The extent to which the government can limit our freedom of movement has been called into sharp relief by the Coronavirus and the swell of Social Distancing and Stay-At-Home orders. Read on to find out where these powers originate and who controls your most controversial rights.
The Attorney General has recently made it clear that the Department of Justice may intervene in cases where a citizen is suing their state for the easing of Quarantine or Stay-At-Home Orders by filing a Statement of Interest that supports the Plaintiff against the state. This creates a tension between the Federal and State Governments and may end in severe erosion into State’s Rights.
Federally
Coronavirus Restrictions – Where does the Power Come from?
As we are all facing restrictions on our freedoms and feeling more and more contained and controlled by the government, questions may arise on where their power to order us into quarantine comes from and why.
The Commerce Clause (Article 1, Section 8, Clause 3) of the U.S. Constitution guarantees to Congress the power to “regulate commerce with foreign Nations, and among the several States, and with the Indian Tribes.” This clause is the Constitutional basis on which the Federal Government may seal the national and state borders.
The Public Health Service Act (42 U.S. Code) was the act that established the Federal Governments’ quarantine authority and was originally part of the Treasury Department as the Quarantine and PHS (Public Health Service), before becoming the agency known as the Centers for Disease Control and Prevention in 1967.
Section 361 of the Public Health Service Act (42 U.S. Code § 264), gives the U.S. Secretary of Health and Human Services the power to prevent the spread of infectious diseases by the “apprehension and examination” of people who are believed to have been infected or exposed.
Centers for Disease Control and Prevention
The CDC may monitor, quarantine, or detain a person traveling from a foreign country into the United States or a person moving between the states suspected of carrying or exposure to Coronavirus. The CDC may detain the passengers or crew of a plane or ship when alerted to an illness on board that may be caused by the Coronavirus.
State Governments
States have laws to protect the health of those within their borders and may also pass legislation, Executive Orders, or other measures to add to and supplement those laws in times of need. The current situation has led to many state governors creating executive orders on Social Distancing and Stay-At-Home measures to keep their citizens safe.
The states have the power to promote public health and welfare under the 10th Amendment of the U.S. Constitution, which states that any powers not reserved to the Federal Government and not prohibited to the individual state, belong solely to the state or the people. An example of this is the ability to reopen the country by the suspension or removal of Social Distancing and Stay-At-Home orders that have been placed into law by a state legislature or executive orders at the state level. The state governors have put the orders in place and will also be the ones to remove them as the Constitution does not provide a mechanism for the President to override these orders.
Quarantine
The criteria under which a Quarantine Order is reviewed and considered by the court established in the landmark case of Wong Wai v Williamson[i]. The case dealt with quarantine applied in a way that quarantined many Chinese residents of San Francisco but did not contain white residents in the same area. The lawsuit also established that there must be
- a public health necessity
- effective intervention in which the means justifies the ends
- proportionality
- quarantine or isolation, the least restrictive means are used to contain the virus.[ii]
The order should be applied in a way that is compliant with your 14th Amendment right to equal protection of the laws and due process under the law.
Enforcement
Breaking a Federal Quarantine Order is punishable by fines and imprisonment. Local and state governments have also begun enforcing their Stay-At-Home orders with fines and imprisonment. Protestors in several states have called into the spotlight, the tension between freedom of speech, freedom of movement (habeas corpus) and the strictures imposed by the Quarantine Orders.
States have imposed fines or arrested quarantine and social distancing lawbreakers. Florida has a Quarantine Order that is a second-degree misdemeanor for breaking, the consequences of which could be a fine up to $500, up to 60 days in prison, and the possibility of 6 months’ probation.[iii] Fifteen were arrested at a funeral in New Jersey amid their Coronavirus Quarantine Order after the crowd refused to disperse.[iv] In Hawaii, four people were arrested for violating a 14-day Quarantine Order for those entering the state.[v] These are examples of many of the consequences faced by Quarantine Order violators.
Reopening
The President has created a three-step reopening plan that he recommends for governors to follow. The gating criteria that must be satisfied before stage one reopening recommends that the state has experienced at least a 14-day decline in reported influenza-like illnesses as well as a “downward trajectory”[vi] of cases that have tested positive. If these criteria are met, some businesses will be allowed to reopen if they continue to require Social Distancing. At stage two and three, the same gating criteria should be achieved so that only with a continued downward trend in cases would the state advance to the next phase.
Some states, however, are keen to reopen despite not yet meeting these gating criteria amid concerns over the economy. Small groups of protestors have also put pressure on the state governments to consider easing their measures.
To add to the confusion, Attorney General William Barr has recently stated at a press conference that the Department of Justice would support legal action taken by citizens against their state government if the state is not reopening quickly enough. An individual who brings suit against the state for the remedy that the state is forced to reopen despite the governor being reluctant to will have the backing of the federal executive branch of government through the DOJ’s intervention.
