As we all grapple with the pandemic, questions naturally arise as to our legal rights, and what authority our governments have in response to COVID-19. This will be the first of a two-part series: part one will be a brief discussion of some thoughts about US law and COVID-19. Part two will be a more in-depth discussion of international human rights law as it intersects with the global response to the virus.
A friend recently had some questions on a facebook post about our domestic response to the virus. I’m reproducing the exchange here. Note that it’s off the cuff; there are many dimensions in the US context not discussed, and it will be interesting to see how much of this plays out. Still, I hope the initial thought process is interesting.
Question:
I am so relieved that state and local officials are finally making these very tough calls to restrict social interaction. It's obviously the right thing to do, and the only way we are going to limit the death toll of this pandemic.
I am also curious to know your thoughts on this from a legal standpoint. Is this even constitutional? What about the rights to assemble, move freely, etc.?
My wife and I are limiting ourselves to interacting with only two other people for the foreseeable future. But that's (so far) voluntary on our part. Is it legal for governments to require this of individuals?
Answer:
It’s a great question, and one that I had a lot of interaction with when I was primarily focused on global health and human rights work. Focusing specifically on the US context:
First, government officials do have pretty extensive authority to implement public health measures to stop pandemics. Some of the laws and regs are listed here. They are considered part of the policing power, but that’s not the only source of authority, and the Supreme Court recognized it in part in Gibbons v. Ogden re: interstate commerce, and explicitly for quarantines in this case. That one had a fairly strong statement: “the power of the States to enact and enforce quarantine laws for the safety and the protection of the health of their inhabitants […] is beyond question”. But note: it says ‘states’ (more on this below).
Functionally, that means a wide range of things can happen in the name of public health: travel restrictions, mandatory vaccinations, seized property, quarantines…etc. But the odd piece about all of this is that most of the decision-making actually falls to the state and local public health departments, who receive guidance from the CDC and federal government but have somewhat strong local authority. Mostly, congress has chosen to keep it that way (and it was challenged with a few other epidemics we’ve faced over the years). This translates to a complicated and inefficient patchwork of local responses, but other than at the border, the federal government and CDC are not in charge. It’s a bit odd, and it does make a coordinated response challenging with good leadership in the executive branch, to say nothing of leadership that happens to be too busy nursing a narcissistic personality disorder to react with any sort of sane decision-making. On that note, because there is heightened federal authority at the border, that’s where we could see some more drastic measures from Trump (and possibly re: interstate commerce and travel). It is his favorite focus after all, and we’ve already seen some of it.
Now of course, there are constitutional limits. The very important rights you bring up, in the US context, mostly fall under deprivation of “life, liberty, or property, without due process of law.” That’s probably where we’d see challenges. Without going too far in depth, the government can’t arbitrarily deprive one of liberties, but also, there isn’t an explicit right to do whatever you want in the midst of a public health crisis. If you are quarantined, for example, that’s not an automatic arbitrary deprivation of liberty: there must be a sufficient process to determine that the quarantine is necessary. And here’s where it gets wonky. People are familiar with the “danger to self or others” standard; that could be argued. We gave the executive branch a little more authority in the wake of 9/11; that line of law could come into play. At some point, cases will end up in court, but there is precedent for most of these public health measures so long as they aren’t arbitrary.
My sense is that even with cases that do challenge these measures, as long as they aren’t crazy, judges will likely defer to the public health authorities. So domestically, if the case can be made that these restrictions are in the interest of public health and not unreasonably restrictive, they’ll probably be deemed ok. So your specific scenario: the limitations you and your wife have implemented are smart from a public health standpoint, but could the government order a two-person interaction limit with otherwise healthy people, and arrest you if you break it? That seems unreasonably restrictive. Could they order a quarantine if you’re diagnosed? Likely yes. Of course, the check on something wild is the courts (and in a fringe case, a constitutional challenge is totally possible). If this feels messy, that’s because it is. The rules aren’t super clear, and courts could end up all over the place until the Supreme Court steps in, and I think it would end up the same way: largely deferring to the public health authorities.
Now I’ve already written a novel, but as it’s my true area of focus, I just have to note that there is also an entire framework of international human rights law to which the US is either bound or must not undermine, which also comes into play re: health, rights to freedom of assembly, movement, self-determination, due process, bodily integrity, etc. [This will form part two!] For the most part, the above inquiry should satisfy that, but the international standards are a bit different and more extreme measures may violate human rights law. We saw a great deal of that internationally in the 80s around the HIV/AIDS crisis, and the upshot is that one MUST respect human rights in public health responses—both to increase the efficacy of the response, AND to increase respect for human rights. This can be complicated—e.g. criminalizing transmission pushes people underground and disincentivizes testing—but as a general rule, respect for human rights and good public health go hand in hand.