VIDEO: Cato Experts on Coronavirus and the Constitution

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Recently three legal experts from the Cato Institute hosted a fascinating discussion of recent pandemic-related legal enactments, “Coronavirus and the Constitution.” Ilya Shapiro, Trevor Burrus, and Walter Olson addressed recent moves from local, state, and federal officials, comparing them to similar policies in previous public health emergencies, reaching all the way back to the 18th century.

The Cato panel emphasized that epidemic and pandemic quarantines are very much considered a legitimate police power of the state, no doubt to the chagrin of viewers who are chafing under the severity of stay-at-home orders around the country. Constitutional originalists must acknowledge the widely accepted prevalence of quarantine orders during the founding generation, including one, mentioned by Olsen, to which Alexander Hamilton and his wife were famously subjected during the 1793 Yellow Fever outbreak in Philadelphia. 

U.S. courts have historically been very deferential to assertions of government power made under the auspices of safeguarding public health, especially when highly contagious diseases are concerned. That authority is not unbounded, however. Shapiro pointed out that we have specific legislative provisions governing what restrictions authorities are empowered to enact; the presence of a public health emergency doesn’t simply untie their hands entirely. Federal legislation like the Public Health Service Act (1944) and the much-discussed Defense Production Act (1950) lay out guidance for what enhanced authority is available during emergency conditions.

The authority for enforcing public health measures is also split between state and federal officials. President Trump caused a legal uproar when he suggested on April 13 that he possessed the authority to overturn states quarantine orders enacted by governors, saying “When somebody’s president of the United States, the authority is total.” In fact, most of the control over things like businesses and other public places reopening rests with governors and mayors. States have long enjoyed this authority in questions of public health. Burrus mentioned that as far back as 1824, the Supreme Court has recognized this as a legitimate power, with Chief Justice John Marshall writing in Gibbons v. Ogden that states were free pass “inspection laws, quarantine laws, [and] health laws of every description.”

There are cases in which even state and local quarantine provisions have been struck down, however. In 1900, federal judge William Morrow’s decision in Wong Wai v. Williamson enjoined public health officials in San Francisco from enforcing a quarantine and forced vaccination policy specifically against Chinese-American residents during a bubonic plague scare. Morrow found that directing such a policy against them “as a class, without regard to the previous condition, habits, exposure to disease, or residence of the individual” violated their 14th Amendment rights of equal protection under the law.

This precedent reinforces Shapiro’s comments that, even during an emergency, government policy needs to be applied neutrally and in a way that’s both congruent with and proportional to the threat in question. Thus, it is presumptively legitimate to order houses of worship to close along with all other venues at which large groups might gather, but would be questionable if churches were closed but hair salons and bingo parlors were allowed to remain open.  

Finally, when it comes to potentially challenging any specific policies that have been enacted recently to control the spread of COVID-19, the panelists were very wary of any aggrieved individuals filing lawsuits. Not only, as mentioned, are U.S. courts generally very deferential to public health measures during emergencies, but as a prudential matter, working in the short term through the political process is likely to be far more effective. Olson mentioned the vocal protests and quick reversals made when some state governments initially classified firearms retailers as “non-essential” businesses that would have to stay closed for the duration. Thirty states now have gun stores on their “essential’ lists.

Even when, in Pennsylvania, that decision was likely motivated by a lawsuit filed by the Firearms Policy Coalition, the preferred outcome was the short-term policy change, not a final court verdict that might have been years in the future. Legal challenges filed by individuals challenging stay-at-home policies uniformly affecting residents of a particular state or city are much less likely to generate such a desirable response.