The unprecedented steps government leaders have taken to contain the coronavirus—and the more extreme measures being considered—are raising thorny legal questions for U.S. courts.
California's Gavin Newsom became the first governor to impose an extraordinary lockdown measure Thursday night, directing state residents to remain at home or face fines, except for essential tasks like grocery shopping or walking a pet. Yet it's unclear whether Newsom's order is constitutional. Even if it isn't, judges might allow such extreme steps, at least for a limited period of time.
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Some of the legal questions presented by COVID-19 are new, like Newsom's confinement order, or whether the Centers for Disease Control can impose quarantines inside U.S. borders to contain the virus.
Professor James Hodge, a public health law specialist at Arizona State University, said lockdowns of the sort seen in France—where President Emmanuel Macron has mobilized 100,000 police officers to enforce a shelter in place order for 15 days—is likely to trip multiple constitutional wires.
"We've seen lockdowns in China and Italy. The capacity to pull off similar efforts in the United States at any level of government is sketchy at best because of rights to travel, due process and other specific constitutional norms," Hodge told the Washington Free Beacon.
If the crisis worsens significantly, the courts may permit broad action, at least for a limited period of time. A judge might defer to the judgment of public health authorities, but the government would be required to show its interest is compelling and its intervention is both narrowly constructed and the least restrictive means of meeting the threat.
Hodge said meeting that last objective would be hardest for government officials, since ordinary social distancing measures may be as effective as a French-style lockdown and do not infringe fundamental rights.
Yet Newsom has described a dire situation in California. Speaking Thursday before the lockdown order was issued, the governor cited one projection that anticipates about 20 million people, over half the state's population, could become infected with COVID-19 in the next two months. Though that figure represents a worst-case scenario, infections on that scale far outpace the capacity of state health care systems, leaving thousands of lives in the balance.
Courts may also confront the question of whether the federal government has power to quarantine and isolate individuals inside the United States to stop the spread of coronavirus. Federal rules seem to allow those steps, but such action on a broad scale is completely unprecedented.
CDC regulations seem to give the agency broad authority to stop the spread of communicable diseases among the states. But those powers are untested because the agency customarily allows state and local partners to take the lead. Public health authority is fragmented across some 2,700 state, local, and tribal departments.
Emory University School of Law professor Polly Price explained that the Public Health Safety Act (PHSA) authorizes the surgeon general and the CDC to stop the spread of communicable diseases between states. That power has never been put into practice.
"The statute limits federal quarantine power to U.S. entry points and to persons believed ‘to be moving or about to move from a state to another state,'" Price said. "The CDC is tasked with federal quarantine orders; to date it has exercised that authority only rarely, and only for individuals rather than groups or populations."
The CDC has adopted expansive regulations under the PHSA. One regulation allows the agency director to apprehend and quarantine individuals to stop the transmission of disease. Another empowers the director to intervene if local control efforts are found to be "inadequate," enabling the agency to inspect and fumigate infected sources. Another allows the CDC to seize vehicles to contain a pandemic.
Hypothetically, those regulations mean that the CDC could seize and quarantine airplane passengers for weeks if they determine someone on board has COVID-19. The agency, however, is somewhat constrained by its size. With just 11,000 employees, the CDC would have to rely heavily on state and local authorities if it pursued broad-based enforcement of its regulations.
While CDC's authority in the interior is unsettled, it has vast powers at the border itself, as U.S. travelers have lately discovered. The CDC maintains 20 quarantine stations at airports and land crossings.
For example, about 350 Americans who were evacuated in February from China’s Hubei province were quarantined at military bases in California for two weeks.
Hundreds of passengers aboard the Grand Princess cruise ship, which incurred a COVID-19 outbreak as it approached San Francisco, were quarantined at military installations in California, Georgia, and Texas on CDC’s orders.
Those directives, issued in the early stages of the pandemic, mark the most aggressive implementation of CDC quarantine authority in decades.