The Legality of Quarantine

Timothy Birdnow

The legal authority of individual states to shutter businesses and force people into quarantine is discussed in this article.

It’s vitally important to understand that while the federal government possesses far more resources than any state, the president has less inherent authority to respond to pandemics than governors. The federal government is a government of enumerated powers—it has only the powers granted it by the Constitution. Therefore, for the president or Congress to act they have to locate the source of their authority within a specific provision of the Constitution.

The states, by contrast, possess a general police power—an inherentauthority that is then limited by both the state and federal Constitution. A governor or state legislature can often act without a specific grant of power. The power to act is presumed, absent a specific limitation.

In 1824, the Supreme Court observed in Gibbons v. Ogdenthat sovereign state authority includes the authority to enact "quarantine laws” and "health laws of every description.” Think of it like this: Just as the president and the federal government act at the peak of their powers when national security is threatened, America’s governors are often at the peak of their power when public health is at stake.

Thus, as AEI’s Jay Cost noted in an excellent Twitter threadon police power vs. enumerated power, a governor backed by a state legislature has "the sovereign power to make you go home if you are a menace to ‘public health.’” President Trump, he notes, does not have that power. Thus, governors have broad latitude to order curfews, close businesses, and limit public gatherings.

But what about the First Amendment? Can the government really order churches to close? Doesn’t the First Amendment guarantee free exercise of religion? What about a citizen’s rights of freedom of assembly and freedom of association?

If a state closure order targeted churches—and churches only—the order would almost certainly be unconstitutional. But the state closures orders in response to COVID-19 represent classic examples of a "neutral law of general applicability” that are presumptively lawful under Employment Division v. Smith. If restaurants and bars and movie theaters are closed at the same time, churches won’t enjoy any special protection under the Free Exercise Clause.

Setting aside churches for the moment, the state interest in confronting a recognized, deadly pandemicthat is breaking out on American shores is so strong that most bans on public gatherings will pass even the most exacting legal scrutiny. Even laws that directly curtail First Amendment freedoms will be upheld if they can pass a legal test called "strict scrutiny,” which requires the government to demonstrate that its actions advance a compelling governmental interest and are enacted through the least restrictive legal means.

And with SCOTUS closing up shop there would be no way to appeal these closures on a Federal level even if we wanted to. Or rather it would go before some Obama appointed judge. Great.

Posted by: Timothy Birdnow at 10:54 AM | No Comments | Add Comment
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