Do State Public Health Orders Conflict with the Constitution?

“Militia” groups protesting orders show the influence COVID-19 has had in the US. Many Americans currently struggle to feed their families and may not have jobs when this is over. The realities are grim. Still, the arguments against the powers belonging to a governor remain thin.

Emergency actions have limited personal freedom, which is not automatically at odds with the Constitution. The Harvard Law Review states:

“Rights limitations are typically permitted when they are narrowly tailored to their intended goal… because rights are never absolute, it may not be necessary to declare a constitutional emergency: government can combat crises through law, as long as any restrictions of civil liberties are necessary and proportional.”

The U.S. Federalist system gives the federal government only the powers stated in the Constitution. The 10th Amendment preserves all powers beyond that for states and the people. Using that power when needed and as intended is not at odds with the Constitution — a document people can disagree with but not ignore.

The founders structured power such that public health response was left to local or state-level leadership. That’s also practically wise since what New York needs will not be the same as what Iowa needs, but the aims of the orders will always be identical: protect the public’s health.

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Measures within the state’s power using existing legal precedent:

• Isolating people who test positive for an infectious disease
• Quarantine — this has both a legal and everyday meaning, and these are not the same — confines someone who has been exposed to the virus to see if they get sick
• Closing businesses likely to spread the virus quickly that are not essential — gatherings with many people, shared items that go person-to-person
• Shelter-in-place
• Vaccination mandates under penalty of fine, job loss, or jailing

Measures that flirt with the legal limits:

• Cordon sanitaire: strict isolation of a specific area by land, air, and sea under threat of epidemic
• Anything that unfairly targets a specific group, like non-state residents
• Confining a group of people in a specific location, like the Diamond Princess cruise
• Orders that are broad or too general and unsupported by science
• Military-style policing of people to make them follow orders or strict enforcement where people may be hurt or imprisoned

Measures listed within a state’s power have traditionally been upheld and do not conflict with the Constitution when meeting specific requirements.

The actions may not be arbitrary and must apply equally. A shelter-in-place order that applies to Asian Americans only, for example, would be unconstitutional. Ordering everyone to wear magical protective hats because a governor feels they would help falls short of the requirements and is unconstitutional. Mandates may not target a certain subgroup or be discriminatory. Outbreaks have a notorious history of providing cover for discriminatory behavior.

• In the early 1900s, elected officials enacted public health orders to control the spread of the plague.
• Enforcement was unequal and targeted Chinese immigrants, making the order illicit, but these measures may have been legal if equally applied.
• The discrimination, and not the restriction, rendered it unlawful.

States possess “policing powers” to enact statutes and regulations to protect public health. This is not “police” like law enforcement, but “police” like the state may police the public’s health. The power to police the public’s health in a crisis implies a duty to do so. It is the responsibility of a just leader, not an attack on freedom. Measures taken to ensure society survives without extreme loss can be licit.

“The police power is the right of the state to take coercive action against individuals for the benefit of society.”

“The police power is very broad, encompassing not only traditional public health, but environmental law, and any other area where the government acts to protect health and safety. The Constitutional roots of the police power are deep. The colonies were ravaged by communicable disease.

There was a yellow fever epidemic raging during the writing of the Constitution...It is not surprising that the Constitution, shaped in this environment, would grant the state great latitude in enforcing laws to protect the public health.”

— (Richards, 1999)

States have broad authority — shockingly broad, to be honest, though the reasons are also clear— over the business and school operations. The measures must be ethical and represent the least invasive way to achieve the end. Emergency declarations permit governors to access funds and powers not ordinarily accessible, and some of that power is extreme. These have been expressly designated to them by Congress in legislation [1].

In an emergency, state orders may preempt local orders.

The federal government lacks the power to order widespread closures or openings of businesses or schools and has limited power to order social distancing, though it can act to prevent the interstate spread of disease.

• The federal government may not order states to adopt them — excepting orders that come through existing federal powers — but it can issue recommendations and guidelines and may, sometimes, reward states following the recommendations with funding.
• This may not be coercive. When the ACA rolled out under the Obama administration, it penalized states by cutting funding to states that refused to expand coverage. That was coercive.
• Instead, the Obama administration rewarded states for expanding access with additional funding. That is a licit action.

Informal cooperation is legally permissible and even advisable as it may help achieve similar outcomes without the use of state power.

Do public health orders violate First Amendment protections of free speech, religion, and assembly or human rights?

Short answer: No. 

These bans are content-neutral and upheld by courts when supported by “compelling government interests.” Congress intentionally designated powers to governors that infringe on our personal rights because it is not a Constitutional principle that these rights are absolute.

It is also not a violation of internationally accepted human rights:

“No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others.”

— International Covenant on Civil and Political Rights

You may own a gun, but you may not shoot other people. Individual rights always end when they affect the safety of others. This famously played out when a man refused a vaccination in Jacobson v Massachusetts, a 1905 US Supreme Court decision where the state’s power to order a general vaccination program during an epidemic was firmly upheld [2].

“The liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly free from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis, organized society could not exist with safety to its members.”

— Jacobson v. Massachusetts, 197 U.S. 11 (1905)

No legal or historical basis exists for people to object to licit emergency powers, and the courts have and will side with the state if the measure used is the least invasive measure capable of achieving a narrow goal and if science shows that this is the best way to mitigate that threat. This virus poses a significant threat that is very real, and while it is not a bioweapon in the sense that anyone engineered it, someone could use it in a way that threatens others.

Personal liberties are “and always have been, subject to society’s interests.”

— Judge C. M. Murray [April 30, 2020]

Those who intentionally infect others may face charges, including federal biological weapons charges. Similarly, people who spread HIV deliberately will likely face charges. Spreading COVID-19 intentionally, like any infectious disease that is being spread intentionally, has national security implications. Consequently, doing so could elicit extreme disciplinary action.

While it may be possible for someone to object to the Constitution — many people object to the Second Amendment—all are beholden to it in this unprecedented and uncertain time.

Citations

1. McCourt, A. 2020. “Legal and Policy Issues in COVID19 Response.” courseplus.jhu.edu (May 2, 2020).
2. Colgrove, J., & Bayer, R. (2005). Manifold restraints: liberty, public health, and the legacy of Jacobson v Massachusetts. American Journal of Public Health, 95(4), 571–576. https://doi.org/10.2105/AJPH.2004.055145
3. Gostin LO, Hodge JG, Wiley LF. Presidential Powers and Response to COVID-19. JAMA. 2020;323(16):1547–1548. doi:10.1001/jama.2020.4335
4. Mariner, W. K., Annas, G. J., & Glantz, L. H. (2005). Jacobson v Massachusetts: it’s not your great-great-grandfather’s public health law.  American Journal of Public Health, 95(4), 581–590. https://doi.org/10.2105/AJPH.2004.055160
5. Richards, Edward P., and Rathbun, Katharine C., “The Role of the Police Power in 21st Century Public Health” (1999). Journal Articles. 371. https://digitalcommons.law.lsu.edu/faculty_scholarship/371

Further Recommended Reading:

• The Network for Public Health Law (https://www.networkforphl.org/)
• Law Atlas COVID-19 Resources (http://lawatlas.org/page/covid19-legal-research-resources)
• Center for Public Health Law Research, Temple University (http://phlr.org/covid19response)
• Change Lab Solutions Coronavirus Law & Policy Resources (https://www.changelabsolutions.org/blog/covid-19-resources)
• Public Health Law Watch COVID Law Briefings (https://www.publichealthlawwatch.org/covid19- briefings)