Capitolworks: Just the Facts…. The Coronavirus - Can the US legally quarantine its citizens?

We are all hearing more and more each day about 2019-nCoV, otherwise known as the Coronavirus, and its spread both internationally and domestically. As of the time of this writing, there are 88 confirmed cases in the US spanning coast to coast and two reported deaths. And, the virus is predicted to continue to spread, possibly infecting hundreds of thousands of US residents. However, this blog is not intended to focus on the science or medical aspects of the virus but to look at some of the related federal and state policies that might be challenged should such predictions come true. For example, many countries have imposed both individual and mass quarantines to stop or at least minimize the virus's spread. Does the US federal government have the authority to do the same? If so, from where does the government derive this power? What are an individual's rights in such circumstances? Finally, beyond the federal government, do the states possess their own authority to enact quarantines? Let's see if we can answer some of these questions.

The federal government can impose a quarantine. The power to do so comes from the US Constitution, the Public Health Service Act (1944), and a variety of legal precedent. Article I, Section 8 of the Constitution, otherwise known as the Commerce Clause, provides Congress the authority to regulate foreign and interstate commerce. You may be wondering what interstate commerce has to do with quarantining populations of people?

It's a bit of a winding road. Still, essentially, in 1942, the Supreme Court heard a case known as Wickard v. Filbur in which the Court decided that the commerce clause could be interpreted to enable Congress to regulate commerce within a single state. However, to do so, Congress must determine that the activity within the state would have a substantial effect on interstate commerce. A bit technical, right? More simply stated, the Supreme Court concluded that the federal government could extend its authority over business between states by forbidding one state to move its goods or other business activities across state lines. This same authority has subsequently been applied to issues beyond commerce and has grown to include, among other things, public health. To that end, Congress created the Public Health Service Act (PHSA) two years later, making this power a federal law.

In the years since the passage of the PHSA, several Presidential Executive Orders have expanded the criteria that provide this power to encompass numerous diseases. As a result of the language included in Executive Order 13674, Coronavirus meets the PHSA criteria.

The order, signed in 2014 by President Obama, extends the federal government's quarantine power to all respiratory illnesses capable of being transmitted person to person and which have or may cause a pandemic. So yes, the federal government has the authority to impose a quarantine.

The next question then becomes, how far does this authority extend? As discussed above, the PHSA gives the federal government the power to prevent the entry of contagious diseases into the United States and to take measures to prevent the spread of these diseases between states. It further grants it the authority to seize and detain persons infected with a specified disease.

However, the scope of the federal quarantine power varies based on whether the individual is detained attempting to enter the United States or detained while already present in the country. In the former, the federal government has broad authority to detain any person, including US citizens, entering the US from a foreign country or territory. Recently, the federal government exercised this power when it quarantined American cruise ship passengers upon their return to the US after their potential exposure to the Coronavirus. However, in the case of individuals already in the country, the federal government's authority is much more limited. It may detain an individual only if it has a reasonable belief that the individual is infected and currently in the communicable or pre-communicable stage of the infection. Furthermore, the government must have a reasonable belief the individual is or will soon move across state lines or may spread the disease to others who are or will soon move across state lines.

Yet, as with all laws, there is much room for interpretation. For example, the terms "reasonable belief," "currently in the communicable or pre-communicable stage," and "will soon move across state lines" are all somewhat ambiguous. As applied to the Coronavirus, how does the federal government prove that an individual has plans to travel? How does the federal government define "reasonable belief" so that we know what "reasonable" means? For all of these reasons, one can't help but imagine that these laws and authorities will be challenged in the weeks and months to come.

So, we now know that the federal government possess the authority, within limits, to impose a quarantine on individuals and groups. However, who actually makes the final decision to do so? The ultimate power to issue a quarantine order lies with the Director of the Center for Disease Control and Prevention (CDC). But this power is also limited. For example, the Director must provide a written statement identifying the individual(s) or group of individuals to be quarantined. Additionally, the Director must provide the factual basis for the detainment — that the individual is in a qualifying stage of illness, and they or someone they are in contact with, plans to travel outside of their state. Finally, by law, the Director must then review each quarantine order within 72 hours of its issuance to determine if it is still necessary.

With all of this said, perhaps you are asking yourself the following question; when someone is quarantined, do they have any legal right to appeal the quarantine? The answer is yes. Detainees may request a medical review after the Director's 72-hour assessment. The review, conducted by a medical professional chosen by the Director, attempts to answer two questions: does a reasonable basis exist to believe the individual is infected with the disease? And is the individual in the qualifying stage of their illness? Detainees have the legal right to have an attorney, physician, or other individual present at the review to present evidence on their behalf. Similar to a traditional court, if a detainee is indigent, an individual will be appointed by the Director to advocate for them in their review.

Once the medical review is completed, the reviewer delivers a written report of their findings and recommendations to the Director. Detainees have the option of submitting their own documents contesting the report's findings and recommendations. The Director then, in his or her discretion, decides whether to grant the detainee's release from quarantine.

Quarantined individuals also have the right file suit in federal court, alleging their quarantine is unconstitutional. By law, the federal government, when infringing upon citizens' rights, is required to use the least restrictive means possible. However, realistically, this challenge would likely fail as the government has an overwhelming need to contain the outbreak. Additionally, detainees may argue Coronavirus is not an eligible disease under the PHSA, making their detention illegal. However, as previously mentioned, executive orders have greatly expanded the number of eligible diseases, and under the PHSA as written, the virus would be considered eligible.

Finally, what about an individual state? Let’s say a state has decided that the virus warrants a quarantine of the entire state but the federal government has not yet declared such a quarantine? Can the state impose its own quarantine? The answer is yes. This particular power comes from the Tenth Amendment to the Constitution, which grants the states all rights and powers not delegated to the federal government. This includes the state's "police power" from which the states derive the authority to enact and enforce laws within their boundaries. Though the scope varies state to state, each has enacted some form of quarantine law granting the state government the power to quarantine infected individuals. A complete list of the quarantine laws and regulations for each state can be found here.

That was a lot of very technical and complex information so let’s try to simplify all that we have just said. The simple takeaways are as follows: (1) both a state and the federal government have the power to impose a quarantine on an individual and/or a larger population (2) these powers are not without limitations (3) the Coronavirus appears to fall within the categories of diseases identified by the PHSA. If predictions regarding the spread of the virus are accurate, we have yet to experience its full impact in the US, making it impossible to determine precisely how our federalist government will respond. In the meantime, however, we hope this blog has offered some insight into the laws that govern quarantine in the US and if, how, and when they can be executed.

Contributing Author: Brett Morgan