The governmental orders by layer
The orders that reached the retail trade came from every layer of government with power over the store, the shopper, the shipment and the worker: the President and the federal agencies; the fifty governors, State health officers and State legislatures; the county health officers, mayors and county judges of the largest metropolitan areas; the sector regulators of price, safety, licensing and the ports; and the authorities that governed the industry's counterparties. This section inventories them by layer, with exhibit identifiers, so that the six-quarters section can apply them quarter by quarter and the function-by-function section function by function. The fifty-State passage states the pattern, the dates and the lead instruments by region; the fifty-one-row table on this page carries every jurisdiction. In this analysis the "Service" is the Internal Revenue Service; the "United States" is the Government as litigant, the defendant and appellee in Stenson Tamaddon, LLC v. IRS, No. 2:24-cv-01123-SPL (D. Ariz.), appeal No. 25-4217 (9th Cir.), and the defendant in Tri-State Memorial Hospital v. United States, No. 2:25-cv-0181-TOR, ECF No. 38 (E.D. Wash. May 28, 2026) ("Tri-State"); the "Notice" is Notice 2021-20, 2021-11 I.R.B. 922; the "Suspension Clause" is CARES Act § 2301(c)(2)(A)(ii)(I) and I.R.C. § 3134(c)(2)(A)(ii)(I), read element by element on the statute page; the "Library" is this site's Orders Library; and "Ex." followed by an identifier is an exhibit in the Library.
The universe
The governmental response to COVID-19 was the densest body of governmental commands on commerce, travel and assembly in the nation's history, and every count of it is a floor. By May 31, 2020, according to the Centers for Disease Control and Prevention, forty-two States and territories had issued mandatory stay-at-home orders reaching 2,355 of the nation's 3,233 counties, and "most jurisdictions issued multiple orders."23 The Council of State Governments counted 2,065 executive orders issued by governors and State agencies between February 2020 and June 29, 2020 alone, before four of the six claimable quarters had begun.24 The Department of Health and Human Services' own dataset records 4,218 State and county policy-order entries between March 23, 2020 and August 31, 2021, and its curators stopped coding in the spring of 2021, so the figure is a floor for 2020 and no measure of 2021.25 The COVID AMP database catalogued nearly 50,000 policy measures worldwide, including more than 20,000 at the United States national and State level, 95 percent of them issued before November 23, 2021, and approximately 8,000 issued by United States counties.26 On September 21, 2021, twenty-five States and the District kept emergency declarations in force and eleven kept statewide indoor face-covering requirements, the airborne-transmission control most jurisdictions retained longest, in force.27 The Library's count of indexed instruments is the number of instruments The COVID Project has retrieved and indexed; it is not, and is not offered as, a count of the orders that reached any employer or of the orders issued nationally, which the sources above place in the tens of thousands.
The Government's own attribution
The Bureau of Economic Analysis attributed the largest quarterly decline in gross domestic product on record, 32.9 percent at an annual rate in the second quarter of 2020, to "the response to COVID-19, as 'stay-at-home' orders issued in March and April were partially lifted in some areas of the country in May and June."28 The Comptroller General wrote that "millions have lost their jobs due to stay-at-home orders and business closures" and that "[w]idespread business closures led to immediate and substantial job losses."29 The Federal Reserve's Beige Book of May 27, 2020 records that "[c]onsumer spending fell further as mandated closures of retail establishments remained largely in place during most of the survey period," and its Beige Book of December 2, 2020 records "mandated restrictions (recent and prospective)" as the cause of the November slowdown.30 The Bureau of Labor Statistics found that 19 percent of establishments, 1.6 million of them, "experienced a government-mandated closure" between July 20 and September 30, 2020.31 The position that few orders existed is not a close call on a contested record; it cannot be squared with the Government's own datasets.
The federal layer
The run-up and the second quarter of 2020
Wages paid after March 12, 2020 belong to the second quarter of 2020, and the federal instruments of March 13 through June 30, 2020 belong to its proof. The President proclaimed the national emergency "beginning March 1, 2020" on March 13 (a predicate, cited as such and never as an order) and suspended entry from China, Iran, the Schengen Area, the United Kingdom, Ireland and Brazil by a chain of proclamations that ran, without interruption, to November 8, 2021.32 The Department of Homeland Security closed the Canadian and Mexican land borders to all but "essential travel" at 11:59 p.m. on March 20, 2020 and renewed the prohibition monthly, on April 22, May 22 and June 24, 2020, and every month thereafter.33 The Families First Coronavirus Response Act's leave mandate became operational April 1, 2020 and bound every retailer under 500 employees to provide paid leave to any employee "subject to a Federal, State, or local quarantine or isolation order related to COVID-19" or whose child's "school or place of care" had "been closed," through December 31, 2020.34 The President delegated Defense Production Act allocation and anti-hoarding authority on March 18, 23 and 27, 2020; the Secretary of Health and Human Services designated fifteen categories of respirators, masks, gloves, gowns, sanitizers and disinfectants as scarce materials effective March 25, 2020, making their accumulation above reasonable demand or resale above prevailing prices a federal crime by any person, retailer included; and FEMA forbade the export of five categories of personal protective equipment without federal allocation from April 7, 2020.35 The Cybersecurity and Infrastructure Security Agency's Essential Critical Infrastructure Workforce guidance, "advisory in nature" by its own words and never cited as an order, was issued March 19, 2020 and revised March 28, April 17 and May 19, 2020; every State closure order that defined the stores permitted to open did so by reference to it, which is why an "essential" designation was the premise of the conditions those orders imposed and never an exemption from them.36 Customs and Border Protection postponed duty deposits ninety days for importers with "significant financial hardship" on April 20, 2020, a relief measure cited as context that describes the condition of the importing retailer.37 The State Department cancelled every routine visa appointment in the world as of March 20, 2020; USCIS closed its offices to the public from March 18; the Office of Management and Budget moved the federal workforce to maximum telework and screened every visitor to a federal building.38
The third and fourth quarters of 2020
The proclamations continued; DHS renewed the border prohibition on July 22, August 21, September 23, October 22, November 23 and December 22, 2020; the FFCRA mandate ran to December 31, 2020; FEMA extended the export rule on August 10 and December 31, 2020; HHS extended the scarce-materials designation on July 23, 2020 and corrected its expiry to January 19, 2021 on December 23, 2020; the CDC ordered on September 1, 2020 that a landlord "shall not evict any covered person from any residential property" in any jurisdiction without an equal moratorium, on pain of criminal fines; and the first pre-departure testing order took effect December 28, 2020.39
The first and second quarters of 2021
