(Bloomberg Opinion) -- The coronavirus called Covid-19 has spread beyond its origin in Wuhan, China, and has arrived on U.S. shores. I’m a law professor, not an epidemiologist, so my thoughts immediately turned to how the law would shape America’s collective response to a broader pandemic — and what the government’s power will mean for individual rights under the Constitution.
It’s a question that could soon become an urgent one — I recently interviewed Marc Lipsitch, the brilliant epidemiologist who runs the Center for Communicable Disease Dynamics at Harvard’s T.H. Chan School of Public Health, for my podcast. Lipsitch told me, very calmly, that based on past pandemics and current information, 40-70% of adults in the world are likely to catch the virus in the absence of strong countermeasures. Between one and two percent of those could die.
Those are frightening numbers. A pandemic of this scale, and the efforts taken to contain it, would likely result in fierce debates over civil liberties as well as legal action. There’s already been one lawsuit, and there will probably be more. (After all, it’s the American Way.)
In China, where the government isn’t burdened by a constitutional tradition that protects civil liberties or an independent judiciary that engages in oversight of the executive branch, the government seems to have been able to order people to stay home and get them to listen. But would U.S. residents do the same?
We’ve already seen one court case about Covid-19 in California. When the federal government, working in conjunction with state public health officials, decided to quarantine Americans who’d been infected with Covid-19 overseas in a disused mental health facility in Costa Mesa, California, local officials went to federal court to try to stop it. Think of it as the ultimate NIMBY suit.
The relevant legal framework doesn’t provide a very strong basis for the city to block the plan. It’s a general principle of local government law that cities are creatures of the state government and subordinate to it. So long as the state of California says it is on board with the plan and agrees with the federal government, the city is basically certain to lose. The same would be true with any other cities or towns looking to defy state and federal officials.
That’s in part because the president clearly has the power to declare a national health emergency and start ordering quarantines. This power comes from Congress, and is conferred on the president by the Robert T. Stafford Disaster Relief and Emergency Assistance Act. As the name suggests, this is the same law that lets the president declare disaster relief emergencies. President Donald Trump invoked this power in late January, when he declared a public health emergency and ordered the quarantine of Americans returning from areas of China where Covid-19 had already spread. Quarantines can also be authorized by the surgeon general, who is specifically given that power by federal law.
But that doesn’t mean states have to obey. As law professor Michael Dorf pointed out in a constitutional overview of the issue he wrote in 2014, the federal government cannot officially commandeer state officials to follow its directives if they don’t want to cooperate. If a state wanted to refuse to cooperate with the federal government, they could conceivably present a more convincing case than the Costa Mesa plaintiffs.
Nevertheless, in the real world of an actual pandemic, it seems very probable that states will cooperate with the federal government and even put their public health and police officials under federal direction — something they’re allowed to do.
As for any individual people who might go to court to challenge a quarantine order, they would be almost sure to lose. The high point of government authority is in responding to an immediate threat to citizens’ life and limb.
By definition, a quarantine limits the freedom of movement of people who are completely innocent of any wrongdoing to serve the overall good of avoiding more infections. Supreme Court doctrine directs that essentially all our individual liberties can be suspended if the government has a compelling interest to do so and if its measures are narrowly tailored to achieving that end. Slowing a pandemic is a textbook example of a compelling state interest; and quarantine is presumably the narrowest available method to do so in the middle of an outbreak.
Where things could get more complicated is if the government directs much or all of the population in a given area to shelter in place — including people who do not have the disease. If this were a mere advisory, individuals could violate it without being subject to legal sanctions. But that might not make people stay put, at least not in every case.
What if the U.S. government, or state governments, issue shelter-in-place orders that last weeks at a time? That possibility is presumably one of the reasons that the government websites are already telling us to stockpile two weeks’ worth of food. Such orders aren’t exactly the same as quarantining the sick — but they aren’t that different either, if they are aimed at preventing people from getting sick.
If days or weeks pass and Covid-19 hasn’t hit an area where people have been staying home, most would likely feel a powerful impulse to get out of the house and start moving around again. The question would then arise of what powers the government has to restrict our movements. If some noninfected people are arrested for leaving their homes, I would expect the courts to get involved again — and the outcomes to be uncertain.
To contact the author of this story: Noah Feldman at firstname.lastname@example.org
To contact the editor responsible for this story: Sarah Green Carmichael at email@example.com
This column does not necessarily reflect the opinion of Bloomberg LP and its owners.
Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”
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