COVID Stay-at-Home Orders: Authority, Enforcement, and Rulings

COVID stay-at-home orders were directives issued mostly by governors and state health officials beginning in March 2020, requiring residents to remain in their homes except for essential activities such as medical care, grocery shopping, and limited outdoor exercise. They shut down wide categories of businesses, carried civil and criminal penalties, and remained the primary tool of pandemic control in most states for weeks or months. They also triggered more than a thousand lawsuits, several landmark Supreme Court rulings, and a nationwide rewrite of state emergency-powers law.

Where the Legal Authority Came From

No federal order required Americans to stay home. The White House described the pandemic response as “locally executed, state managed, and federally supported,” which left the scope and legal basis of orders to each state.¹

The authority came from state emergency-powers statutes, which delegate broad “police powers” from state legislatures to the executive branch once an emergency has been formally declared. These statutes vary widely, but they generally let governors and state health officials take extraordinary measures during a declared emergency, and some allow suspension of certain administrative regulations if compliance would hinder the response.²

The constitutional foundation goes back to the Tenth Amendment, which reserves to states the authority to protect public health and safety. The touchstone precedent is Jacobson v. Massachusetts, the 1905 Supreme Court decision upholding a mandatory smallpox vaccination law, which set the rule that public health orders must be “reasonable” and “necessary” to address a genuine threat.³ Jacobson framed nearly every legal challenge that followed.

When the Orders Started and Ended

Puerto Rico issued the first order in the United States on March 15, 2020. California became the first state to follow, when Governor Gavin Newsom signed Executive Order N-33-20 on March 19, 2020, directing all 40 million residents to stay home except for essential activities. The order was enforceable as a misdemeanor punishable by up to $1,000 in fines or six months in jail.⁴⁵

Other states followed within days. According to a CDC analysis of March 1 through May 31, 2020, 42 states and territories issued mandatory stay-at-home orders and 8 jurisdictions issued only advisories. Six issued no orders at all: American Samoa, Arkansas, Connecticut, Nebraska, North Dakota, and Wyoming.⁶

The unwind began quickly. Alaska rescinded its order on April 24, 2020. By the end of May 2020, 11 jurisdictions had rescinded or let their orders expire, 22 had shifted from mandatory orders to advisory guidance, one had been struck down by its state supreme court, and 8 still had mandatory orders in force.⁶ California kept its order longest among major states; Newsom formally rescinded it through Executive Order N-07-21, signed on June 11, 2021, and the state fully reopened on June 15, 2021.⁷

The federal COVID-19 Public Health Emergency declaration, first issued on January 31, 2020, was renewed repeatedly before expiring on May 11, 2023.⁸ Stay-at-home orders themselves had been gone from most states long before that.

What the Orders Required

The labels varied. Jurisdictions used “stay-at-home order,” “shelter-in-place order,” and “safer-at-home order,” and the terms were not applied consistently. “Safer at home” was generally the least restrictive, sometimes allowing non-essential businesses to operate with capacity limits. “Stay at home” typically limited movement to essential activities like medical visits, groceries, and exercise. “Shelter in place” was described as most restrictive, though in practice jurisdictions using that term still allowed essential errands and transit.⁹

Essential Versus Non-Essential Businesses

Whatever the label, the operative distinction inside each order was between “essential” and “non-essential” businesses. Essential businesses could remain open; everyone else had to close physical operations or shift entirely to remote work.

There was no binding federal definition. Many states drew on a framework published by the Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency, identifying critical infrastructure workers across sectors like healthcare, food and agriculture, energy, and transportation.¹⁰ The CISA guidance was explicitly advisory, so states could adopt, modify, or ignore it.

The result was a patchwork. California and Connecticut largely followed the CISA framework. Pennsylvania prohibited operation of businesses that were not “life sustaining” under a state-issued list. New York created an online portal where businesses could apply for essential designation under its “PAUSE” order.¹ Multi-state businesses could be classified as essential in one state and non-essential in the neighboring one.

