March 27, 2020
By Timothy Sandefur
To date, twenty-one states have issued some kind of “shelter in place” order in response to the coronavirus pandemic, as have counties in many other states. As The Dispatch’s David French has helpfully explained, state officials have broad authority to impose such restrictions, but the details can be complicated and raise important legal questions. Here are answers to some of those burning questions:
1. Are these orders constitutional?
Yes. State officials have had the authority to issue quarantine orders since before the U.S. Constitution was written. As law professor Laura Donohue explains in this extraordinarily thorough and helpful article, this quarantine authority has never been changed. The Founding Fathers lived in an era in which infectious disease epidemics were commonplace, and they anticipated that this authority would be exercised primarily at the state level.
2. Can states limit interstate travel?
Florida Governor Ron DeSantis issued an order this week specifically targeting people who fly into the state from “an area with substantial community spread”—and requiring that they be isolated or quarantined for two weeks. This is also within Florida’s constitutional authority. Although the Constitution gives Congress power to “regulate commerce” between states, the Supreme Court has made clear since the famous 1824 case of Gibbons v. Ogden that this did not deprive states of their power to impose “quarantine regulations and health laws of every description”—laws that allow states even to require “the destruction of private property when infected with disease or otherwise dangerous.”
Since then, the Court has upheld state authority over quarantine restrictions—including limits on state-to-state travel. In the 1886 case of Morgan’s Steamship Company v. Louisiana Board of Health, the Court upheld a Louisiana law that required ships on the Mississippi—including those traveling state-to-state—to pass through a quarantine station. The justices made clear that while the federal government can preempt these laws, states are free to act until Congress does so. That principle has remained in place since. As the Court put it in the 1913 Minnesota Rate Case, “Quarantine regulations are essential measures of protection which the states are free to adopt when they do not come into conflict with federal action.”
Congress has passed some laws on the subject—most significantly the Stafford Act of 1988—but these laws mostly give states the leading role, and they don’t deprive states of the authority to limit state-to-state travel for quarantine purposes.
State authority over such matters is, by and large, a good thing. Our federalist structure was designed to enable quick response to local conditions and to limit one-size-fits-all nationwide action to those circumstances where it’s warranted. That system was, again, created by people for whom epidemics were a regular fact of life. They knew that the right response to an outbreak of disease in Vermont might not be the right response in Virginia, and that national action was more likely to harm than help. Local control is not always wisest—far from it; local government can be oppressive at times and should be balanced by federal legal protections—but it’s generally better suited to respond to local circumstances.
3. What do the “shelter in place” orders actually say?
Although strongly phrased, many of the orders now in place allow “essential” services to continue operating. As the Cato Institute’s Ryan Bourne observes, there’s really no such thing as a distinction between “essential” and “non-essential” businesses. Still, state governments are struggling to balance between the need to slow infection and the need to avoid creating a long-lasting economic catastrophe that would ultimately worsen things, in part by destroying our ability to help the sick and prevent the spread of disease.
So what qualifies as “essential”? California’s order requires people remain home “except as needed to maintain continuity at operations of the federal critical infrastructure sectors” as specified on a list established by the Department of Homeland Security. That list, however, is remarkably expansive. In fact, the Department says it’s “appropriately broad to include a wide range of stakeholders who either directly or indirectly enable the functionality of infrastructure systems”—which is a bureaucratic way of saying it’s purposely vague. It includes everything from “financial institutions [that] vary widely in size and presence” to “motion picture studios,” “casinos,” and “self-storage” facilities. And the order doesn’t just keep these open; it also allows any business that’s “needed to maintain the continuity” of these businesses to remain open. This is a good thing: California’s economic engine is needed to help keep products flowing to people staying home.
New Mexico’s closure order is stricter, but its definition of “essential” still includes things such as television and radio stations, auto-parts stores, custodians, and restaurants. These may remain open provided they “adhere to social distancing protocol and maintain at least six-foot social distancing from other individuals, avoid person-to-person contact…direct employees to wash their hands frequently,” and “ensure that all surfaces are cleaned routinely.” (This, of course, makes clear that non-“essential” businesses could also be re-opened on the same conditions.) Arizona Governor Doug Ducey took the unusual step of issuing an order that, instead of closing “non-essential” businesses, prohibits the closure of “essential” businesses. It defines this term in a detailed list that stretches several pages and includes everything from accountants to daycare facilities. This essentially delegates limited authority to city and county officials while retaining the power to override their decisions if the Governor deems it necessary.
It appears that none of these orders override existing legal obligations. That’s probably wise. For instance, a strict stay-at-home order would put legally separated couples who share custody of their children in an awkward position, since many are legally required to travel with their children. The Marin County Bar Association in California has put together a helpful list of advice for parents in that situation. The bottom line is: Continue following your court order…and find ways to cooperate and reduce stress in this difficult time.
(You should, of course, consult your own lawyer if you have any legal questions, and carefully read all orders issued by your own state and local officials. Also, you should take reasonable precautions even if your local government has not issued such orders.)
In short, while “stay home” orders do exert some authority by closing certain businesses—especially restaurants, bars, and gyms—they still remain largely advisory, amounting to extremely urgent requests. Most don’t override existing legal obligations and don’t command the seizure of property or the arrest of individuals, except in some limited circumstances.
Given the power state officials actually could exercise if they chose, that’s a pretty moderate response—and moderation is almost certainly the wisest course. Proposals by some local officials to, for example, turn off water or electricity for businesses that remain open seem extremely short-sighted. (What about fire sprinklers and burglar alarms?)
4. Could the federal government order states to lift these orders?
The answer is essentially no. Except where a state order interferes with federal authority (say, access to a military base), federal officials currently have no explicit authority to directly override state “shelter in place” orders. It’s conceivable that Congress could pass a law that does so, but that would be a complicated undertaking, and there’s no proposal to do so at present. In theory, the President could invoke federal emergency authority under the Stafford Act in spite of a governor’s order and force the reopening of certain facilities, but it’s hard to imagine how such an extreme step could actually be carried out in practical terms.
That said, the federal government could exert pressure on states if it chose to: It could, for example, target spending in ways that rewarded states for withdrawing their “stay home” orders, or withhold certain kinds of aid from states that, in the feds’ eyes, go too far.
Still, the question of dealing with epidemics has, both historically and constitutionally, been left to state officials, with the federal government providing assistance and dealing with nationwide matters such as international travel. Stressful as the present crisis is, there’s no reason to question that scheme today.
Timothy Sandefur is the Vice President for Litigation at the Goldwater Institute.