The new Administration continued every restriction and added the transport layer. Proclamation 10143 of January 25, 2021 continued the Schengen, British, Irish and Brazilian suspensions without interruption and added South Africa; Proclamation 10199 added India effective May 4, 2021.40 The CDC's conveyance order, the federal airborne-transmission control on every commute and business trip, took effect at 11:59 p.m. on February 1, 2021 "until further notice": "Persons must wear masks over the mouth and nose when traveling on conveyances into and within the United States," and every conveyance operator "must require all persons onboard to wear masks for the duration of travel," enforced by criminal fines; the Transportation Security Administration's Security Directive 1582/84-21-01 required every transit agency, railroad and bus company from February 1 to give notice that "Federal law requires wearing a mask," to refuse boarding and to remove violators, and its successor 1582/84-21-01A (announced April 30, 2021) carried the requirement, "including those already vaccinated," from May 12 to September 13, 2021.41 The CDC's global pre-departure testing order took effect January 26, 2021.42 Executive Order 13991 required masks and distancing of every person in federal buildings from January 20, 2021, and OMB M-21-15 capped federal workplaces at 25 percent occupancy to June 10, 2021.43 HHS extended the scarce-materials designation on February 1, 2021 to June 30, 2021, adding syringes; the President found in Executive Order 14017 of February 24, 2021 that the pandemic had exposed the fragility of the nation's supply chains and opened the 100-day review that reported June 8, 2021; OSHA launched its National Emphasis Program on March 12, 2021; DHS renewed the border prohibition on January 19, February 23, March 19, April 22, May 24 and June 23, 2021; and OSHA's COVID-19 Healthcare Emergency Temporary Standard took effect June 21, 2021, reaching in-store clinics and vaccination services outside the retail-dispensing exception of 29 C.F.R. § 1910.502(a)(2).44
The third quarter of 2021
The federal layer tightened rather than lifted. HHS extended the scarce-materials designation on July 7, 2021 with effect from July 1 through November 15, 2021; OSHA revised its National Emphasis Program on July 7, 2021, naming supermarkets and other grocery stores (NAICS 445110), department stores (452210) and warehouse clubs and supercenters (452311) among the industries targeted for programmed inspection; DHS renewed the border prohibition on July 22, August 23 and September 22, 2021; the Safer Federal Workforce Task Force reinstated masks, as one of its occupational-health controls, in every federal building for all persons regardless of vaccination status in areas of substantial or high transmission on July 27 to 29, 2021, required that "employees and onsite contractors must sign an attestation confirming their vaccination status," and required that "[v]isitors must provide information on their vaccination status"; the CDC re-imposed an eviction moratorium in counties of substantial or high transmission from August 3 to August 26, 2021; TSA announced Security Directive 1582/84-21-01B on August 20, 2021, effective September 14, 2021 to January 18, 2022; the President signed Executive Orders 14042 and 14043 on September 9, 2021, reciting that the public health emergency and the national emergency remained in effect; and Commerce solicited data on "the current semiconductor shortage" on September 24, 2021.45 Every one of those instruments is inventoried, with its days of the quarter, in the six-quarters section.
The fifty States
The pattern
Retail was the first sector the closure orders named, and no reopening order restored it at once: every release was a capacity order with a date, and the last of those steps took effect between March 10 and July 1, 2021. Between March 16 and April 7, 2020, forty-three of the fifty-one jurisdictions closed non-essential retail premises to the public by category or by an essential list; the eight that issued no categorical closure (Arkansas, Iowa, Missouri, Nebraska, North Dakota, South Dakota, Utah at the State level and Wyoming) imposed binding conditions on the sales floor instead, from Missouri's 25 and 10 percent occupancy caps to Iowa's closures of clothing, furniture, jewelry, toy and music stores and malls, Arkansas's mandatory protocols, Utah's county closures and one-person-per-100-square-feet rule, South Dakota's municipal customer caps and Nebraska's, North Dakota's and Wyoming's mandatory disinfection and distancing conditions.46 The reopenings were not restorations; they were capacity orders, at 20, 25, 30, 33, 50, 60 and 75 percent, at four, five or eight customers per 1,000 square feet, at one customer per 100 or 300 square feet, at ten patrons, or at one adult per household, each with a date. By June 30, 2020 in-store retail had reopened in every closure State under such a cap. The third quarter of 2020 kept the caps and added, in thirty-four States and the District, workplace infection-prevention and exposure-control requirements that conditioned every customer's entry on a face covering the retailer was made to enforce beside the capacity and distancing conditions of the same reopening orders. The winter of 2020-21 re-tightened them. The spring of 2021 withdrew them State by State on dates from March 10 (Texas) to July 1, 2021 (New Mexico), and Hawaii never withdrew its regime before September 30, 2021. The third quarter of 2021 reinstated, statewide in seven jurisdictions and locally in dozens, the airborne-transmission control of universal indoor face coverings with the business as enforcer at its door.
The Northeast
New Jersey moved first and released last: EO 104 curfewed non-essential retail from 8:00 p.m. to 5:00 a.m. and capped gatherings at fifty on March 16, 2020; EO 107 closed "the brick-and-mortar premises of all non-essential retail businesses" and every indoor mall at 9:00 p.m. March 21; EO 108 the same day invalidated every county and municipal restriction on essential-retail lists, business scope and hours, so that the State order was the sole retail regime; EO 122 capped essential retail at 50 percent from 8:00 p.m. April 10 under workplace infection-prevention conditions that included mandatory face coverings and gloves; EO 142 permitted curbside pickup at non-essential retail from 6:00 a.m. May 18; EO 150 reopened in-person retail at 50 percent June 15 and EO 157 (June 26, operative on issuance for retail; its indoor-dining and indoor-recreation paragraphs from 6:00 a.m. July 2) consolidated the exposure-control conditions (50 percent, senior hours, barriers, contactless payment, face coverings and gloves); EO 195 permitted municipal evening curfews from November 12, 2020 to May 28, 2021; EO 239 removed the percentage cap May 19, 2021 and EO 242 restored full capacity and ended public masking at 6:00 a.m. May 28, 2021, while EO 242 ¶ 18 preserved municipal and county power to impose indoor mask requirements and carried EO 192's worksite rules for unvaccinated workers into the third quarter.47 New York closed enclosed malls over 100,000 square feet at 8:00 p.m. March 19, 2020 (EO 202.5), reduced every non-essential in-person workforce to zero at 8:00 p.m. March 22 (EO 202.8), and permitted non-essential retailers only remote-order fulfillment with one employee on site; curbside returned in Phase One from May 15, in-store shopping at 50 percent in Phase Two from May 29 (New York City June 22), malls at 50 percent upstate from July 10 with HVAC filtration conditions and in New York City on September 9, 2020; the caps ended May 19, 2021; and from June 23, 2021 10 NYCRR Subpart 66-3 masked every unvaccinated person and every unvaccinated employee in contact with the public at the employer's expense, an occupational-health control the employer was made to supply, to August 27, 2021, when 10 NYCRR 2.60 and the Commissioner's Determination on Indoor Masking succeeded it.48 Pennsylvania closed every business that was "not life-sustaining" on March 19, 2020 under a NAICS-coded list that closed non-food retail; the Secretary of Health's Worker Safety Order capped open retail at 50 percent from 8:00 p.m. April 19, 2020 under workplace infection-prevention requirements that included face coverings for employees and customers, distancing, cleaning and employee screening; the green phase permitted 75 percent; the November 23 and 27, 2020 orders set 75 percent and mandatory telework; the Limited-Time Mitigation Order cut retail to 50 percent from December 12, 2020 to 8:00 a.m. January 4, 2021; 75 percent returned April 4, 2021; and the mitigation orders expired 12:01 a.m. May 31, 2021.49 