I want to address two questions. First, what can and can’t the government do in restricting liberties to stop the spread of COVID-19? Second, what is the respective constitutional authority of the federal and state governments in dealing with the pandemic?

I. Civil Liberties in a Pandemic

There have been very few Supreme Court cases involving the government’s power to deal with the spread of communicable diseases. The most important decision is Jacobson v. Massachusetts, which was decided in 1905.[1] The Supreme Court upheld the constitutionality of a state law that required compulsory vaccinations against smallpox. The Court declared, “Upon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.”[2]

The Court explicitly rejected the claim that “liberty” under the Constitution includes the right of a person to make decisions about his or her own health if they will endanger others. But the Court also said that to be constitutional a government regulation must have a “real or substantial relation” to protecting public health. The Court explained that a government action would be unconstitutional if its action “has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution.”[3]

Courts justifiably will give a great deal of deference to the government in dealing with the pandemic, but the constitutional question in evaluating each restriction is whether it has a “real and substantial” relationship to public health. Under this standard, there is no doubt that quarantine, “shelter in place,” and closure requirements are all constitutional ways of stopping the spread of a communicable disease even though they restrict freedom.

Throughout American history, quarantine orders have been upheld as valid exercises of the police power possessed by state and local governments. Early in American history, Philadelphia imposed a quarantine to stop the spread of yellow fever.[4] In 1799, Congress, by statute, recognized the power of states to impose quarantines.[5] In 1926, the Supreme Court said that “a state, in the exercise of its police power, may establish quarantines against human beings, or animals, or plants.”[6] Most recently, in 2016, a federal district court in New Jersey upheld a quarantine order for a nurse who had returned from Africa after treating Ebola patients.[7]

This power, though, is not unlimited, and courts should invalidate state or local quarantine orders if they do not have a “real and substantial” relation to public health. In 1900, a federal district court declared unconstitutional a quarantine order in San Francisco to stop the spread of bubonic plague because it was “clear that it is made to operate against the Chinese population only” and was based on racism, not public health needs.[8]

At this stage, when COVID-19 is the leading cause of death in the United States on a daily basis, courts unquestionably should uphold orders for quarantine, shelter in place, and closure of non-essential businesses. All are designed to stop the transmission of a highly communicable disease that if left unchecked could overwhelm the health care system.

These orders are constitutional even when they preclude people from assembling for religious worship.[9] A number of lawsuits have been filed by those who wish to gather for religious services.[10] But the Supreme Court has been clear that there is no exception to general laws for religion.[11] Moreover, if people gather in large groups for this or any other purpose there is the serious risk of spreading COVID-19. On the other hand, if the religious service would involve people staying in their cars in a parking lot—a drive-in service that some have proposed—there would not be a public health reason to stop the gathering because it would not involve interpersonal contact.

But this does not mean that the government can do whatever it wants in the name of stopping the spread of a communicable disease. There is the danger that government might use its power as an excuse for unnecessary restrictions on freedom. This has occurred in other countries. Hungary has cancelled elections. Israel has shutdown its courts. Thailand and Jordan have restricted speech critical of the government.

We have seen unnecessary restrictions on freedom in this country as a number of states have adopted regulations preventing abortions, including medically induced abortions that involve no surgical procedure at all.[12] Such restrictions have no “real and substantial” relationship to stopping the spread of COVID-19. They are nothing but an attempt to use the crisis as a pretext to impose limits on abortion.

II. Federalism in a Pandemic

On several occasions President Trump has claimed that he has the authority to overrule the decision of governors and order the reopening of the economy. On April 13, President Trump sent a tweet, “For the purpose of creating conflict and confusion, some in the Fake News Media are saying that it is the Governors decision to open up the states, not that of the President of the United States & the Federal Government. Let it be fully understood that this is incorrect....It is the decision of the President, and for many good reasons.”[13] Even more chilling, later that day, he said, “When somebody is the President of the United States, the authority is total.”[14]

Such a statement is inconsistent with the most basic notions of checks and balances. As a matter of federalism, it is the states that have the power to issue quarantine and “shelter in place” orders. Absent a federal statute (and no such law exists), the president has no authority whatsoever to lift the public health orders imposed at the state and local level. President Trump can urge governors to do so, but he is limited to his powers of persuasion.

