Legal authorities on governmental authority

Summary

The Suspension Clause names the source of a qualifying order as 'an appropriate governmental authority' and defines neither word. Congress enumerated governments only in 2301(f) / 3134(f), which excludes 'the Government of the United States, the government of any State or political subdivision thereof, or any agency or instrumentality of any of the foregoing' from claiming the credit, thereby classifying subdivisions, agencies and instrumentalities as governmental. Notice 2021-20 Q&A-10 (at 927-28) lists 'orders, proclamations, or decrees from the Federal government or any State or local government,' names mayors, governors, 'a local official' and 'a local health department,' lists a State shelter-in-place proclamation to residents, and states that the character of an order 'is determined without regard to the level of enforcement.' Q&A-3 (926) treats tribal governments as eligible governments; Q&A-4 (926) brings territorial employers within the credit; Q&A-2 (926) supplies the Service's instrumentality test. The United States described Q&A-10's list as the statute's meaning (Doc. 44 at 12), represented that the Notice 'merely construe[s]' the phrase and adds nothing (Br. for Appellees at 12-13), that it lacks the force of law (Doc. 44 at 19, 24; Br. for Appellees at 58), and that a business may be suspended by an order 'addressing a third party' (Br. for Appellees at 41). The District Court read 'appropriate' as 'especially suitable or compatible: fitting' (Doc. 49 at 13-14) and held the Notice 'carries no force of law and is entitled to no deference' (Doc. 49 at 27). Applying the dictionary meaning, the fitting authority is the one with power over the commerce, travel or meetings the order limited. State statutes delegate that power to governors, health departments, local health officers, boards of health, mayors and county judges (ten representative States in the memorandum; texts saved as LAW-331 to LAW-353, LAW-361, LAW-362); tribes act under inherent sovereignty (Worcester; Santa Clara Pueblo; Merrion; Bay Mills; I.R.C. 7871); territories under Acts of Congress (64 Stat. 319; 48 U.S.C. 731b, 1422, 1591; Flores de Otero); school boards and special districts as political subdivisions and instrumentalities (Mt. Healthy; Lake Country Estates; Tex. Educ. Code 11.151; Cal. Educ. Code 35160; Va. Code 22.1-79; 105 ILCS 5/34-18); bi-state agencies under compacts consented to by Congress (42 Stat. 174; 47 Stat. 308; Hess); licensing boards under State APAs and practice acts; State supreme courts under constitutional administrative authority (Tex. Gov't Code 22.0035(b)); and federal agencies under 42 U.S.C. 264, 265, 247d; 29 U.S.C. 655(c); 49 U.S.C. 114(l)(2); 46 U.S.C. 70002, 70011, 70051; 33 C.F.R. 160.111; 42 U.S.C. 1320b-5; 50 U.S.C. 4511; 8 U.S.C. 1182(f); 19 U.S.C. 1318(b); 42 U.S.C. 5191.