Massachusetts closed non-essential workplaces to "workers, customers and the public" at noon March 24, 2020 and kept retail closed to the public to June 8, 2020 with curbside from May 25; Order No. 31 required face coverings in every store from May 6, 2020, an airborne-transmission control on every public place where distancing was not possible; Order No. 59 cut retail to 25 percent from December 26, 2020 to February 8, 2021, and 40 percent ran to May 29, 2021, when Order No. 69 rescinded every order.50 Connecticut closed its ten large malls at 8:00 p.m. March 19, 2020 (EO 7F) and non-essential retail at 8:00 p.m. March 23 (EO 7H); Safe Stores rules bound the open stores from April 3; retail and malls reopened at 50 percent May 20, 2020 under binding Sector Rules that ran to March 18, 2021 and were repealed May 20, 2021; EO 12A (Ex. CT-045) masked the unvaccinated indoors, an airborne-transmission control enforced by fines on the employer, to August 5, 2021, EO 13A authorized municipal universal mask orders, and EO 14A (September 30, 2021; Ex. CT-058) continued the regime to February 15, 2022.51 Rhode Island closed non-critical retail from March 30, 2020 and compelled the telework of "business service personnel that can work from home"; retail reopened May 9, 2020 at one customer per 300 square feet, was cut to one per 100 square feet with posted capacity plans and closed dressing rooms from November 30, 2020 through the spring of 2021, reached 80 percent May 7, 2021, and was released May 21, 2021; the Department of Health's regulation, 216-RICR-50-15-7 (Exs. RI-069, RI-070, RI-071), required face coverings of the unvaccinated in every establishment to August 31, 2021 as one of the exposure controls of its Safe Activities rules.52 Maine closed non-essential public-facing retail at 12:01 a.m. March 25, 2020, capped essential stores at five to 100 customers by square footage from April 2 and at five per 1,000 square feet from June 16, required large retailers to enforce customer masking from July 8, 2020 and every indoor public space to refuse the unmasked from December 11, 2020, airborne-transmission controls with the business as enforcer, set 50 percent from March 26, 2021 and lifted the limits May 24, 2021.53 Vermont suspended non-critical retail at 5:00 p.m. March 25, 2020 and confined even critical retail to curbside "to the extent possible," permitted curbside for all from April 20 and in-store at agency limits from May 18, set 50 percent or one per 100 square feet June 26, 2020, required customers' face coverings from August 1, 2020 as one of the airborne-transmission controls the State placed on every indoor public space, and lifted the limits June 14, 2021.54 New Hampshire closed non-essential retail March 27, 2020, reopened it May 11 at 50 percent under mandatory guidelines that included masked staff, required face coverings in every store from November 20, 2020 to April 16, 2021 as an airborne-transmission control where distancing was not possible, and kept its mandatory guidelines to May 7, 2021.55
The Midwest
Michigan closed non-essential retail from 12:01 a.m. March 24, 2020 (EO 2020-21) and on April 9 (EO 2020-42) limited every open store over 50,000 square feet to four customers per 1,000 square feet, closed their carpet, furniture, garden and paint departments and barred the advertising of non-essential goods from April 13; retail by appointment returned May 26, in-store at 25 percent June 4, 2020; MDHHS cut retail to 30 percent from November 18, 2020, restored 50 percent March 5, 2021 and ended the limits June 22, 2021; businesses were required to refuse entry to the unmasked from July 10, 2020, one of the exposure-control duties the State placed on every open business.56 Illinois closed non-essential retail except minimum basic operations from March 21, 2020, confined it to telephone and online orders with pickup outside the store from May 1 to 29, reopened at 50 percent or square-footage limits May 29, 2020, cut it to 25 percent (grocery 50) under Tier 3 from November 20, 2020, set 60 percent May 14, 2021 and lifted the cap June 11, 2021; EO 2021-20 restored universal indoor face coverings in every store from August 30, 2021 as the airborne-transmission control of the Delta period, with the employer's duty to enforce it on staff restated September 3.57 Ohio closed non-essential retail from March 23, 2020, reopened it May 12 under mandatory checklists, required face coverings statewide July 23, 2020 as an airborne-transmission control on every indoor place open to the public, conditioned every retailer's right to "be open for business or operate" on compliance with the facial-covering and distancing conditions of the Retail Compliance order from November 16, 2020 with a Retail Compliance Unit and a twenty-four-hour closure sanction, closed retail from 10:00 p.m. to 5:00 a.m. from November 19, 2020 to February 11, 2021, and rescinded the orders June 2, 2021.58 Minnesota closed non-critical retail from March 27, 2020, permitted curbside from 11:59 p.m. May 3, reopened stores and malls at 50 percent from May 18 under certified Preparedness Plans, required face coverings in every indoor business from July 25, 2020 to May 14, 2021 beside the Plans' screening, distancing and cleaning duties, and ended the limits 11:59 p.m. May 27, 2021.59 Indiana required non-essential retail to cease except minimum basic operations from March 24, 2020, confined it from April 7 to "online or call-in ordering with delivery or curbside pickup," reopened at 50 percent with malls at 25 percent of common areas May 4, 75 and 50 percent May 22, 100 percent June 12, 2020, and kept county-based signage, employee-mask and response-plan directives, workplace infection-prevention and exposure-control conditions on every open store, to April 5, 2021.60 Wisconsin ceased non-essential retail from March 25, 2020 and capped essential stores at 25 percent or four customers per 1,000 square feet with hours for vulnerable shoppers from April 24 until the Supreme Court of Wisconsin ended the order May 13, 2020; the Governor's Emergency Order #1 series required face coverings indoors from August 1, 2020 to March 31, 2021, an airborne-transmission control on every indoor space where persons from another household were present, and Emergency Order 3 capped rooms open to the public at 25 percent from October 8 to November 6, 2020.61 Iowa closed bookstores, clothing, shoe, jewelry, luggage, cosmetic, florist and furniture stores at 10:00 p.m. March 26, 2020 and malls, tobacco, toy, gaming, music and movie stores at 8:00 a.m. April 7, reopened at 50 percent in seventy-seven counties May 1 and statewide May 15 and lifted the caps June 12, 2020, while its public health disaster emergency was renewed monthly into the third quarter of 2021.62 Missouri capped every retailer at 25 percent (under 10,000 square feet) or 10 percent (10,000 square feet or more) from April 6 to June 15, 2020 under an order binding "every person and business in the State of Missouri," and its largest cities and counties carried their own closures, curfews and, in the third quarter of 2021, indoor face-covering orders, airborne-transmission controls with the business as enforcer.63 Kansas closed non-essential retail to in-person operation from March 30 to May 3, 2020 and required face coverings of employees and customers from July 3, 2020 to March 31, 2021, an exposure control with county opt-outs; Nebraska never closed retail by category but directed "heightened, diligent and effective disinfection" and permitted Omaha and Lincoln to require face coverings of every person in every retail premises, an airborne-transmission control with the business as enforcer (Omaha August 11, 2020 to May 25, 2021; Lincoln July 20, 2020 to May 21, 2021 and again from August 26, 2021); North Dakota bound every indoor business to require masks of workers, customers and visitors from November 14, 2020 to January 18, 2021, an exposure-control duty on the business itself; and South Dakota's EO 2020-12 "directed" every enclosed retail business that "promotes public gatherings" to suspend or modify practices involving ten or more people indoors, while Sioux Falls, Rapid City and Brookings capped customers by ordinance.64
The South