Categories treated as essential were broadly similar: hospitals, pharmacies, grocery stores, gas stations, banks, utilities, food production, and law enforcement. Restaurants were typically restricted to takeout and delivery. Non-essential categories commonly included entertainment venues, gyms, bars, movie theaters, bowling alleys, and indoor malls. New York’s order imposed fines of up to $10,000 per violation for noncompliant businesses.¹¹

States That Declined to Issue Orders

Several governors refused to issue mandatory statewide orders. Arkansas Governor Asa Hutchinson pointed to voluntary compliance and job protection. Iowa Governor Kim Reynolds warned of mental health harms including suicide and domestic abuse. Nebraska Governor Pete Ricketts banned gatherings of more than 10 people but stopped short of an order, citing concerns about public fatigue. North Dakota Governor Doug Burgum pointed to his state’s rural character. Utah and Wyoming issued non-binding requests. South Dakota Governor Kristi Noem issued a limited mandate applying only to people over 65 or with chronic conditions in the state’s two hardest-hit counties.¹²

How the Orders Were Enforced

Enforcement was uneven and, in most jurisdictions, deliberately light. Police leaders overwhelmingly favored education and voluntary compliance over arrests. Sacramento County Sheriff Scott Jones said neither his office nor any local police department had “any desire to make any arrests or take anybody to jail for violations of this order.”³

The penalties on the books ranged from civil fines and business license suspensions to misdemeanor jail time. Wisconsin made violations punishable by up to 30 days in jail or a $250 fine. North Carolina classified violations as Class 2 misdemeanors, with a maximum of 60 days for repeat offenders.¹³ Maryland Governor Larry Hogan warned violations could result in arrest and incarceration; in practice, the state received roughly 600 complaints in the weeks after its March 24, 2020, order, leading to just 7 arrests or charges.³

Some enforcement actions were sharply controversial. In Lakewood, New Jersey, police broke up an Orthodox Jewish funeral and charged 15 people. In Tampa, Florida, an evangelical pastor was arrested for holding in-person religious services in defiance of a county mandate.³ Legal observers also flagged “charge stacking,” in which prosecutors added stay-at-home violations on top of other charges. In Indiana, a person arrested for driving under the influence was additionally charged with violating the stay-at-home order, a Class B misdemeanor carrying up to 180 days in jail. In Hawaii, prosecutors used the emergency proclamation to upgrade attempted theft of a car battery from a petty misdemeanor to a Class B felony, raising the potential sentence from 30 days to 10 years.¹⁴

Racial Disparities in Enforcement

Research on arrest data during stay-at-home periods found longstanding racial patterns in policing persisted. A study in the Journal of Urban Health examined Boston, Charleston, Pittsburgh, and San Francisco and found that while overall arrests fell by 39% compared with 2019 averages, the gap between predominantly Black and predominantly white neighborhoods did not narrow. In neighborhoods with the highest percentages of Black residents, arrests fell from 85 to 52 per 100,000 people; in neighborhoods with the lowest percentages, the decline was from 23 to 15 per 100,000.¹⁵

In New York City, a study in Critical Public Health found that after controlling for actual social distancing compliance, a one-standard-deviation increase in the percentage of Black residents in a ZIP code was associated with a 73% increase in COVID-specific criminal court summonses and a 34% increase in public health and nuisance arrests. The authors concluded that COVID-era policing “mirrored the discretionary nature” of the city’s stop-and-frisk program, which had been ruled unconstitutional in 2013.¹⁶

How Courts Responded

More than 1,000 lawsuits were filed between March 2020 and March 2023 challenging pandemic mitigation measures, including stay-at-home orders, business closures, gathering restrictions, and mask and vaccine mandates. Of those, 112 succeeded.¹⁷ The challenges divided into individual-rights claims, separation-of-powers claims, and procedural attacks on executive authority.

Religious Liberty at the Supreme Court

Early on, courts were deferential. In South Bay United Pentecostal Church v. Newsom, decided May 29, 2020, the Supreme Court declined by a 5-4 vote to block California’s attendance limits on houses of worship. Chief Justice John Roberts wrote in a concurrence that officials acting “in areas fraught with medical and scientific uncertainties” deserved “especially broad” latitude and that courts should not “second-guess” public health decisions, so long as restrictions on religious gatherings were comparable to those placed on similar secular activities like concerts, lectures, and sporting events.¹⁸

The posture shifted six months later. In Roman Catholic Diocese of Brooklyn v. Cuomo, decided November 25, 2020, by a 5-4 vote, the Court blocked New York’s 10-person and 25-person capacity limits on houses of worship in designated red and orange zones. The per curiam opinion held that the restrictions violated the Free Exercise Clause because they singled out religious institutions for “especially harsh treatment” while allowing secular businesses such as acupuncture facilities, campgrounds, and garages to operate without comparable caps. The Court applied strict scrutiny and found the rules were not narrowly tailored.¹⁹

