The Courts

Can States Close Their Borders? COVID-19 Gives Local Authorities Wide Power

Outer Banks
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North Carolina's Outer Banks, a premier vacation destination on the east coast, closed its borders to visitors on March 17 because of the coronavirus pandemic.

While border closures raise difficult constitutional problems, state and local governments can and have exercised extraordinary powers to stop COVID-19 infections.

"It is largely up to the states themselves to prevent the spread of the disease within their borders, but they have broad ‘police power' authority under the Constitution to do so," Heritage Foundation's John Malcolm told the Washington Free Beacon. "Federal law, including the Stafford Act, provides ample authority to the federal government to assist in that effort."

Though the White House press briefing room is, with some justification, a fixture of press attention during the crisis, it is state and local authorities who hold the balance of power on public health issues in the United States. Even as that power is vast, its exact reach is unknown. As such, the coronavirus pandemic provides a rare occasion for the states to exert exceptional authority, perhaps even in tension with the federal government.

Can states and counties close their borders? 

The Outer Banks are in Dare County, N.C. Police opened checkpoints around the county on March 17 and required residents to present government-issued identification to come and go.

Some legal authorities, while not definitive, suggest the state and local authorities can implement such drastic containment measures.

Border closures seem dubious since they interfere with federal powers. But as the University of Virginia’s Kyle Connors recently explained, the Supreme Court was extremely deferential to state officials on public health issues throughout the 19th and early 20th centuries. Border closings, in particular, were periodically in use.

Pennsylvania governor Thomas Mifflin prohibited trade between New York and Philadelphia during an epidemic in 1798. So-called shotgun quarantines—where local authorities deployed armed men to limit travel—were common in the South during the 19th century, though contemporary authorities agree they were ineffective.

In one early case Connors flagged, Supreme Court Justice John McLean wrote that the states retain the "power of self-preservation." That general statement took more definite form in later decisions.

One such case arose in 1902, when a Louisiana health board blocked passengers from disembarking in the port of New Orleans based on unsubstantiated fears of infection. Even though that decision interfered with federal power over commerce, the Supreme Court sided with the health board.

Three years later, the Supreme Court went even further. City authorities in Cambridge, Mass., adopted a mandatory vaccination law after an outbreak of smallpox. Henning Jacobson, a city resident, had to pay a fine after he refused to comply. On review before the High Court, the justices said the ordinance was justifiable because individual liberty can be restrained "as the safety of the general public may demand."

Assembly limits and mandatory quarantine orders are acceptable for now

Border closings aside, the states can wield extraordinary power at the frontline of the pandemic. Each state holds a reservoir of general authority to impose order and promote the public welfare called the police power. Speed limits and driver licensure requirements are routine examples of laws enacted against the general backdrop of police powers.

The exercise of police power to curtail pandemics has a well-established pedigree in the United States. Throughout the 17th century, selectmen in the Massachusetts Bay Colony imposed quarantines under a general edict to "make such orders as may concern the well-ordering of their own towns."

In the modern period, many states adopted laws and regulations empowering public health officials to implement preventative measures once an emergency has been declared. In response to COVID-19, public health officials are using that power to impose travel advisories, mandatory quarantines, and limits on gatherings.

For example, California's Santa Clara County enacted assembly limits under a state rule directing health officers to take "any preventive measure that may be necessary to protect and preserve the public health" once an emergency is declared.

The Santa Clara directive required police to "ensure compliance with and enforce" its order, citing another state rule. Presumably, local police might make arrests to enforce the restrictions. Critically, the rule makes no mention of penalties, so it isn't likely that people who break the order would be charged with a crime.

The legal question gets closer as assembly restrictions interfere with the rights of religious and political groups. For example, many churches and synagogues have canceled services to comply with local rules, an obvious infringement of the freedom to worship. However, if the assembly restrictions are general and applied in a neutral way, they are permissible for now.

"Government may not substantially burden the free exercise of religion unless it has a compelling reason for doing so, and even then it must use the least burdensome approach that achieves that compelling interest," the First Liberty Institute, which litigates religious liberty cases, advised in a guidance document on COVID-19. "Temporary action to reduce the spread of a global pandemic is almost certainly a compelling reason, so long as the government is not treating religious institutions unfairly compared with how it treats other comparable gatherings."

Isolation and quarantine directives similarly allow for dramatic action. In the overwhelming majority of cases, those directives are implemented on a cooperative basis, Professor James Hodge, a public health law specialist at Arizona State University, told the Free Beacon.

In most instances, the public health authority will issue a temporary quarantine notice to someone infected with COVID-19 or those who have been exposed to the virus. Those directives are on their strongest constitutional footing when they ask individuals to stay home.

Such notices aren't generating compliance issues at this stage. If a recipient refuses to follow public health notices voluntarily, however, local authorities could forcibly quarantine that individual without a court order. Judicial review of such action would follow in short order.

Though unusual from a due process perspective, Hodge said that step is acceptable in many jurisdictions, depending on the facts.

"Even procedural due process interests can be outweighed temporarily by government's immediate interests in protecting the public's health against a known and significant threat like COVID-19," Hodge told the Free Beacon.

This is the second article in a series examining legal issues arising due to COVID-19. The first is available here