Texas closed non-essential in-store retail from April 2, 2020 (GA-14, incorporating CISA Version 2.0), permitted "retail-to-go" from April 24 (GA-16), reopened at 25 percent with malls at 25 percent and food courts and play areas closed May 1 (GA-18), 50 percent June 3 (GA-26), 75 percent September 21 outside high-hospitalization Trauma Service Areas (GA-30) and 75 or 50 percent from October 14, 2020 to March 9, 2021 (GA-32; 50 percent in eighteen of twenty-two areas by January 15, 2021), required face coverings inside every commercial entity from July 3, 2020 to March 10, 2021 with fines (GA-29), an airborne-transmission control that also reached outdoor gatherings of more than ten, lifted the limits March 10, 2021 (GA-34, issued March 2), and on July 29, 2021 barred governmental mask and vaccination mandates (GA-38), under which the county orders of August 2021 were litigated.65 Florida closed non-essential retail in Miami-Dade, Broward, Palm Beach and Monroe from March 30 to April 15, 2020 and statewide under the Safer at Home essential list from April 3 to May 4, reopened at 25 percent May 4 and 50 percent May 18, removed the State cap June 5, 2020, ended State caps and preempted local caps below 50 percent September 25, 2020 (Ex. FL-047), and from July 1, 2021 forbade any business to "require patrons or customers to provide any documentation certifying COVID-19 vaccination."66 Georgia confined non-critical retail to Minimum Basic Operations from April 3 to 30, 2020, then ordered every retailer to limit patrons to 50 percent of fire capacity or eight per 1,000 square feet with enumerated measures from May 1, 2020, and kept mandatory measures for every organization through June 30, 2021.67 Kentucky closed "all in-person retail businesses that are not life-sustaining" at 8:00 p.m. March 23, 2020, limited entry to life-sustaining stores "to one adult member per household" from April 8, reopened at 33 percent May 20, 2020 under the Healthy at Work requirements, required customers' face coverings from July 10, 2020 as one of the exposure controls layered on those requirements, set 50 percent December 14, 2020, 60 percent March 1, 2021 and 75 percent May 28, 2021 and lifted the limits 1:00 p.m. June 11, 2021.68 Louisiana closed malls March 23, 2020 except stores with direct outdoor entrances selling essential goods and reduced all non-essential retail to minimum public contact; malls and stores reopened at 25 percent with common areas closed and a fire-marshal-approved plan May 15, 50 percent June 5, 75 percent September 11, 50 percent November 25, 2020, 75 percent March 3, 2021 and no cap March 31; face coverings were required of every person indoors from July 13, 2020 to April 28, 2021 and again from August 4 to October 27, 2021, an airborne-transmission control the proclamations paired with capacity and gathering limits in 2020 and with the employer's worksite duties in 2021.69 Maryland closed malls at 5:00 p.m. March 19 and non-essential retail at 5:00 p.m. March 23, 2020, required face coverings and physical-distancing measures in retail from April 18 (the order's own title), reopened at 50 percent May 15 and malls June 19, set 75 percent September 4, 50 percent November 20, 2020, and lifted the limit March 12, 2021.70 Virginia limited every non-essential retailer to ten patrons from March 24, 2020 with the rule that a business that "cannot adhere to the 10 patron limit with proper social distancing requirements ... must close," set 50 percent from May 15, required patrons' face coverings from May 29, 2020 as an exposure control beside the Phase One capacity and distancing rules, repeated the "must close" rule under EO 72 from December 2020 and ended the limits at midnight May 28, 2021; the Department of Labor and Industry's standard bound every retail workplace from January 27, 2021 and was amended September 8, 2021.71 North Carolina permitted essential retail only from March 30, 2020, imposed an "Emergency Maximum Occupancy" of 20 percent or five per 1,000 square feet on every open retailer from April 13, set 50 percent May 8, required face coverings statewide June 26, 2020 (EO 147, with its capacity and gathering limits), imposed a retailer duty to enforce them from November 25 and a Modified Stay at Home Order from December 11, 2020 to February 26, 2021, set 100 percent under its masked-entry and exposure-control conditions March 26, 2021 and lifted the caps May 14, 2021.72 The District closed non-essential retail at 10:00 p.m. March 25, 2020, permitted curbside from May 29 and 50 percent from June 22, cut retail to 25 percent or 250 persons from December 17, 2020, freed it May 21, 2021 and reinstated universal indoor face coverings from 5:00 a.m. July 31, 2021 as the District's airborne-transmission control, with the business's duty to enforce them.73 Delaware closed non-essential retail March 24, 2020, capped open stores at 20 percent from April 2, added malls and further categories April 7 with curbside forbidden, set 30 percent June 1 and 60 percent June 15, cut retail to 30 percent (20 percent over 100,000 square feet) December 14, 2020, set 50 percent February 12, 2021 and eliminated the caps May 21, 2021.74 Tennessee closed non-essential retail to the public from March 31 to April 28, 2020 in its eighty-nine State-run counties and reopened at 50 percent to May 22, while Davidson, Shelby, Knox, Hamilton, Madison and Sullivan Counties ran their own phased orders; Alabama closed six retail categories at 5:00 p.m. March 28, 2020, capped essential retailers at 50 percent from April 4 and all retail at 50 percent to November 8, 2020, and required face coverings statewide from July 16, 2020 (Ex. AL-027, within a Safer at Home order that also capped occupancy and gatherings) to April 9, 2021; Mississippi closed non-essential retail from April 3 to 17, 2020, confined it to curbside to April 27, set 50 percent to September 14, 2020 and 75 percent to March 3, 2021; South Carolina closed furniture, clothing, jewelry, department, sporting-goods, book, craft and music stores from 5:00 p.m. April 6 to April 20, 2020 and capped every open retailer at five per 1,000 square feet or 20 percent from April 7 to June 11, 2020; Oklahoma closed non-essential retail to the public from March 25 or April 1 to April 24, 2020 with municipal stay-at-home orders in Oklahoma City, Tulsa and Norman and municipal face-covering mandates, airborne-transmission controls on every indoor business, to June 1, 2021; Arkansas imposed mandatory protocols on every retailer from April 6, 2020 and, from July 20, 2020 to March 31, 2021, customers' face coverings as an exposure control layered on those protocols; West Virginia ceased non-essential retail at 8:00 p.m. March 24, 2020, closed malls except outdoor-entrance essential stores, reopened small retailers at two customers per 1,000 square feet May 4 and all retail May 21, 2020, and placed a mask-enforcement duty, an exposure-control duty on the business itself, on every business inviting the public from November 14, 2020 to June 20, 2021.75
The West
California closed non-essential retail from March 19, 2020 (EO N-33-20 and the State Public Health Officer's order), permitted curbside from May 8, closed indoor malls in Monitoring List counties July 13, set 25 percent (Purple) and 50 percent (Red) under the Blueprint from August 31, 2020, cut retail to 20 percent under the Regional Stay at Home Order in Southern California and the San Joaquin Valley from December 6 and the Bay Area from December 17, 2020 to January 25, 2021, ended the limits June 15, 2021, and from that date required face coverings of the unvaccinated, an airborne-transmission control, in "indoor public settings and businesses (examples: retail ...)" with a verification duty on the business, while the occupational-health and airborne-transmission controls of the Cal/OSHA emergency standard bound every retail workplace from November 30, 2020 and was readopted June 17, 2021.76 Washington conditioned all retail on a distancing officer from March 16, 2020, confined non-essential retail to minimum basic operations from March 25, permitted curbside in May, reopened in-store at 30 percent in Phase 2, cut retail to 25 percent with food courts closed from November 17, 2020, set 50 percent from March 22, 2021, lifted the caps