Yes, a National Quarantine Is Constitutional … and Necessary

Kimberly Wehle

As the Wisconsin Supreme Court’s recent decision striking down that state’s administrative stay-at-home order made painfully clear, the state-by-state approach to dealing with the coronavirus crisis is inconsistent and ineffective. The court’s blunt ruling, which made no provision for how to protect the public, prompted throngs of Wisconsinites to pack the bars, gleefully ignoring advice from health officials about the need to maintain social distancing.

With a dozen states emerging from their various lockdown orders over the coming days, the scattershot and potentially life-threatening hodge-podge of state responses is considered one of the nation’s greatest continuing vulnerabilities as it attempts to stanch the spread of Covid-19. Washington state—the first hit hard by the virus—is using a two-phased “Safe Start” approach, providing detailed guidelines for everything from construction sites to drive-in religious services and even car washes. In California, Governor Gavin Newsom required that companies adhere to “new rules,” which include doing temperature and symptom screenings daily for employees. Iowa Governor Kim Reynolds has lifted most restrictions entirely, save for bars and casinos.

There is a solution. And it rests, where it always has, with the federal government.

During the next pandemic—which is all but inevitable—Washington can and should impose an immediate, nationwide program of contact tracing and mandatory quarantine for infected people. The stunningly low death toll in South Korea (fewer than 300 people), which reported its first coronavirus infection on the same day as the United States, has been credited to the country’s policy of aggressively tracing infected individuals’ recent movements and isolating people they may have come in contact with. This common-sense approach, if executed properly in the U.S., would enable many people to go back to their daily lives—inevitably spurring the economy—while at the same time minimizing the spread of the deadly virus by keeping the highest-risk spreaders at home.

A federal order of this magnitude will sound to some like a step toward tyranny. But the question is whether saving thousands of lives and staving off another Depression are worth the price of finite, albeit substantial, infringements on individual liberties. The Trump administration has resisted such drastic measures, shunting responsibility onto the states, but the power is nevertheless within the executive branch, and it can be imposed without violating the Constitution.

Keep in mind that—much like access to health care, abortion, the right to vote and even freedom from the death penalty—Americans’ constitutional rights are highly contingent on their states of residence. This is by design, as the Constitution’s framers believed that maintaining state sovereignty was crucial to ensuring an accountable government and avoiding an accumulation of power in one place. In this moment, an individual’s freedom to move about and associate with friends, family and colleagues (rights that implicate the First, Fourth, Fifth and 14th Amendments to the Constitution) depends on where that person resides. A federal order would level the playing field while minimizing litigation—as only one sovereign would be challenged in court.

One reason the federal government can constitutionally infringe on all kinds of individual rights is that sometimes protecting the greater public good requires it. Threatening the president is a felony even though the Constitution guarantees free speech, for example. Nor does the Second Amendment give every civilian an unqualified right to own military-grade weapons.

By the same token, in 1905, the Supreme Court in Jacobson v. Massachusetts upheld a mandatory vaccine law under the Constitution. It held—in a criminal action against a defendant who refused a smallpox vaccination—that a state can constitutionally “require and enforce the vaccination and revaccination of all the inhabitants thereof” notwithstanding the Bill of Rights. Such a law must be reasonable, not arbitrary, and tailored to the government’s interest in preserving public safety. This category of state power is known as the police power, and it means that states can “enact quarantine laws and health laws of every description . . . to protect the public health and the public safety.”

Significantly, the Jacobson court rejected the defendant’s arguments regarding the “alleged injurious or dangerous effects of vaccination” on him personally. The court was also unpersuaded that “the inherent right of every freeman to care for his own body and health in such way as to him seems best” superseded his susceptibility to a mandatory vaccine. Based on the “testimony of experts” that “regarded vaccination, repeated after intervals, as a preventive of smallpox,” the court reasoned, the benefit to the greater good supplanted the rights of the individual.

