Amid the COVID-19 pandemic, state and local governments with sometimes overlapping jurisdiction are overlaying a quilt of edicts upon businesses and individuals—it is the ultimate laboratory for a host of preemption and federalism questions.
In California, localities led the way with mandates, but the Governor’s Executive Order has left confusion in its wake on the extent to which local rules are preempted.
State-level guidance on preemption went from silence Thursday, to acknowledgment of stricter local regulations Friday, to the bare statement “this is a statewide order” midday Saturday—all evidenced by unmarked amendments to a website.

Justice Louis Brandeis famously observed that a “state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” (New State Ice Co. v. Liebmann, 285 U.S. 262 (1932)). The current circumstances are hardly the choice of citizens. But were he here today, the Justice would behold a laboratory of CDC proportions, with governments across the country and around the globe enacting regulations designed to contain the COVID-19 outbreak and safeguard the health of their constituents. These laws are testing the limits of federalism and state-local governance in the public health arena—perhaps nowhere more so than California.

Declarations of public emergency and of epidemic or pandemic status were made in February and March to trigger the availability of a variety of federal, state and local resources. In California, the first orders of a mandatory character affecting the general public were imposed at the county level. On March 16, six San Francisco Bay Area counties and the city of Berkeley (with a health department separate from Alameda County) issued public health orders directing sheltering in place for all but essential infrastructure and essential business operations. These seven orders were essentially identical in substance, contained detailed definitions, and were accompanied by online frequently asked question (FAQ) discussions that have been updated. Other counties followed with orders, some of which had mandates and others of which provided advisories and recommendations. On Thursday afternoon, March 19, Los Angeles County issued its public health order with mandates using different restrictions than those in the Bay Area.  

Minutes later, Gov. Gavin Newsom issued statewide Executive Order N-33-20. The Order directs all residents of the state to stay home except as needed to maintain infrastructure sectors defined by the federal Department of Homeland Security (DHS). The state Health Officer (Dr. Sonia Y. Angell, who is also director of the California Department of Public Health) is authorized to define “additional” excepted worker and workplace categories. The order also provides that persons in those occupations, or leaving home to access such necessities as food, prescriptions and health care, should observe social distancing and sanitizing recommendations. The state Office of Emergency Services (OES) is directed to ensure compliance, up to and including use of a statute with criminal penalties (California Government Code section 8665).

The question of coexistence or preemption of the local orders was answered in a slow reveal—and then abruptly reopened. The Executive Order was silent on the subject. Midday Friday, March 20, the Mayor’s Office of the City and County of San Francisco tweeted that it considered the orders complementary. Friday evening, the State updated the COVID-19 Stay at Home Order FAQ online website to say that stricter local regulations still apply “depending on the conditions in their area,” but not looser local regulations. Seventeen hours later, on Saturday afternoon, the FAQ was amended to say only that “this is a statewide order,” with no guidance on the status of local regulations, stricter or otherwise. None of these amendments is shown by comparison, and no archive of earlier versions is made available; one would only notice them from frequent visitation. More is obviously to come on this critical issue.

At the same time, the FAQ was amended to include a link to a document issued by the Public Health Officer defining “Essential Critical Infrastructure Workers.” This document is based on the document issued March 19 by DHS’s Cybersecurity and Infrastructure Security Agency (CISA) setting out a definition with the exact same name, but with significant textual changes. A comparison of the Public Health Officer’s document to the definition in the CISA March 19 document is available here.

At the moment, then, employers and employees in California are blanketed by a quilt of state and local regulations defining whether and for what purposes they should leave their homes. At this point, local orders with mandates have been enacted by at least 41 of the 58 counties. A complete listing of those counties and links to their separate orders and directives is attached to this Client Alert. 

The counties are joined by mandatory orders of cities. Most of these cities lie outside the jurisdiction of the health departments of their counties so conflicts at that level should be minimized, but others may have overlapping jurisdiction. Berkeley, Beverly Hills, Long Beach, Palm Springs and Santa Monica have all issued city-level orders, links to which can be found in an attachment to this Client Alert. At least one Native American tribe has issued an order. California local governments with police powers sometimes overlap, so some residents may face tertiary and quaternary regulation.

In many of these jurisdictions, a representative has been designated to answer questions about the coverage of the local regulations. At the state level, the Health Officer or OES may be equipped to do so. Companies or their legal counsel can seek clarification on an identified or blind-call basis.

That is just the story today. The localities may amend or further interpret their orders, and new localities may seek to enter the arena. DHS may, among other things, revise the very CISA document that has been incorporated by reference into the State’s Stay at Home Order and the similar orders of other states. We expect that the CISA document will be frequently updated. Presumably, as soon as the document that is linked in these state orders is modified by the federal government, the laws of these states that incorporated it will be modified—whether automatically or by amendment by the issuing executive, is left to be seen. This is an extraordinary time for the rule of law, when all citizens must keep advised of rapidly changing and electronically disseminated pronouncements affecting how they live and work.

For more information, please reach out to your regular Pillsbury contact or the authors of this Client Alert.

The authors thank Michelle A. Herrera and Margaret Beale-Wirsing for their research assistance.

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