June 30, 2021, and from August 23, 2021 placed every person indoors under the airborne-transmission control of a face covering, with every business under a duty of admission and every employee masked at the worksite.77 Oregon closed malls, furniture, jewelry, boutiques and cosmetic stores from March 24, 2020 and prohibited every other retailer from operating without a designated distancing officer, reopened by county from May 15, set 75 percent under the Freeze and 50 percent at Extreme under the county framework from December 3, 2020 to June 29, 2021, ended the caps 12:01 a.m. June 30, 2021 and restored universal indoor face coverings, an airborne-transmission control on every indoor space, August 13, 2021 by administrative rule, with the operator's duty to ensure compliance and to post signs, on pain of civil penalties.78 New Mexico closed non-essential retail from March 24, 2020, capped essential retail at 20 percent from April 7, reopened at 25 percent May 16 under COVID-Safe Practices that included universal face coverings, required retailers to refuse entry to the unmasked from July 1, 2020, closed retail at 10:00 p.m. from October 23, closed non-essential retail again from November 16 to December 1, 2020 with big-box stores closed from November 19, ran a county-level system of 25, 33, 50 and 75 percent from December 2, 2020 to June 30, 2021, lifted the caps July 1, 2021 while keeping mandatory COVID-Safe Practices and $5,000 penalties, and restored universal indoor face coverings within those practices from August 20, 2021.79 Nevada closed non-essential retail unable to ship or deliver from March 20, 2020 and the showrooms of essential businesses from April 8, permitted curbside May 1, reopened at 50 percent May 9, 2020, required capacity signage from October 5 and large stores to station employees at entrances to count entrants from November 24, 2020, lifted the limits June 1, 2021, and restored universal indoor face coverings, an airborne-transmission control, in substantial- and high-transmission counties from July 30, 2021 with a business duty of enforcement under Directive 045 (Ex. NV-039).80 Colorado closed non-critical retail to in-person work from March 26 to April 26, 2020, reopened at 50 percent May 1, ran the Dial (50 percent at Blue through Red, 25 percent at Orange, curbside only at Purple) from September 2020, imposed a customer face-covering mandate, an exposure-control duty carrying the owner's duty to refuse service, from July 17, 2020 to June 1, 2021 (Exs. CO-031, CO-049) and ended State caps April 16, 2021.81 Arizona confined non-essential retail to non-in-person activity from March 31 to May 3, 2020, permitted curbside May 4 and in-store May 8, kept mandatory written mitigation policies to March 25, 2021, and preempted local orders by EO 2020-12 to September 29, 2021 while permitting county and city face-covering orders, airborne-transmission controls with the business as enforcer, from June 2020.82 Utah told the public to leave home only for essential purposes from March 27 to May 1, 2020 while Salt Lake, Summit, Wasatch, Weber-Morgan and Davis Counties closed non-essential businesses, ran a Red phase of one person per 100 square feet, imposed statewide employee and patron face-covering duties from November 9, 2020 to April 9, 2021 beside the gathering, curfew and event limits of EO 2020-73, and terminated its orders May 4, 2021 under HB 294.83 Hawaii ordered non-listed retail to "cease" from March 25 to May 7, 2020, required face coverings of customers and employees from April 16, 2020 as one of the enhanced safe practices of the Fifth Supplementary Proclamation, required them statewide from November 16, 2020 to March 25, 2022, ran county tier systems through 2020 and 2021, and never ended its general regime before September 30, 2021.84 Idaho, Montana and Alaska ceased non-essential retail from March 25, March 28 and March 28, 2020 respectively, released it on April 30, April 27 and April 24, 2020 under mandatory distancing conditions, and (Idaho and Montana) re-tightened statewide in the winter of 2020-21; Wyoming never closed retail statewide but required face coverings "inside or in line to enter any business", an airborne-transmission control, with signage and employee duties from December 9, 2020 to March 15, 2021.85
The winter re-tightening
Between November 9 and December 26, 2020 the following retail instruments took effect: Utah's statewide face-covering duties on employees and patrons (November 9); North Dakota's and West Virginia's business mask-enforcement duties (November 14); New Mexico's second closure of non-essential retail (November 16 to December 1) and big-box closure (November 19); Ohio's Retail and Business Compliance order (November 16) and curfew (November 19); Washington's 25 percent with food courts closed (November 17); Michigan's 30 percent (November 18); Illinois' Tier 3 25 percent and Maryland's 50 percent (November 20); New Hampshire's face-covering order (November 20); Louisiana's 50 percent (November 25); North Carolina's retailer enforcement duty (November 25); Rhode Island's one customer per 100 square feet with dressing rooms closed (November 30); California's Regional Stay at Home Order at 20 percent (December 6 and 17); Wyoming's statewide face-covering order with its business signage and employee duties (December 9); North Carolina's Modified Stay at Home (December 11); Pennsylvania's 50 percent (December 12); Delaware's 30 percent and Kentucky's 50 percent (December 14); the District's 25 percent or 250 (December 17); and Massachusetts' 25 percent (December 26).86 Every one of them was in force on January 1, 2021. The face-covering instruments in this list were workplace infection-prevention and exposure-control requirements enforced at the business's door, and each arrived beside the capacity, distancing or gathering limits of the same or companion orders.
The 2021 transition
The statewide retail capacity orders ended on the following dates: March 10, 2021 (Texas); March 3 (Mississippi); March 12 (Maryland; Oklahoma); March 16 (Wyoming); March 19 (Connecticut's percentage cap); April 6 (Indiana); April 9 (Alabama); April 16 (Colorado); April 20 (West Virginia); May 4 (Utah); May 14 (North Carolina); May 19 (New York; New Jersey's cap); May 20 (Connecticut's rules); May 21 (Delaware; the District; Rhode Island); May 24 (Maine; Nebraska); May 26 (Louisiana); May 27 (Minnesota); May 28 (Virginia; New Jersey's public face-covering requirement); May 29 (Massachusetts); May 31 (Pennsylvania); June 1 (Nevada); June 2 (Ohio); June 11 (Illinois; Kentucky); June 14 (Vermont); June 15 (California); June 22 (Michigan); June 30 (Washington; Oregon); July 1, 2021 (New Mexico); and never, before September 30, 2021, in Hawaii.87 Percentage or square-footage caps were in force in twenty-five jurisdictions on April 1, 2021, with binding retail conditions short of a cap in four more, and in three (New Mexico, Washington and Oregon) plus Hawaii on June 30, 2021; New Mexico's ended on the first day of the third quarter.
The preemption States
New Jersey (EO 108), New York (EO 202.3), Arizona (EO 2020-12), Georgia (from April 2, 2020), Florida (EO 20-92, 20-244 and SB 2006), Texas (GA-14 onward and GA-38 from July 29, 2021), Mississippi (EO 1463), South Carolina (EO 2021-23), Tennessee (EO 80 for the eighty-nine counties from April 28, 2021), Iowa (HF 847), Utah (HB 294), Kansas (after May 26, 2020) and Massachusetts (in part, under Order No. 13) barred or superseded local retail orders for the periods the State records state, so that in those States and periods the State instrument was the sole retail regime; every other State set a floor and preserved stricter county and city orders, which is why the third-quarter 2021 retail record is county- and city-driven in California, Missouri, Pennsylvania, Tennessee, Nebraska, Iowa, Wisconsin, Massachusetts, Alabama, Indiana, Wyoming and, until enjoined, Texas.88 In the preemption States the third quarter of 2021 carried the federal layer, the State emergencies and their sector instruments, the school and workforce orders, the counterparty orders and continuing suspension; in the others it carried those and the local face-covering orders, with their business-enforcement duties, as well.