Attorney General William Barr, when questioned on the governors who are not yet willing to ease Social Distancing Orders, stated that they are going to investigate:
“And if we think one goes too far, we initially try to jawbone the governors into rolling them back or adjusting them. And if they’re not and people bring lawsuits, we file statement of interest and side with the plaintiffs.”[vii]
Generally speaking, a person may not sue a state; this is due to the state having Sovereign Immunity under the 11th Amendment to the U.S. Constitution. However, if the state government violates a right protected under the U.S. Constitution, the state may be sued in either the state court or federally. The state may also waive its Sovereign Immunity to allow a person to sue if the actions of the state have injured that person. The Plaintiff is more likely to open a federal suit because the state judge may feel some pressure from the governor or the state voting population, if they intend to run for reelection, to find that the right is not violated.
The Department of Justice may file a statement of interest in a lawsuit. Which means that even though they are not a direct party to a case they have an interest in the outcome and would like to be heard. The judge is under no onus to follow the DOJ’s interests, but it may help sway the way the court views the case. The DOJ would be filing a statement saying that they concur with the Plaintiff. That the state should be opened back up.
Whether or not you agree with the lifting of Quarantine Orders early by governors, this conflict has more profound implications because it concerns the federal government making a challenge to the sovereignty of the state. The Federal Government has so much as said that if the states do not open at the Federal Government’s timeline, then they will be sued by a citizen who will have the DOJ’s support.
There are many people out there watching how this plays out because they want to reopen their businesses. Once one state has been sued then it will not take much for a whole swath of lawsuits to appear demanding the opening of the states. These legal actions, supported by the federal government, maybe an egregious erosion into state’s rights.
[i] 103 F. 384 (N.D.Cal. 1900), Wong Wai v. Williamson – Federal Cases – Case Law – VLEX 595184566, https://case-law.vlex.com/vid/103-f-384-n-595184566 (last visited Apr 22, 2020)
[ii] Quarantine and Liability in the Context of Ebola, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4869076/#B8 (last visited Apr 22, 2020)
[iii] Arrested for Breaking COVID-19 Quarantine in Florida? | Rossen Law Firm, https://www.criminal-defense-dui.lawyer/blog/arrested-for-breaking-covid-19-quarantine-in-florida-.cfm (last visited Apr 23, 2020)
[iv] 100-year-old NJ man arrested for alleged quarantine violation, https://nypost.com/2020/04/02/100-year-old-nj-man-arrested-for-alleged-quarantine-violation/ (last visited Apr 23, 2020)
[v] Authorities arrest 4 visitors for violating state’s mandatory quarantine, https://www.hawaiinewsnow.com/2020/04/21/authorities-arrest-visitors-violating-states-mandatory-quarantine/ (last visited Apr 23, 2020)
[vi] Opening Up America Again | The White House, https://www.whitehouse.gov/openingamerica/ (last visited Apr 23, 2020)
[vii] DOJ Would Support Legal Action If Governors’ Restrictions Go “Too Far,” Barr Says NPR.org, https://www.npr.org/sections/coronavirus-live-updates/2020/04/21/840262570/barr-open-to-legal-action-if-governors-restrictions-go-too-far (last visited Apr 22, 2020)
Bibliography
- DOJ Would Support Legal Action If Governors’ Restrictions Go “Too Far,” Barr Says NPR.org, https://www.npr.org/sections/coronavirus-live-updates/2020/04/21/840262570/barr-open-to-legal-action-if-governors-restrictions-go-too-far (last visited Apr 22, 2020)
- LEGAL AUTHORITIES FOR ISOLATION AND QUARANTINE | QUARANTINE | CDC, https://www.cdc.gov/quarantine/aboutlawsregulationsquarantineisolation.html (last visited Apr 22, 2020)
- Price PJ. Quarantine and Liability in the Context of Ebola. Public Health Rep. 2016;131(3):500–503. doi:10.1177/003335491613100316
- 103 F. 384 (N.D.CAL. 1900), WONG WAI V. WILLIAMSON – FEDERAL CASES – CASE LAW – VLEX 595184566, https://case-law.vlex.com/vid/103-f-384-n-595184566 (last visited Apr 22, 2020)
- ARRESTED FOR BREAKING COVID-19 QUARANTINE IN FLORIDA? | ROSSEN LAW FIRM, https://www.criminal-defense-dui.lawyer/blog/arrested-for-breaking-covid-19-quarantine-in-florida-.cfm (last visited Apr 23, 2020)
- Opening Up America Again | The White House, https://www.whitehouse.gov/openingamerica/ (last visited Apr 23, 2020)
- 103 F. 384 (N.D.CAL. 1900), WONG WAI V. WILLIAMSON – FEDERAL CASES – CASE LAW – VLEX 595184566, https://case-law.vlex.com/vid/103-f-384-n-595184566 (last visited Apr 22, 2020)
- 100-year-old NJ man arrested for alleged quarantine violation, https://nypost.com/2020/04/02/100-year-old-nj-man-arrested-for-alleged-quarantine-violation/ (last visited Apr 23, 2020)
- AUTHORITIES ARREST 4 VISITORS FOR VIOLATING STATE’S MANDATORY QUARANTINE, https://www.hawaiinewsnow.com/2020/04/21/authorities-arrest-visitors-violating-states-mandatory-quarantine/ (last visited Apr 23, 2020)