Is US headed toward national COVID-19 lockdown? Why Fauci, others say that’s unlikely

With more than 8.1 million coronavirus cases and nearly 220,000 deaths — numbers that grow by the hour — Americans may wonder if the U.S. is in for a national lockdown.

The question is of particular importance now, as infections grow in nearly every state and as some ponder whether former Vice President Joe Biden, if elected president, is planning on shutting the country down. But the real question may be: Is it legal?

Early in the pandemic, President Donald Trump used his federal powers to limit border crossings from Canada and Mexico, prevent foreign nationals from Europe from traveling into the U.S., and require foreign nationals from China to quarantine once entering the country.

Besides that, there isn’t much else he can do on a federal level, Bradley Moss, a Washington attorney specializing in national security issues, told NPR in April.

“It is unclear — absent congressional approval or every state in the union collectively agreeing to it — how any president would have the authority to impose a federal or national quarantine, Moss told the outlet. “[Federal law] is clearly aimed at individuals or specifically identified groups, not the entire country writ large.”

To lock down all of America, Moss says the president would have to “either personally determine, or get the (Centers for Disease Control and Prevention) director to state in writing, that the entire country is reasonably believed to have been exposed to the coronavirus.”

If so, the CDC may issue a federal isolation or quarantine order, but this power is “rarely used,” according to the CDC website — the last time this was enforced was during the Spanish Flu pandemic in 1918-1919.

Dr. Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases, said the pandemic would have to “get really, really bad” for him to push for a national lockdown. Fauci made the comment during a wide-ranging interview on CBS’ “60 Minutes.”

“First of all, the country is fatigued with restrictions. So we wanna use public health measures not to get in the way of opening the economy, but to being a safe gateway to opening the economy,” Fauci said.

At most, the federal government can prevent the introduction of infectious diseases into the U.S. through quarantine and isolation at ports of entry and take measures to prevent spread between states. It gets the power to do so from the Commerce Clause of the U.S. Constitution and section 361 of the Public Health Service Act, the CDC says.

States have ’police power’

It’s really the states that hold the most power during pandemics. They have what experts call “police power functions” to protect people within their borders by enforcing isolation and quarantine measures, sometimes with legal punishments if broken.

But these laws can “vary from state to state and can be specific or broad,” the CDC says. This could explain why the U.S. has seen several different waves of infections across different regions. For example, South Dakota never issued statewide guidance on gatherings, quarantines or other public health measures.

“The U.S. is too large a geographic polity to talk about a single country-wide lockdown. A better comparison would be to the whole of the European Union,” Dr. Farley Cleghorn, epidemiologist and leader of Health Practice at Palladium, told Healthline. “And the [Trump] administration doesn’t have a national plan that can help articulate state and municipal response plans.”

“The appetite for shutting down the entire country is simply not there, and a lack of real borders between states and regions means a hodgepodge of regulations governing travel between states and requirements for infection control,” Cleghorn told the outlet .

“What would work best is more timely testing results, improved state-sponsored contact tracing and isolation, and a more flexible approach to lockdowns at the state level,” he added.

Heather Meade, a healthcare policy adviser and principal of the Washington Council for Ernst and Young, said she also does not think the U.S. will see a national lockdown.

“Protecting the ability of our hospitals to handle viral surges was a major component of many stay-at-home orders,” Meade told Healthline. “That said, there does not seem to be any appetite from governors, the administration, or Congress to encourage a second wave of stay-at-home orders if we can continue to take alternate measures to curb the spread, such as encouraging mask wearing, social distancing, and other public health actions.”