The largest metros
The 2020 layer
The county health officers, mayors and county judges of the largest metropolitan areas issued the earliest and, in several cases, the strictest retail orders. The Los Angeles County Health Officer closed non-essential businesses and confined residents to their homes from March 19 and 21, 2020, and the six Bay Area health officers ordered shelter in place at 12:01 a.m. March 17, 2020 (San Francisco Order C19-07 and its counterparts); the Sacramento, San Diego, Riverside and San Bernardino health officers followed within days.89 New York City's Emergency Executive Orders 100, 102 and 103 closed venues, confined the workforce and capped gatherings from March 16 to 25, 2020; Philadelphia's Emergency Order No. 1 prohibited non-essential businesses from March 17; Boston's Board of Health closed retail and personal-care premises March 20 and required face coverings, an airborne-transmission control, in every premises on the essential list April 9; Chicago's Public Health Order 2020-3 and Cook County's orders carried the Illinois closures locally from March 26; Dallas County's Amended Safer At Home Order and Rules for Reopened Services (April 23, 2020), Harris County's orders and Bexar County's declarations governed Texas retail before and alongside GA-14; Kansas City's Stay at Home Order (March 22) and its amendment (April 16), St. Louis's Health Commissioner's Order No. 3 (March 18), Denver's orders adopting the State's stay-at-home order (April 23), Nashville's Safer at Home Order 3 (March 22), Marion County's Public Health Order 2-2020 (March 23), Milwaukee's and Dane County's Safer at Home orders (March 25), Minneapolis's Emergency Regulations (March 16 onward), New Orleans's proclamation (March 16), Atlanta's Executive Order 2020-21 (March 23), Salt Lake County's Joint Public Health Order 2020-03 (March 25), Honolulu's Emergency Orders (March 20 onward) and Hillsborough County's Safer-At-Home order (March 26) each closed or confined retail in its jurisdiction.90 Local face-covering orders, airborne-transmission controls enforced at the business's door, reached the sales floor before the States' did in Maricopa and Pima Counties (June 19, 2020), Salt Lake County (June 27), Cincinnati (July 3), Cleveland (July 3), Columbus (July 2 to 6), Orlando (June 18 to 24), Hillsborough County (June 29), Montgomery County, Maryland (August 4) and Nashville (issued April 30, effective May 1, 2020; Ex. MET-BNA-005).91 Baltimore's Executive Order No. 24 governed the reopening of non-essential businesses (June 5, 2020) and its Executive Order No. 33 eased local restrictions on mall food courts (October 1, 2020); Shelby County's Health Directive No. 7 (June 22, 2020) and Safer at Home Directive No. 16 (December 21, 2020 to January 22, 2021) governed Memphis retail through the winter.92
The August and September 2021 reinstatements
Beginning July 17, 2021 the metropolitan authorities reinstated indoor face coverings by order, an airborne-transmission control placed on every indoor public place with the operator as its enforcer, universal in most jurisdictions and confined to employees, schools, courthouses or public buildings where the parenthetical says so, in the following order: Los Angeles County (11:59 p.m. July 17; revised August 16, effective August 19; the revision of September 17 took effect October 7, 2021, after the quarter) and the City of Los Angeles (July 17; August 24); Las Vegas's Clark County employee mask rule (July 22); Pasadena (July 22); St. Louis City and County (July 26); Savannah (July 26); Atlanta (July 28); Sacramento (July 30); New Orleans (July 31; vaccination-or-test entry conditions from August 16); Kansas City (August 2 by order; August 19 by ordinance); Alexandria and Northern Virginia courthouses (August 2); the six Bay Area counties and Marin (12:01 a.m. August 3); Cuyahoga County (August 3 to 4); Oak Park (August 6); Montgomery County, Maryland (August 7); Baltimore City (August 10); Multnomah County (August 9, effective August 13; Exs. MET-PDX-014, MET-PDX-015, the County's announcement and Board briefing recording the Chair's executive order); Boulder County's school order (August 10) and countywide indoor masks (September 3); Orange County, North Carolina (August 11); Dallas County (August 11 to 16, stayed and restored under GA-38 litigation); San Antonio and Bexar County (August 11); Philadelphia (August 12; a vaccinated-only exception for businesses requiring proof); Raleigh (August 13); Denver's school and child-care order (August 17); Madison and Dane County (August 19); Charlotte and Mecklenburg County (August 18; Board of Health rule from August 31); Somerville (August 20); Cook County (August 23); Chicago (August 20); Summit County's school order (August 25); Boston (8:00 a.m. August 27) and Brookline (August 27); Cambridge (September 3) and Worcester (September 7); King County's outdoor and indoor orders (September 7); Columbus (September 10 to 14); Dayton (September 17); and Honolulu's Safe Access Oahu (September 13).93 New York City's Emergency Executive Order 225 (August 16, 2021; enforcement from September 13) barred every covered indoor entertainment, recreation, dining and fitness premises, including those inside malls, from admitting a patron or employee without proof of vaccination.94 Each order in this list that masked indoor public places is an order from an appropriate governmental authority limiting commerce at every store within its territory; the school, child-care, courthouse and public-building orders in the list are orders on the industry's workforce and counterparties and are treated as such in the third quarter of 2021 below (subpart B-13). Each was in force on September 30, 2021 except where the parenthetical gives an earlier end date, and Dallas County's orders were in force on that date after the Supreme Court of Texas's stay of August 15 was lifted on August 19.
