Response to coronavirus could test limits of government powers

Coronavirus lockdowns abroad are raising questions about the upper limits of government power as health officials in the U.S. and around the world scramble to slow the spread of infection.

The U.S. public health toolbox contains a host of potential measures, ranging from gentle prodding over hand washing, to more severe actions like prohibitions on large gatherings and even sharp restrictions on the movement of infected individuals.

“In the U.S., quarantine is the most extreme use of government power over people who have committed no crime,” said Polly Price, a professor of law and global health at Emory University.

Currently, no government in the U.S. — federal, state or local — has proposed anything resembling the kind of large-scale quarantine put in place in parts of China’s Hubei province, the epicenter of the outbreak.

But as an increasing number of American jurisdictions declare a state of emergency, and officials consider more serious responses, legal experts note that tighter restrictions will face even higher constitutional hurdles.

“In times of emergency — including public health emergency — the temptation to violate individual rights is at its greatest, and the courts have often been called on to defend the rights of the vulnerable,” said Harvard Law professor Glenn Cohen.

More than 118,000 coronavirus cases and more than 4,200 deaths have been confirmed worldwide, according to data compiled by Johns Hopkins University. The United States has seen more than 800 cases and at least 28 deaths since tracking began in late January. 

State officials in New York, which has the highest number of active cases, 173, announced on Tuesday that they would deploy the National Guard and create a containment zone around the city of New Rochelle in Westchester County as the coronavirus spreads.

Under the plan, the National Guard will deliver food to homes and help with the cleaning of public spaces in the containment zone. Meanwhile, schools and other large gathering facilities within the zone, such as community centers and houses of worship, will be closed.

The move followed a declaration by Gov. Andrew Cuomo (D) on Saturday that New York was under a state of emergency. To date, at least 10 states have declared a state of emergency due to concerns over coronavirus.

Top U.S. health officials have tried to soothe public anxieties while also preparing the country for more robust government intervention.

During an interview on Sunday, Dr. Anthony Fauci, the head of the National Institute of Allergy and Infectious Diseases, sought to manage public expectations while cautioning that “anything’s possible.”

“I don’t think it would be as draconian as nobody in or nobody out,” Fauci told Fox News, responding to a question about the possibility of widespread quarantines. “But if we continue to get cases like this, particularly at the community level, there will be what we call ‘mitigation,’ where we have to essentially do social distancing, keep people out of crowded places, take a look at seriousness, do you really need to travel, and I think it’s particularly important among the most vulnerable.”

“You know, you don’t want to alarm people, but given the spread we’ve seen, you know, anything’s possible,” he added. “And that’s the reason why we’ve got to be prepared to take whatever action is appropriate to contain and mitigate the outbreak.”

Federal law authorizes the U.S. government to put in place quarantines to block diseases from crossing national and state borders, though most of its public health power comes from the Constitution.

When confronted with legal challenges to public health measures, American courts have generally tried to strike a balance between the government’s authority to protect the population and an individual’s rights.

One consistent thread running throughout the court decisions is that the government is on stronger legal footing when it narrowly tailors its actions and minimizes their restrictiveness.

“The government’s actions — such as trying to force people into isolation or impose quarantine — would be more likely found constitutional if it focuses on isolating individuals or groups who have tested positive or which it has good reason to suspect are exposed to coronavirus,” said Cohen.

“The less individualized that determination, the more constitutionally questionable, especially if it is done … without good reason linking the members of that group, individually, to exposure or risk,” he added.

The courts have previously recognized government authority to quarantine, prevent travel, require vaccinations and make people submit to medical exams, according to Price. Still, defining the scope of public health authority “continues to be a work in progress,” she said.

The relatively small number of cases on the books, many of which were decided long ago, makes it difficult to nail down the precise scope of government public health power.

Perhaps the most famous Supreme Court case, Jacobson v. Massachusetts, dates back to 1905 and deals with the constitutionality of requiring a smallpox vaccination. Major legal decisions about quarantines, which have mostly been decided by state supreme courts, are also quite dated.

“Because the courts have dealt with these questions so infrequently and the key cases are so long ago, it is quite hard to predict the exact limit of the power of the federal or state governments in this area,” Cohen said.

According to Scott Burris, a law professor at Temple University, the limits on government power have less to do with the type of action than with the necessity for the measure.

“Courts are generally reluctant to interfere with emergency measures,” he said, “so prediction is difficult.”

Michelle Mello, a professor of law and medicine at Stanford University, said that as long as federal and state governments can satisfy stringent judicial scrutiny, they “have broad emergency powers to do pretty much whatever is necessary.”   

But Mello and other experts noted that a maximalist approach is not always needed, or even the most effective means of combating the spread of infection.

In cases where people have only incidental contact with someone believed to be infected, Mello said, public health officials will likely continue to encourage voluntary “self-isolation” rather than mandatory orders.

As President Trump and lawmakers negotiate over an economic package to counter the outbreak, more government support in the form of paid sick leave, distance learning opportunities and defrayed health care costs could encourage public buy-in.

“It’s better for everyone when we rely on cooperation and trust rather than command and control,” Mello said.