It is basic constitutional law that state governments have the police power and can do anything that is not prohibited by the Constitution. The federal government can act only if there is authority granted by the Constitution. The police power long has been understood to give the states the ability to take needed actions to stop the spread of communicable disease. In 1905, in Jacobson v. Massachusetts, the Court explained that “the police power of a state must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety.”[15]

For the president to act, there must be constitutional or statutory authority. Nothing in the Constitution can be interpreted as giving the president the power to overrule state and local governments who choose to impose quarantine orders. There is no clause in the Constitution—and one certainly would have been anathema to the framers who distrusted executive power—that bestows on the president broad powers to act in an emergency. For example, during the Korean War, the Supreme Court emphatically held that President Truman could not seize the steel mills even though he claimed that continued steel production was essential to the war effort.[16]

Congress is granted the power to regulate commerce among the states and conceivably could pass a law to require that businesses reopen. But it is has not done so and is unlikely to at this stage of the pandemic.

In fact, the key federal statute governing the authority of the federal government to respond to public health emergencies—the Public Health Act—is clear that the federal government does not have the power that President Trump is claiming. The statute gives to the Surgeon General the power to take actions to stop the “spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession.”[17] Ordering businesses to open could not possibly be seen as an action to stop the spread of communicable diseases.

Moreover, a provision of the Act explicitly states that it does not preempt state and local public health regulations, stating that “[n]othing in this section . . . or the regulations promulgated under such sections, may be construed as superseding any provision under State law.”[18]

Simply put, it was not President Trump who ordered the closures, it was the governors, and it is not President Trump who can end the closures. To be sure, he can exhort state governors to lift their quarantine and shelter orders. Some might listen. But he has no power to mandate the opening of businesses and we all should be frightened when a president tells us that his “authority is total.”

Conclusion

I expect an enormous amount of litigation to arise from government actions to stop COVID-19. Many new legal issues will come up. But some of the basic principles are clearly settled.

Erwin Chemerinsky: Dean and Jesse H. Choper Distinguished Professor of Law, University of California, Berkeley School of Law.

1. 197 U.S. 11 (1905). ↑

2. Id. at 27. ↑

3. Id. at 31. ↑

4. Mark A. Rothstein, From SARS to EBOLA: Legal and Ethical Considerations for Modern Quarantine, 12 Indiana Health L.Rev. 227, 230 (2015). ↑

5. Act of Feb 25, 1799, 1 Stat 619. ↑

6. Oregon-Washington R. & Nav. Co. v. State of Washington&transitionType=Document&needToInjectTerms=False&enableBestPortion=True&docSource=8f73d18ea7fe4184baf8b42ed27bb78d), 270 U.S. 87, 93 (1926). ↑

7. Hickox v. Christie, 205 F.Supp.3d 579 (D.N.J. 2016). ↑

8. Jew Ho v. Williamson, 103 F. 10, 23 (C.D.Cal. 1900). ↑

9. The same is true to prevent people from assembling for speech. The government may do this to stop the spread of communicable disease, but it cannot regulate the content of the message being expressed. ↑

10. See On Fire Christian Center, Inc. v. Fischer, F.Supp.3d , 2020 WL 1820249 (W.D.Ky. April 11, 2020) (issuing preliminary injunction against city action which was seen as stopping religious worship). ↑

11. Employment Division v. Smith, 494 U.S. 872 (1990). ↑

12. See, e.g., South Wind Medical Center LLC v. Stitt, F.Supp.3d (W.D. Okla. April 6, 2020); Robinson v. Marshall, F.Supp.3d (M.D. Ala. April 3, 2020); Planned Parenthood Center for Choice v. Abbott, F.Supp.3d (W.D.Tex. March 30, 2020). The Fifth Circuit initially upheld the Texas law, but then modified its order to not apply to medically induced abortions. In re Abbott, F.3d (5th Cir. 2020). ↑

13. Quint Forgey & Josh Gerstein,“Trump: It’s my decision, not governors’, to reopen country,” Politico (April 13, 2020) https://www.politico.com/news/2020/04/13/trump-governors-decision-reopen-183405. ↑

14. Charlie Savage, “Trump’s Claim of Total Authority in Crisis Is Rejected Across Ideological Lines, N.Y. Times (April 14, 2020) https://www.nytimes.com/2020/04/14/us/politics/trump-total-authority-claim.html. ↑

15. 197 U.S. at 25. ↑

16. Youngstown Sheet and Tube v. Sawyer, 343 U.S. 579 (1952). ↑

17. 42 U.S.C. § 264. ↑

18. Id. at (e). ↑