The standing duties
Beneath the emergency orders of the three layers above lay a fourth layer that bound every retailer in every State on every day of the six quarters: the communicable-disease control acts, the workplace-safety statutes, the offenses for disobeying health and emergency orders, the sanitary codes enforced by summary closure, and the liability shields that protected only the business that complied with governmental standards, guidance and protocols. Each is an order from an appropriate governmental authority on the Suspension Clause's own terms: a statute or rule that commands conduct is an order, and a legislature, a health department and a labor or occupational-safety agency are each such an authority. The pandemic directives gave each its content. The layer is set out here for eight States that span the regions and the regulatory forms (Texas, California, New York, Minnesota, Florida, Virginia, Arizona and Michigan); the fifty-one-State treatment is on the standing-duties page.95
The orders' own conditions of operating
The reopening orders cited above permitted the sales floor to open only on conditions, and the verbs are commands. "Every business establishment in Texas shall operate at no more than 50 percent of the total listed occupancy" (Ex. TX-021), a ceiling GA-32 raised to "no more than 75 percent of the total listed occupancy of the establishment" (Ex. TX-025), with GA-29's face covering "inside a commercial entity" one of the exposure-control requirements beside those occupancy and distancing conditions (Ex. TX-022) and the offense of Government Code § 418.173 recited in each order (Ex. DUT-TX-012). Every Arizona business that "serves the public or is an employer shall develop, establish and implement policies based on guidance from the CDC, Department of Labor, ... OSHA and ADHS" (Ex. AZ-019), a provision that "shall be enforced by law enforcement and regulatory agencies" (Ex. AZ-020). California's retailers "must, when they do so, continue at all times to practice physical distancing" (Exs. CA-015, DUT-CA-014); New York's "must be operated subject to" the Department of Health's guidance (Ex. NY-022); a Minnesota business "must establish and implement a COVID-19 Preparedness Plan" and "must require that all persons, including their workers, customers, and visitors, wear face coverings," one exposure control beside the Plan's screening, distancing and cleaning duties (Exs. MN-015, MN-027); and Virginia's "may reopen, provided such businesses comply with the Guidelines for All Business Sectors," which read "Establishments must either implement the following mandatory requirements or close" (Exs. VA-010, DUT-VA-014, DUT-VA-015). The orders drew the line between command and recommendation, and this analysis keeps it: a protocol incorporated with "should" (Ex. TX-011) is treated as a recommendation made compulsory by the incorporating order, the workplace statutes and the shields' condition, and where a State later converted its employer clause to a recommendation (Exs. TX-029, AZ-037, CA-029, FL-034) the compulsion rests thereafter on the standing statutes, the shield's condition and the federal layer.96
The standing statutes
Standing law commanded the same conduct independently of any order. Texas states the duty on the person: "The state has a duty to protect the public health. Each person shall act responsibly to prevent and control communicable disease" (Health and Safety Code § 81.002, Ex. DUT-TX-001); knowing refusal to perform or allow a control measure is a Class B misdemeanor and disobedience of a published order in an area quarantine a third-degree felony (Exs. DUT-TX-002, DUT-TX-006, DUT-TX-005); and every retail food store operated under a sanitary code enforced by "the immediate closing" of the store (Exs. DUT-TX-016 to DUT-TX-018). The other seven States command in the same register: a misdemeanor or civil penalty for any person who violates a health or emergency order, and a command to law enforcement to enforce it (Exs. DUT-CA-003, DUT-NY-001, DUT-MN-006, DUT-FL-001, DUT-VA-001, DUT-AZ-007, DUT-MI-003).97
The workplace-safety duty bound every employer before and throughout the pandemic. "Each employer ... shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees" (29 U.S.C. § 654(a)(1), Ex. DUT-FED-001); OSHA cited under it from September 10, 2020 (Exs. FED-088, AGY-FED-LABOR-IMMIGRATION-031, LAW-487) and obtained an affirmed willful violation in 2021 (Ex. DUT-FED-073). The State statutes agree: in Texas "[e]ach employer shall" provide "a place of employment that is reasonably safe and healthful" (Labor Code § 411.103, Ex. DUT-TX-013); California, New York, Minnesota, Virginia, Arizona and Michigan command in words as broad (Exs. DUT-CA-009, DUT-NY-013, DUT-MN-007, DUT-VA-005, DUT-AZ-008, DUT-MI-013); and Florida's private employers answer to the federal clause alone (Ex. DUT-FL-015).98 Five of the eight then wrote the pandemic duty into a workplace rule: Virginia from July 27, 2020 (Exs. VA-036 to VA-038), Michigan from October 14, 2020 (Exs. MI-054, MI-074), California from November 30, 2020 (Exs. CA-023, CA-024), New York from June 23 and September 6, 2021 (Exs. NY-133, DUT-NY-014, NY-129), and Minnesota through the Preparedness Plans its orders required, whose guidance told every business that "[u]nless clearly indicated that an action included in the guidance is recommended, businesses should understand that the action is required" (Exs. MN-015, MN-027, DUT-MN-013).99
The liability shields' condition
The legislatures then declared what a business owed. Texas protects a business from exposure liability unless the claimant proves it "knowingly failed to implement or comply with government-promulgated standards, guidance, or protocols intended to lower the likelihood of exposure to the disease" (Exs. DUT-TX-014, DUT-TX-015); Florida immunizes only a defendant that "made a good faith effort to substantially comply with authoritative or controlling government-issued health standards or guidance" (Ex. DUT-FL-012); Arizona presumes good faith only for a business that "adopted and implemented reasonable policies related to the public health pandemic" (Ex. DUT-AZ-010); Michigan immunizes "a person who acts in compliance with all federal, state, and local statutes, rules, regulations, executive orders, and agency orders related to COVID-19" (Exs. MI-056, DUT-MI-015). California, New York, Minnesota and Virginia enacted no general business shield and left the ordinary standard of care in force (Ex. DUT-CA-013). In each form the premise is the same: compliance with governmental health standards was what a retailer owed. The retailer that distanced its aisles, screened its staff, sanitized its counters and enforced the face covering at its door was discharging a duty the law had fixed, not exercising a choice the law had left open.100
The sector regulators
The federal price and allocation regulators
The HHS scarce-materials designation chain under Executive Order 13910 is the retail sector's federal order: a command addressed to "any person," limiting commerce in identified retail goods by quantity and price, enforced criminally by the Department of Justice, in force from March 25, 2020 through November 15, 2021 without a day's interruption other than the January 20 to 31, 2021 interval the February 1, 2021 notice did not recite.101 The FEMA export rule governed the same goods at the border from April 7, 2020 to June 30, 2021.102
The federal workplace regulator
OSHA's Alert 3996, COVID-19 Guidance for Retail Workers, is guidance and is not cited as an order; it is the agency's own description of the retail workplace the State orders governed. OSHA's National Emphasis Program (DIR 2021-01 of March 12, 2021; DIR 2021-03 of July 7, 2021) is an enforcement posture that named the retail NAICS codes for programmed inspection under the general duty clause and existing standards; it is cited as the federal enforcement condition under which every targeted retailer operated in 2021 and never as an order limiting commerce by itself.103 The OSHA Healthcare Emergency Temporary Standard bound in-store clinics and vaccination services outside the retail-dispensing exception from June 21, 2021.104
The State health directors as retail regulators
Ohio's Director of Health is the paradigm: the Director's Order for Retail and Business Compliance for Facial Coverings conditioned the right to "be open for business or operate" on compliance, created a Retail Compliance Unit within the Bureau of Workers' Compensation, required every business to "allow access to, and permit inspection" by the Unit, local health departments and law enforcement, and provided for a notice of violation "requiring closure" after a warning, from 12:01 a.m. November 16, 2020 to June 2, 2021.105 Kentucky's Cabinet for Health and Family Services issued the Healthy at Work Requirements for Retail from May 20, 2020; Louisiana's State Fire Marshal approved every mall's and store's reopening plan; New York's Empire State Development and Department of Health issued the mandatory Interim Guidance whose ceilings were the law of the premises; Connecticut's Department of Economic and Community Development issued the binding Sector Rules for Retail and Malls; Minnesota's Departments of Employment and Economic Development and Health certified every Preparedness Plan.106