In April 2021, the Court extended that reasoning in Tandon v. Newsom, blocking California’s restrictions on in-home Bible study and prayer meetings. The majority held that government regulations are subject to heightened scrutiny whenever they treat any secular activity more favorably than religious exercise, regardless of whether other secular activities are also restricted.²⁰

Separation of Powers in Wisconsin and Michigan

Some challenges attacked the underlying authority of governors and health officials to issue sweeping orders without direct legislative approval. In Wisconsin Legislature v. Palm, decided May 13, 2020, the Wisconsin Supreme Court struck down Emergency Order #28, the state’s “Safer at Home” order. The 4-3 majority held that the order was a “rule” under state administrative law because it applied generally to all persons in Wisconsin, and that the Department of Health Services had failed to follow required rulemaking procedures. The court also found the order exceeded the department’s statutory authority, rejecting the argument that state law gave an unconfirmed cabinet secretary an “open-ended grant of police powers” to confine citizens to their homes.²¹

Michigan followed a similar path. On October 2, 2020, the Michigan Supreme Court held in Midwest Institute of Health v. Governor of Michigan that Governor Gretchen Whitmer had lacked authority to issue COVID-19 emergency orders after April 30, 2020, because the Emergency Management Act required legislative approval for extensions beyond 28 days. In a separate 4-3 holding, the court declared the Emergency Powers of the Governor Act unconstitutional as an improper delegation of legislative authority. Michigan’s attorney general then announced that the governor’s executive orders would no longer be enforced through criminal prosecution.²²

Public Health and Economic Effects

Peer-reviewed research has generally found the orders reduced mobility and slowed COVID-19 transmission, with meaningful qualifications. A study in Nature Communications found that shelter-in-place mandates produced a 29% reduction in time spent away from residences, on top of reductions already achieved by earlier emergency declarations and voluntary distancing. Restrictions on bars and restaurants were the most impactful single intervention, associated with a 25.8% reduction in time away from home. A 10% reduction in mobility was associated with a 17.5% decrease in new cases two weeks later.²³

Effects were uneven across geography. A BMJ Open study of 3,142 U.S. counties found that stay-at-home orders slowed case growth in both rural and urban areas but were substantially more effective in urban counties. Rural counties implemented orders later, kept them in place for shorter periods (a median of 35 days versus 54 days in urban areas), and saw smaller mobility reductions.²⁴

The economic damage was immediate and severe. The U.S. economy lost 22 million jobs between February and April 2020, the largest employment collapse since World War II. The number of unemployed Americans rose from 6 million in February to 23 million in April, and the unemployment rate peaked at 14.8%.²⁵²⁶ A study in The Review of Economics and Statistics estimated that each week of exposure to a stay-at-home order increased a state’s weekly initial unemployment insurance claims by 1.9% of its employment level. Of the 17 million unemployment claims filed between March 14 and April 4, 2020, roughly 4 million were directly attributable to stay-at-home orders.²⁷

Small businesses bore a disproportionate share of the loss. Active small business owners declined by 3.3 million (22%) between February and April 2020, the largest drop on record. African-American business owners saw a 41% drop, immigrant business owners a 36% drop, and Latin-American business owners a 32% drop.²⁵

Federal Reserve Bank of St. Louis researchers found that states with stricter containment measures experienced greater initial employment losses but also saw faster labor market recoveries from July through October 2020, characterizing the damage as a “transitory short-term economic shock.”²⁶ Bureau of Labor Statistics research also concluded that mandatory social distancing measures had a “relatively small effect on employment recovery” compared with the virus itself, suggesting depressed consumer demand for in-person services would have caused significant damage regardless of whether formal orders were in place.²⁵

What States Changed Afterward

The political backlash produced a wave of legislation that reshaped emergency-powers law. Between 2020 and 2021, state legislatures introduced more than 750 bills to limit the emergency powers of governors and health officials. At least 70 passed, and at least 25 states enacted laws restricting public health authority.²⁸

The reforms took several forms:

