Quarantine and the Constitution

As the coronavirus crisis continues, what powers do the federal and state governments have to impose quarantine and isolation?
by Kim Wehle
March 20, 2020
Featured Image
WASHINGTON, DC - MARCH 17: U.S. Senate Majority Leader Sen. Mitch McConnell (R-KY) speaks to members of the media during a news conference at the U.S. Capitol March 17, 2020 in Washington, DC. Sen. McConnell said the Senate will pass the House coronavirus funding package in response to the outbreak of COVID-19. (Photo by Alex Wong/Getty Images)

Under Donald J. Trump, the longstanding debate over the proper scope of the federal government’s powers vis-à-vis the states has largely focused on whether there remain any meaningful constraints on the massive powers of the U.S. presidency. Now, with COVID-19 gripping the globe, Americans are looking to the government for protection from uncertainty, chaos, illness, and death. Millions of people are already heeding the advice of medical experts and voluntarily practicing social distancing. Soon, Americans could find themselves confined to their homes by order of the government. It’s scary stuff that strikes at the very heart of individual liberty: the ability to move freely in public without being punished by the government.

What, then, is the scope of the government’s power to confine people to their homes or, worse, to a government-run facility? What are the possible penalties for violating a government-ordered quarantine? And what does the U.S. Constitution have to say about all of this?

Let’s address the last question first. In general, individual states have the power to make quarantine decisions affecting movements within their borders, pursuant to the Tenth Amendment to the Constitution, which leaves to the states “the powers not delegated to the United States.” Such residual powers include what’s generically known as the “police power”—that is, the power to establish laws protecting the health, safety, and welfare of the public. Every state has laws on the books permitting authorities—sometimes the governor, sometimes public health officials, sometimes both—to enact and enforce quarantine and isolation.

Meanwhile, the federal government derives its constitutional authority to quarantine people from the Commerce Clause, which gives Congress the power “to regulate Commerce with foreign Nations, and among the several States.” Thus, the federal government’s quarantine power applies most clearly at the U.S. border and for purposes of preventing the movement of infected people from state to state.

Under its Commerce Clause authority, Congress in 1944 passed the Public Health Service Act, which gave the executive branch power to enforce quarantines. The statute remains in effect today, although it has been amended several times, and although the relevant executive-branch agencies have been repeatedly reorganized and renamed. As it reads now, it gives the surgeon general, with the approval of the secretary of health and human services, the authority to take steps “necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into another State or possession.” The statute also allows the president, via executive order and upon the recommendation of the HHS secretary, to issue regulations that “provide for the apprehension, detention, or conditional release of individuals . . . for the purpose of preventing” the spread of disease.

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On January 31, 2020, HHS Secretary Alex Azar declared a United States public health emergency in connection with the coronavirus. His declaration unleashed massive regulatory powers to infringe on individual liberties in order to stem the crisis.

First, the declaration means that the feds—if they believe that the states aren’t doing enough—can step in and impose a national quarantine. The relevant regulations allow the federal government to step in to manage disease whenever the director of the Centers for Disease Control and Prevention (CDC) “determines that the measures taken by health authorities of any State or possession . . . are insufficient to prevent the spread of any of the communicable diseases from such State or possession.”

Second, if people want to travel across state lines anyway, the federal government can require permits. The regulations provide that “requests for a travel permit must state the reasons why the travel is being requested,” along with the “mode of transportation, the places or individuals to be visited, the precautions, if any, to be taken to prevent the potential transmission”—and whatever else the CDC believes it needs to know about people. Those who receive a permit must “retain it in his/her possession throughout the course” of travel, and can be required to present the permit “to the operators of conveyances.”

Third, the regulations state that the CDC director may, when acting under an executive order, “authorize the apprehension, medical examination, quarantine, isolation, or conditional release” of those who are “reasonably believed to be infected” and moving from state to state. The CDC can also “require an individual to undergo a medical examination as part of a Federal order for quarantine.” (The government is obliged to “arrange for adequate food and water, appropriate accommodation, appropriate medical treatment, and means of necessary communication” for detained individuals, although those terms are undefined.)

But what about the Due Process Clause, which forbids the government from depriving individuals of liberty—here, freedom of movement—without some form of notice and process, i.e., the ability to be heard? (There are actually two Due Process clauses in the Constitution—one in the Fifth Amendment, which applies to the federal government, and one in the Fourteenth, which applies to the states.)

The regulations set forth the “process” that the federal government must follow in issuing a quarantine order, which includes that it provide “an explanation of the factual basis” for it, a promise to reassess the order within 72 hours, and “an explanation of the criminal penalties for violating” the order.

Yep, there are criminal penalties for violating a federal quarantine order. For individuals, they include a fine of up to $100,000 or a year in jail, or both. If the violation “results in a death,” the maximum fine climbs to $250,000.

The regulations disclaim that “nothing in this section shall affect the constitutional or statutory rights of individuals to obtain judicial review of their Federal detention.” All this means is that, if someone is detained, that person can go to court and ask a judge to order the government to release him or her, or, if the person is criminally prosecuted, it means that he or she can mount a defense based on the Due Process Clause or other provisions of the Constitution.

At the end of the day, however, a “right” under the Constitution is only so good as it is enforced. The Constitution does not prevent Congress from passing unconstitutional statutes or regulations in the first place. Nor does it prevent the executive branch from unconstitutionally enforcing quarantine laws. In the event of a mass quarantine in the United States, those battles would end up in the courts, which could decide not to intervene at all on the theory that the countervailing public-safety questions are too weighty for the judiciary.

Where does that leave individual Americans? At the mercy of the people in power and a hope-against-hope that the quality of their judgment will strike the right balance between individual liberties and public safety.

Kim Wehle

Kim Wehle is a contributor to The Bulwark. She is currently a visiting professor and fellow in law and government at American University’s Washington College of Law. She is also a professor at the University of Baltimore School of Law, a former assistant U.S. attorney and associate independent counsel in the Whitewater investigation, and the author of How to Read the Constitution—and Why (HarperCollins).