How Federalism Operates in the United States Today

Understanding of the Legal Framework in the United States

Public safety officials have a fundamental responsibility to develop a comprehensive understanding of the legal framework that is in place in the United States in order to fulfill their mission and facilitate their responses to threats to public safety. To this end, the purpose of this paper is to provide a review of the scholarly literature to explain the concept of federalism and police powers as well as describing a fact-based scenario related to a quarantine in response to a pandemic situation. Finally, the paper provides a summary of the findings that emerged from the research concerning these issues in the conclusion.

Federalism

The term “federalism” is used to refer to the manner in which power is divided and shared between the national and state governments in the United States. According to information about federalism provided by the U.S. Library of Congress, “By allocating power among state and federal governments, the Framers sought to establish a unified national government of limited powers while maintaining a distinct sphere of autonomy in which state governments could exercise a general police power” (Federalism and the Constitution, 2023, para. 4).

The concept of “police power” is examined further in the section following below, but the constitutional basis for American federalism and police power is contained in the Tenth Amendment to the U.S. Constitution, which states in part that the “powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states or to the people.” The Tenth Amendment, together with other constitutional provisions including the Supremacy Clause in Article VI that states that federal law is superior to state law and the Commerce Clause contained in Article I, Section 8, Clause 3, which assigns the U.S. Congress with the power to enact legislation concerning issues involving interstate commerce, establish the legal framework for the balance of power between the federal government and the state governments (Federalism and the Constitution, 2023).

These constitutional principles and provisions assign the federal and state governments with the specific powers to initiate and administer responses to public safety issues. Some salient examples of federalism that have specific applicability to the field of public safety include law enforcement responsibilities where the Federal Bureau of Investigation and the Drug Enforcement Agency are tasked with the enforcement of federal laws while local police officers and sheriffs are generally responsible for the enforcement of local and state laws (Vilá et al., 2022).

In addition, another relevant example of federalism is the different responsibilities for emergency management responses that exist between state and federal governments. For instance, on the one hand, the federal government’s Federal Emergency Management Agency has primary responsibilities for the provision of resources and assistance in response to natural and anthropogenic disasters. On the other hand, local and state governments are responsible for mounting on-the-ground responses to these emergency events (Vilá et al., 2022). These differences also mean that post-disaster responses are the primary responsibilities of local and state organizations, while the role of federal government is focused mainly on providing timely support to facilitate the community recovery process (Olshansky & Johnson, 2014).

Police Powers

At first blush, any reference to “police powers” suggests the active involvement of law enforcement authorities exercising their authority for some legitimate purpose only, but this is not the case. For instance, according to the guidance provided by Cornell Law School’s Legal Information Institute:

Police powers are the fundamental ability of a government to enact laws to coerce its citizenry for the public good, although the term eludes an exact definition. The term does not directly relate to the common connotation of police as officers charged with maintaining public order, but rather to broad governmental regulatory power. (Police powers, 2023, para. 3)

It is important to note, however, that the term “police powers” does include a law enforcement component. As noted above, the federalism principles contained in the U.S. Constitution in general and the Tenth Amendment in particular empower local and state governments to “establish a special department of police [and] adopt such laws and regulations as tend to prevent the commission of fraud and crime, and secure generally the comfort, safety, morals, health, and prosperity of its citizens by preserving the public order …” (Black’s Law Dictionary, 1991, p. 1156). One area in which many if not most Americans have recently experienced the exercise of police powers was the nationwide quarantine that was implemented in response to the early stages of the ongoing Covid-19 pandemic and these issues are discussed further below as they relate to a similar fact situation.

Pandemic-Related Quarantine Fact Scenario

The implementation of a quarantine is an exercise of an American government’s constitutional police power authority since it involves the “right of the state to take action affecting individuals for the benefit of society” (Legal Authorities for Isolation and Quarantine, 2023, para. 6). The federal government’s authority to implement a quarantine for whatever purpose is contained in the Commerce Clause of the U.S. Constitution (Legal Authorities for Isolation and Quarantine, 2023). In addition, pursuant to section 361, Public Health Service Act (42 U.S. Code § 264), the U.S. Secretary of Health and Human Services is also empowered to exercise whatever actions are necessary to prohibit the entry of communicable diseases by travelers from other countries (Legal Authorities for Isolation and Quarantine, 2023).

In the event an American state needs additional assistance from the federal government, these resources would be limited to the provision of resources and support, but cannot include the U.S. “regular” military for law enforcement. This is because there are some limitations imposed on the use of the U.S. armed forces which prevent them from being used for domestic law enforcement purposes. In this regard, McGrane (2010) reports that, “The Posse Comitatus Act prevents members of the military from performing those law enforcement tasks that are traditionally handled by police and other domestic law enforcement officials—tasks like conducting investigations into alleged criminal activity and arresting suspected criminals” (p. 1310).

Some of the legal factors and limitations that would need to be taken into account by local government officials when considering a quarantine include ensuring that the governmental entity possesses the authority to do so. In addition, other legal factors would include the need to ensure that any steps taken to implement and administer a quarantine do not inordinately affect already vulnerable populations such as the elderly and disabled or impoverished ethnic minorities that may lack the financial resources they need to weather a lengthy lockdown (Methven, 2022).

Conclusion

The concept of federalism as applied to the United States refers to the separation of various legal powers between the federal, state and local governments. Although federal law supersedes local and state laws, the Tenth Amendment makes it clear that any rights that are not specifically assigned to the federal government are reserved to the states and the American people. The research also showed that police powers are also included in the Tenth Amendment which authorize local and state governments to create and maintain a law enforcement authority to preserve order and protect the interests of American citizens and the federal government’s exercise of broad regulatory power. Finally, the fact-based scenario related to a quarantine in response to a pandemic situation showed that there are some factors that must be considered, including most especially the need to ensure the legal authority to implement a quarantine and to avoid measures that will adversely affect already vulnerable population groups.