Much of the country is currently subject to “shelter in place” orders, encouraging residents to remain at home and closing down businesses deemed nonessential. In San Francisco, you can be charged with a misdemeanor by visiting a friend.
All of which raises important legal questions. What power does the government have to restrict people’s activity during a pandemic? Can the government quarantine someone against their will?
The short answer to the later question is probably “yes.” As the National Conference of State Legislatures (NCSL) explains, “every state, the District of Columbia and most territories have laws authorizing quarantine and isolation, usually through the state’s health authority.” The federal government also has some power to apprehend individuals who may be infected with a communicable disease that could trigger a public health emergency, but this power is largely restricted to those entering the country or crossing a state border.
How much can be done varies by state based on their particular public health laws (NCSL has a helpful rundown of each state’s law here). The Constitution places fairly strict limits on the federal government’s power to quarantine individuals within a single state — though these limits do not apply to state officials. And the Constitution prohibits both federal and state governments from denying anyone “life, liberty, or property, without due process of law.”
But the contours of this right to “due process” is not particularly well defined, at least in the context of quarantines.
For the moment, at least, mandatory quarantines remain a hypothetical in the United States — although some such quarantines are being implemented in other countries. Realistically, if a US government resorts to quarantines to control the spread of coronavirus, there is likely to be a brief period of legal chaos where judges across the country try to make sense of existing precedents — often reaching contradictory results in the process — until the Supreme Court steps in to hand down a nationwide rule.
And when that rule is handed down, it’s likely that the Court will be very deferential to public health officials.
The federal government’s power to quarantine is quite limited
Though the federal government has some ability to prevent the spread of a communicable disease, as a practical matter, there cannot really be a comprehensive federal response to coronavirus.
That’s because the day-to-day decisions about whether to shut down schools, close down major events, or implement a mass quarantine are likely to be made by state and local officials who may have wildly different views about how they should act. Not only is New York’s response to coronavirus likely to differ from Florida’s, but Miami’s response could be quite different than Orlando’s.
As the Centers for Disease Control and Prevention (CDC) explains on its website, “the federal government derives its authority for isolation and quarantine from the Commerce Clause of the U.S. Constitution.” That clause permits Congress to “regulate commerce with foreign nations, and among the several states.”
The full scope of Congress’s powers under this clause is one of the most hotly contested questions in American constitutional history. Alexander Hamilton and Thomas Jefferson fought over how to read this clause during President George Washington’s first term. The Supreme Court spent four decades in the late 19th and early 20th centuries reading the Commerce Clause narrowly to thwart progressive change; the Court’s decision to abandon this narrow reading of the Commerce Clause, and permit much of the New Deal to take full effect, was one of the most consequential events of the 20th century.
Even in the pre-New Deal years when the Court routinely struck down federal laws as beyond Congress’s power to regulate commerce, the Court recognized that Congress has a broad power to regulate travel across state lines. Hence the Court’s decision in Hoke v. United States (1913), which upheld a law making it a crime to transport a woman across state lines “for immoral purposes” (a euphemism for prostitution).
But under the Court’s current understanding of the Commerce Clause, Congress’ power to protect the physical safety of people who are not engaged in interstate or international travel is very limited. And accordingly, federal law does not provide for quarantines of individuals who remain within a single state.
Federal officials could potentially quarantine someone seeking to enter the country or seeking to cross from one state into another. The federal government is also allowed to provide voluntary assistance to the states, so if a state government asks for federal help in enforcing or maintaining an intrastate quarantine, federal officials could potentially provide that assistance.
Ultimately, however, the power decide how individual states respond to coronavirus largely rests with the leadership of those states, and that has troubling implications if a coordinated response is necessary. An outbreak could potentially spread out of control in one state — and cross over into others — if state and local officials take a lax response to the disease. At the same time, many Americans could potentially have their civil liberties needlessly restricted if state or local officials in another state take a reactionary approach.
If I am quarantined, what are my rights?
The Constitution divides power between the states and the federal government, but it also protects certain individual rights. Among them is the right to not be denied “liberty” without “due process.”
It should be noted that there’s a big difference between a procedural right and a substantive right (although the Supreme Court has, at times, blurred this line). There is no freestanding constitutional right to go about your normal life while an epidemic endangers many people’s lives. At the same time, the government cannot simply confine people for arbitrary reasons, or without providing an adequate explanation.
If you are quarantined, you do not necessarily have a right to be released from that quarantine, but you do have a right to demand some sort of adjudicative process to determine whether the quarantine is justified.
It is well established that the government may confine people against their will if those individuals present a danger to themselves or others, even if the person being confined has not committed a crime. In Addington v. Texas (1979), for example, the Supreme Court held that individuals with such severe mental illnesses that they present a threat to their own safety, or to the safety of others, may be involuntarily confined to a mental hospital.
Addington, however, also held that the government must prove by “clear and convincing” evidence that such confinement is justified — a much higher burden of proof than courts typically apply in civil cases. An “individual’s interest in the outcome of a civil commitment proceeding is of such weight and gravity” the Court explained, “that due process requires the state to justify confinement by proof more substantial than a mere preponderance of the evidence.”
That said, it’s not entirely clear that this heightened standard of proof would apply to coronavirus quarantines. Though Addington held that “civil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection,” much of the Court’s analysis was restricted the the specific circumstances of a person believed to have a severe mental illness.
“At one time or another, every person exhibits some abnormal behavior which might be perceived by some as symptomatic of a mental or emotional disorder, but which is, in fact, within a range of conduct that is generally acceptable,” Chief Justice Warren Burger explained for the Court. That creates a risk that “a factfinder might decide to commit an individual based solely on a few isolated instances of unusual conduct.” A higher burden of proof would help prevent such an occurrence.
A coronavirus diagnosis, by contrast, is less likely to prove so elusive — at least assuming that health care providers have adequate access to diagnostic tests. And the stakes are also lower for people who are quarantined than they were in Addington. The Texas law at issue in that case permitted individuals to be confined “for an indefinite period to a state mental hospital” — potentially for years or even decades if the individual does not respond well to treatment.
Someone confined due to coronavirus, by contrast, is likely to recover much more quickly. And even if there is uncertainty about whether their symptoms are due to coronavirus or some other disease, this uncertainty could be resolved by diagnostic testing.
For these reasons, it’s possible that the courts may permit the government to quarantine individuals based on less than clear and convincing evidence.
There’s also one more reason why courts may be reluctant to intervene in such cases. In national security cases, judges often defer to the executive branch when it claims that a particular incursion on civil liberties is necessary to protect the country. As the Supreme Court explained in Boumediene v. Bush (2008), “neither the Members of this Court nor most federal judges begin the day with briefings that may describe new and serious threats to our Nation and its people.” And no judge wants to hand down a decision that prevents the government from stopping a terrorist attack.
A similar psychology is likely to set in if states begin large quarantines of people with coronavirus symptoms. Fears of coronavirus are already making stock markets volatile. Worse, while the data is unclear about how many people infected by this virus will die, there’s at least some evidence indicating that older adults are especially at risk.
Thus, just as judges tend to defer to the executive on matters of national security, those same judges are likely to defer to public health officials regarding a potential pandemic.