data-driven approach.”  Specifically, the federal government’s plan lists a set of “gating criteria”—e.g., a downward trajectory of COVID-19 symptoms, cases, and overloaded hospitals—that whenever met trigger increased personal and commercial freedoms.  The federal government’s guidelines are optional. 

2.  Individual States.  Many states have started announcing their own plans for reopening.  These efforts fall into three basic categories:

  • Several states have stated that they are planning to follow the general approach of the federal guidelines.  Those states include, for example, Kentucky, Tennessee, Idaho, and Colorado. 
  • A handful of states plan to open on a more aggressive schedule than the federal guidelines.  The most commonly cited example is Georgia, which is allowing “gyms, fitness centers, bowling allies, body art studios, barbers, [and] massage therapists” to reopen, as well as restaurants.  President Trump has criticized Georgia’s plan as coming “too soon.”     
  • Finally, a number of states are proceeding at a slower pace than contemplated in the federal guidelines.  California’s governor, for example, has listed six indicators that must be met before he will reconsider reopening the state’s economy (e.g., expanding testing and contact tracing, ensuring businesses and schools can support physical distancing) and has accordingly refused to set a particular date for reopening.

3.  Regional pactsAlliances of states in three regions—the West Coast, the Midwest, and the Northeast—have announced plans to reopen their economies in tandem guided by a shared set of considerations.

How Might This Play Out In The Courts?

The overlapping legal regimes discussed above may seem like unlikely fodder for litigation.  They all share the same basic goal—reopening the country as soon as is practicable—and the rules that would apply across multiple states (e.g., the federal guidelines) are ostensibly not mandatory.  

But the magnitude of the issues at stake—the potential for prolonged mass unemployment and an economic collapse on the one hand, and the possibility of worsening the pandemic on the other—may spur litigation.  Here are a few examples of the types of suits we might expect to see between governmental entities in the upcoming weeks and months:

1.  The Federal Government Sues—Or Supports A Lawsuit Against—A State For Reopening Too Slowly.  Although the federal reopening guidelines are now optional, Attorney General Bill Barr has indicated that the Department of Justice may support legal actions against states that maintain overly strict shelter-in-place policies once COVID-19 cases begin to decline.

The Attorney General suggested that such restrictions could raise “civil libert[y] concerns,” and to the extent that “governors … impinge on either civil rights or on the national commerce, … then we’ll have to address that.”  Indeed, earlier this week, the Attorney General issued a formal memorandum to U.S. Attorneys directing them to “be on the lookout for state and local directives that could be violating the constitutional rights and civil liberties of individual citizens.”  While the Attorney General has previously hinted that the federal government’s involvement might be limited to amicus or intervenor support, the memorandum states that federal prosecutors are instructed to both “monitor state and local policies and, if necessary, take action to correct them.” 

2.  One State Sues Another State For Moving Too Slowly Or Too Quickly.  Neighboring states with different reopening philosophies may also be the targets of litigation.  A state may fear that a neighbor is too quick to reopen and that its residents will spread the virus across state lines.  On the other hand, a state that is quickly reopening but has residents who primarily work in an adjacent state may fear that a slow opening policy may harm its residents’ ability to go back to work. 

Such suits might take the form of parens patriae actions, where the state asserts a “guardianship role to protect itself and its citizens from alleged harm.”  Another interesting quirk is that such litigation could in theory be filed with the U.S. Supreme Court in the first instance, as one of the narrow classes of cases that fall within its original jurisdiction.  

3.  A State Sues The Federal Government For Pushing To Reopen Too Quickly.  To the extent the federal government makes its reopening guidelines mandatory—or links them to a carrot, like increased federal funding—a state that is taking a slower approach to reopening might sue the federal government.  Such a suit might rely on the Tenth Amendment’s anti-commandeering doctrine—i.e., that the federal government cannot order state governments to act in specific ways to serve federal ends.  Alternatively, states might try to challenge federal funding premised on a speedy reopening under the rule that government funding requirements cannot be so onerous as to be coercive—i.e., turning an incentive for following federal rules into compulsion.

The Takeaway

Although there is no current litigation between different governments over the proper metes-and-bounds of COVID-19 reopening guidelines, the high stakes at play make such future lawsuits likely, if not inevitable.  These suits will raise new and difficult questions about the overlapping rights of the states and the federal government to protect our nation and its people that will shape federalism doctrines for years to come.  More practically, such lawsuits may have a direct effect on the health and safety of millions, as well as the strength of the national economy.  They are worth watching closely.

Kelly Dunbar is a partner in the Washington, D.C. office of WilmerHale LLP; Thomas Sprankling is a counsel in the Palo Alto office.