Since the discovery of penicillin in 1928, involuntary quarantines have been rare in the United States, although they were common before. In 2014, a number of states implemented quarantines for health care workers and others who had gone to West Africa to during the Ebola epidemic, and two federal courts rejected constitutional challenges to the Ebola-inspired mandates.

Fast-forward to Covid-19. Federal law gives the president extraordinary power to implement a national pandemic response program if he determines that the states aren’t doing enough under the Public Health Service Act, among other laws. Were Trump to take such a step, a national contact tracing program that required infected individuals and their contacts to self-quarantine would likely satisfy Jacobson, which allows for nonarbitrary limits on individual freedom that are tailored to protecting public health. As the Jacobson court explained, “[e]ven liberty itself, the greatest of all rights, is not unrestricted license to act according to one’s own will.”

According to the CDC, contact tracing is a “specialized skill” that requires expertise in patient confidentiality, medicine, interpersonal skills and resourcefulness. For contact tracing to work, it is also important that the government maintain “engaged and supportive” communication with the public, as well as “agile data management systems to facilitate real-time electronic transmission of laboratory and case data for public health action.” We have none of this. All of it would benefit from a coordinated federal response.

It is beyond reasonable debate that the current hodge-podge of state and local rules do not go far enough to protect overall public health, and have not been uniformly enforced—to the extent they exist at all. And the angry wave of anti-mask, anti-governor protests in states such as Michigan, Ohio and California reflects a gross misunderstanding of the law of the land. As the Supreme Court put it, a community has a “right to protect itself against an epidemic of disease which threatens the safety of its members.” Narcissism is not a constitutionally protected value, let alone a right.

Given the widespread outrage over moderate Covid-19-related restrictions, how could a federal quarantine be enforced (even if it were deemed constitutional and even if a fractured public miraculously bought into its wisdom)?

Congress has the constitutional power to raise and support armed forces, without any express limitations, and it can call forth the militia “to execute the laws of the union.” The president, in turn, has the power to “take care that the laws are faithfully executed.” But Congress has long prohibited the federal government from engaging military forces for law enforcement purposes and, for the most part, that law’s exceptions require that there be a specific request or at least cooperation from the states. (The U.S. Coast Guard is an exception to the exception.)

It’s also possible that the current Supreme Court—despite the conservative majority’s apparent sympathies for broad presidential power—might not condone a unified federal response to a pandemic. Constitutional law has evolved substantially since 1905, and the court has never explicitly addressed the propriety of what was known from the 1870s to the early 1900s as “shotgun quarantines,” whereby armed men prevented people infected with yellow fever from entering certain districts. Nor has the court considered the extent to which the federal government could override state and local quarantines as a matter of federalism if Congress were to amend federal laws to give the president more power to protect the nation during pandemics.

One case is instructive. In 1886, the Supreme Court upheld Louisiana’s system of quarantine laws designed to protect against the spread of infectious diseases by vessels coming up the Mississippi River. In that decision, the court acknowledged that Congress has some power in this area, and that “all state laws on the subject will be abrogated [i.e., overridden] at least so far as the two are inconsistent.” It would benefit the public if, in the wake of Covid-19, Congress were to establish by law some best practices for minimizing another equivalent disaster, thereby allowing the current Supreme Court to weigh in on the laws’ constitutionality in light of modern threats to public health.

At the dawn of the 21st century—as megaviruses like Covid-19 become the new normal-abnormal—government quarantines may well return with regularity. State governors and legislators, local authorities, Congress, the executive branch, as well as state and federal judges will all be forced to strike the thorny balance between public health and individual liberties. So far, the response to Covid-19 in countries such as South Korea has shown that a reasonably tailored and science-based national contact tracing program would be the gold standard for protecting the public from widespread illness and death.

Yet as things stand under the Trump administration, Americans will likely wind up shuttered and reshuttered for longer than we might have been under an urgent national quarantine. And the personal costs in lives and livelihoods will be predictably dire.