The State labor regulators
The Pennsylvania Secretary of Health's Worker Safety Order (April 15, 2020), Michigan's MIOSHA emergency rules (October 14, 2020), Virginia's emergency temporary standard (July 27, 2020) and permanent standard (January 27, 2021; amended September 8, 2021), the Cal/OSHA emergency standard (November 30, 2020; readopted June 17, 2021), Oregon OSHA's temporary rule (November 16, 2020) and permanent rule OAR 437-001-0744, Washington's Department of Labor and Industries rules and Proclamation 20-25.14 ¶ 10, New Jersey's EO 192 (November 5, 2020) carried by EO 242 and 243, and New York's HERO Act plans (mandatory August 5, 2021; activated September 6, 2021) fixed the conditions of every retail workplace in those States, from screening and exclusion to distancing, masking, ventilation, training and record-keeping.107
The State price regulators
Minnesota's Emergency Executive Order 20-10 (March 20, 2020), California's EO N-44-20, N-78-20 and N-03-21 (Penal Code § 396 protections to September 4, 2021), Michigan's EO 2020-18 and 2020-53, New York's Chapter 90 of 2020 extending General Business Law § 396-r to "any manufacturer, supplier, wholesaler, distributor or retail seller," Colorado's HB 20-1414, Maryland's Chapter 14 of 2020 (a 10 percent cap on retailers' profit increases) and Massachusetts' 940 CMR 3.18 fixed the prices at which designated goods could be sold, and Wisconsin's Act 185 barred retailers from accepting returns of food, personal-care, cleaning and paper products during the emergency.108
The licensing and public offices
Motor-vehicle, recorder and licensing offices closed to the public or went appointment-only from March 2020 under the States' emergency and closure orders, reaching the licensing of dealers and of alcohol, tobacco and firearms retailers by category; the closures in Indiana, California and New Jersey were compelled by the Governors' emergency and closure orders (Exs. IN-006, CA-007, ECO-B-025), and the motor-vehicle agencies' own announcements of those closures (Exs. AGY-ST-DMV-SOS-RECORDERS-002, AGY-ST-DMV-SOS-RECORDERS-018, AGY-ST-DMV-SOS-RECORDERS-019) are cited as the agencies' record of the closures and not as orders in themselves.109
The ports
The Coast Guard's Marine Safety Information Bulletins (MSIB 02-21 Change 3, September 2, 2021) are the agency's own description of the regime under which crews, terminals and port operations worked through the quarter, the CDC's orders and the Captain of the Port orders they implement being the instruments, and they are cited as that description and not as orders; the Federal Maritime Commission's Fact Finding 29 (its supplemental order of November 19, 2020, an order of the Commission; its executive summary of June 15, 2021 and interim recommendations of July 28, 2021, the regulator's own account, cited as context) is the federal regulator's record of the congestion through which retail inventory moved.110
The counterparties
Suppliers
The plants, warehouses and distributors that supply the sales floor were closed or capped by order in Michigan (EO 2020-21 and 2020-42, March 24 to May 11, 2020), Pennsylvania (March 19, 2020 onward under the life-sustaining list), New York (EO 202.8 from March 22, 2020), New Jersey (EO 122 from April 10, 2020), Washington (Proclamation 20-25 from March 25, 2020) and the California counties; the meat and poultry plants were made a Defense Production Act priority on April 28, 2020 after the CDC counted 4,913 infected workers in 115 plants; and the Federal Reserve recorded that "[s]ome other manufacturing industries, such as autos, mostly shut down" and that Districts "reported widespread mandatory closures" and "supply chain disruptions" in April 2020.111
Customers
The stay-at-home orders of forty-two States and territories confined the customer base to its homes in the spring of 2020; the traveler-quarantine orders of New York (EO 205 from June 25, 2020), Connecticut, New Jersey, Hawaii, Alaska, New Mexico, Rhode Island, Massachusetts, Maine, Vermont, Kentucky, Kansas, Pennsylvania, the District and Chicago confined the traveling customer through 2020 and, in Hawaii, Kansas and Rhode Island, into the third quarter of 2021; the land-border notices and entry proclamations confined the cross-border shopper and the foreign visitor on every day of the six quarters.112
Landlords and venues
The mall closure orders, the common-area and food-court closures, the construction shutdowns and the commercial eviction stays are inventoried above and in the function-by-function section (ML); the convention-center closures and gathering caps that removed the trade show and the in-store event are inventoried there as well (MK). The Library's meetings records for this industry set out the trade shows, buying markets, cooperative conventions, fairs, holiday selling events and recurring retail gatherings that those venue orders displaced, with the organizer's stated action in 2020 and 2021 and the venue jurisdiction's instruments.
Schools, child care and transit
Every public school building in the country was closed by order by March 25, 2020, and forty-eight States, four territories, the District and the Department of Defense schools closed for the rest of the school year; child care was confined to essential workers' children in New Jersey (EO 110), Connecticut (EO 7Q) and many other States; the fall 2020 remote and hybrid orders and the 2021-22 masking and quarantine orders followed; and the conveyance order, the federal airborne-transmission control on transit, governed every commute from February 1, 2021.113
Courts and public offices
Court administrative orders suspended jury trials and in-person proceedings in every State and federal district in 2020, and the Supreme Court of Texas's Thirty-Eighth and Fortieth Emergency Orders, the judicial emergencies of Virginia, Georgia, Alabama and Hawaii, and the occupational-health controls (mask and vaccination orders) of the courthouses of Arizona, Alaska, Kentucky, Maryland, Nevada, New Mexico, Utah, Vermont and the federal districts ran through the third quarter of 2021; they reached the retailer's collection, landlord-tenant and licensing matters.114
The interconnected economy
The mechanism
"Commerce" in the United States is interstate and international by nature, and an order anywhere in the chain limited commerce everywhere along it. An order that closed non-essential manufacturing in Michigan, Pennsylvania, New York and New Jersey limited the commerce of every retailer in every State that sold goods from those plants; the presidential proclamations and DHS notices that limited entry and land-border travel limited the commerce of every importer and every border-town retailer; the school and child-care closure orders of every State limited the workforce of every store; the traveler-quarantine orders limited the tourist and business-traveler retail demand of dozens of States; the CDC and TSA orders governed every transit commute through September 30, 2021 and beyond; the court, recorder, clerk and motor-vehicle closures suspended the licensing and collection transactions of retailers; and the health care orders reached every employer whose employees needed testing or vaccination. The Federal Reserve's own account of the mechanism, in its Monetary Policy Report of July 9, 2021, is that "[c]ompanies laid off workers, idled plants, and canceled orders for materials ... by late 2020, factories in some industries were scrambling to find the workers, parts, and materials ... The massive influx of goods combined with COVID-19-related staffing issues have overwhelmed U.S. ports"; its Beige Book of July 14, 2021 records that "[s]upply-side disruptions became more widespread, including shortages of materials and labor, delivery delays, and low inventories of many consumer goods."115 The Census Bureau found in the week ending July 18, 2021 that 59.8 percent of small retailers reported domestic supplier delays and 15.9 percent of all small businesses foreign supplier delays.116 The interconnected-economy section below applies the mechanism to this industry; the counterparty orders are treated as orders under the statute's words and under the logic of Q&A-12, which the United States confirmed to the Ninth Circuit reaches an order "addressing a third party."117
Foreign orders as facts and circumstances
Foreign governments closed the factories and ports from which United States retail inventory ships: China's provincial lockdowns of February and March 2020; India's national lockdown from March 25, 2020; Mexico's suspension of non-essential activity from March 30, 2020; Malaysia's Movement Control Orders in 2020 and its Full Movement Control Order from June 1 to August 15, 2021; Vietnam's lockdown of Ho Chi Minh City and the southern provinces from July 9 to September 30, 2021; Taiwan's Level 3 alert to July 26, 2021; and the closure of the Ningbo-Zhoushan Meishan terminal from August 11 to 25, 2021. Canada barred discretionary entry by United States residents to August 9, 2021 and imposed testing, ArriveCAN and quarantine rules thereafter; the European Union admitted United States travelers June 18, 2021 and removed them August 30, 2021. Each is cited as a fact and circumstance in which the United States' own border, entry, allocation and port instruments operated, and none as an order of an appropriate governmental authority.118