Duration limits on emergency declarations. Montana set a 21-day limit unless the legislature voted to extend, and Wyoming limited orders restricting movement to 10 days.
New legislative oversight. Arkansas, Kansas, Ohio, and Utah created committees or councils with authority to review, revoke, or terminate executive emergency orders.
Scope restrictions. North Dakota confined health-official orders to defined geographic areas and prohibited mask mandates. Idaho narrowed quarantine authority to persons known to have been exposed to disease. Arizona barred state agencies from revoking business licenses without clear evidence a business caused disease transmission.
Constitutional and categorical protections. At least seven states enacted laws shielding religious facilities or firearm sales from emergency restrictions.²⁸

Pennsylvania went furthest. On May 18, 2021, voters approved two constitutional amendments by 53-to-47 percent margins. The first allowed a simple majority of the state legislature to terminate a disaster declaration at any time, eliminating the prior requirement of the governor’s consent or a two-thirds legislative vote. The second reduced the maximum duration of an emergency declaration from 90 days to 21 days and transferred authority to extend declarations from the governor to the legislature.²⁹

An analysis of 65 laws adopted in 24 states between 2021 and 2023 found that 11 states restricted the ability to limit religious gatherings, 7 limited business closures, 5 prohibited mask mandates, and 4 prohibited vaccine mandates or proof-of-vaccination requirements. Three states enacted provisions allowing state officials to decline enforcement of federal orders they deem unconstitutional, and several adopted preemption rules barring local governments from enacting measures stricter than the state’s own.³⁰ Public health researchers have said these changes could constrain the speed and scope of response in a future outbreak.

1
Kelley Drye & Warren LLP. Essential Services or Critical Infrastructure and Navigating Compliance With State Stay-at-Home Orders
2
New England Journal of Medicine. Public Health and the Phage of Law
3
PBS NewsHour. Most States Have Issued Stay-at-Home Orders, but Enforcement Varies Widely
4
Office of Governor Gavin Newsom. Governor Gavin Newsom Issues Stay at Home Order
5
CalMatters. California Coronavirus Shelter-in-Place Order
6
Centers for Disease Control and Prevention. Timing of State and Territorial COVID-19 Stay-at-Home Orders and Changes in Population Movement
7
Office of Governor Gavin Newsom. As California Fully Reopens, Governor Newsom Announces Plans to Lift Pandemic Executive Orders
8
Centers for Disease Control and Prevention. End of the Federal COVID-19 Public Health Emergency
9
National League of Cities. What’s the Difference Between Shelter-in-Place, Safer-at-Home, and Stay-Home Orders
10
CISA. Guidance on the Essential Critical Infrastructure Workforce, Version 2.0
11
New York State Department of Labor. Guidance for Determining Whether a Business Enterprise is Subject to a Workforce Reduction Under Executive Order 202.6
12
KY3. Holdout Governors: Why Some Say Their States Don’t Need Stay-at-Home Order
13
UNC School of Government. Stay-at-Home Orders, Charges, and Stops
14
Center for American Progress. Enforcement of COVID-19 Stay-Home Orders
15
CUNY Stone Center. How Did Stay-at-Home Orders During COVID Affect Racial Disparities in Arrest Rates
16
Columbia University Mailman School of Public Health. NYPD Enforcement of COVID Mandates Reproduced Familiar Pattern of Racial Disparities
17
Stanford University Health Policy. U.S. Court Rulings Constrain Public Health Powers During COVID-19 Pandemic
18
Legal Information Institute. South Bay United Pentecostal Church v. Newsom
19
Supreme Court of the United States. Roman Catholic Diocese of Brooklyn v. Cuomo
20
SCOTUSblog. Divided Court Blocks California’s COVID-Related Restrictions on In-Home Religious Gatherings
21
Justia. Wisconsin Legislature v. Andrea Palm
22
Miller Canfield. State of Emergency Resources
23
Nature. Impacts of Social Distancing Policies on Mobility and COVID-19 Case Growth in the US
24
BMJ Open. Association of Stay-at-Home Orders and COVID-19 Incidence and Mortality in Rural and Urban United States
25
Bureau of Labor Statistics. Employment Recovery in the Wake of the COVID-19 Pandemic
26
Federal Reserve Bank of St. Louis. How COVID-19 Containment Measures Affected Unemployment
27
MIT Press. Unemployment Effects of Stay-at-Home Orders
28
National Library of Medicine. State Legislative Action on Public Health Emergency Powers
29
Spotlight PA. Pennsylvania Ballot Question Disaster Declaration Results
30
Stanford University Health Policy. States Adopt Legal Reforms Undercutting Public Health Emergency Powers