The COVID-19 pandemic has raised a lot of health and economic issues, of course, but also a big legal issue — can the government legally isolate or quarantine people who are or might be sick? Can I be forced to stay at home?
The constitution of every state grants “police powers” to the government. For example, the first words in Minnesota’s constitution define the object of government: “Government is instituted for the security, benefit and protection of the people …”
Under the U.S. Constitution’s 10th Amendment and Supreme Court decisions over nearly 200 years, state governments have the right and the duty to control the spread of dangerous diseases within their jurisdictions. The 10th Amendment, which gives states all powers not specifically given to the federal government, allows them the authority to take public health actions, such as setting quarantines and business restrictions.
On the federal level, the Commerce Clause of the U.S. Constitution gives Congress exclusive authority to regulate interstate and foreign commerce. Therefore, the federal government has authority to quarantine to prevent the spread of diseases from foreign countries and between states. The Public Health Service Act grants the federal government authority “to prevent the introduction, transmission, or spread of communicable diseases from foreign countries . . . or from one State“ to another. The Health and Human Services department can apprehend and detain people who are moving from one state to another. Violation of a federal quarantine or isolation order is a crime subject to a fine of $100,000 and one year in jail.
In 1824, the U.S. Supreme Court in Gibbons v. Ogden drew a clear line between the state and federal governments when it came to regulating activities within and between states. Chief Justice John Marshall ruled that police powers (like imposing quarantines) are reserved to states for activities within their borders. When President Donald Trump said recently that he alone has the power to lift quarantines and can overrule a governor, he displayed his complete ignorance of our constitutional form of government.
President Trump suggested last month the possibility of “a national lockdown” to minimize the spread of COVID-19. Three days later he dismissed the idea. Perhaps such a centralized federal quarantine would be effective, but such an order would be unprecedented and unconstitutional under the 10th Amendment. The federal government did not try to do that during the 1918 flu pandemic, which killed an estimated 40 million worldwide, including 675,000 Americans.
The United States Supreme Court said this in 1905 (Jacobson v. Massachusetts): “An American citizen arriving at an American port on a vessel in which, during the voyage, there had been cases of yellow fever or Asiatic cholera, he, although apparently free from disease himself, may yet, in some circumstances, be held in quarantine against his will on board of such vessel or in a quarantine station, until it be ascertained by inspection, conducted with due diligence, that the danger of the spread of the disease among the community at large has disappeared.”
Minnesota has had a law on the books since 2002 spelling out the government’s authority to deal with epidemics. Minnesota Statutes 144.419 to 144.4196 deal with any disease “that can be transmitted person to person and for which isolation or quarantine is an effective control strategy.”
The law defines “isolation” as separation of a person infected with a communicable disease, and “quarantine” as restriction of activities or travel of an otherwise healthy person who likely has been exposed. The Health Department can get a court order to isolate or quarantine people, and any police officer can enforce the order. Isolation or quarantine “must be by the least restrictive means necessary to prevent the spread” of the disease, but may include confinement to private homes or public premises.
People confined must be given food, clothing, medical care and means of communication. Family members have a “right to choose to enter into an isolation or quarantine area,” but if they then pose a danger to public health they can also be quarantined. The statute has a long list of due process rights, including a court hearing within 21 days. No one can be fired from their job for being isolated or quarantined for up to 21 consecutive work days.
Gov. Tim Walz used a different statute (Minn. Stat. 12.31) to issue his shut-down orders, however. That law allows the governor to declare a “peacetime emergency” when an “act of nature . . . endangers life and property”. The governor’s orders, when approved by his Executive Council, have “the full force and effect of law.” So far Gov. Walz has issued about three dozen of these orders. The statute also states that “individuals have a fundamental right to refuse medical treatment [or] testing,” but anyone who refuses may be placed in isolation or quarantine.
So, it seems pretty clear that between the federal and state governments, I can be legally isolated or quarantined if that is necessary to protect me and the rest of the community during a pandemic. We should all be willing to do that much to prevent the spread of a deadly disease.
James H. Manahan is a Harvard Law School graduate and was named one of Minnesota’s Top Ten Attorneys. He now handles family law, wills and probate in the Lake County area, and does mediation everywhere. He writes a regular column on legal issues for the News-Chronicle. He can be reached at firstname.lastname@example.org or jamesmanahan.com.