This blog is a little longer than the last, but trust me. You might learn about something before you hear about it on the news; and worse-case scenario you have a random Jeopardy answer in your back pocket. We’re all stuck at home, I know you have all the time in the world.
If you are still watching the news, you may have noticed a new trend across the country, protesting of social distancing laws. Our 1st Amendment right to freedom of assembly is a cherished one and, for better or worse, some of our fellow citizens are taking full advantage of their constitutional right. A common theme for these protests has been the idea that the state imposed quarantine laws violate the constitution. While many of the protesters might just be saying this with no legal argument backing them, it’s definitely an interesting question to ponder; can our state governments impose mandatory quarantine measures?
While we have already discussed Jacobson v. Massachusetts in a previous blog, that case is not the only Supreme Court decision to regard government enforcement of health laws. In fact, there are more 19th and 20th Century cases that question the legitimacy of quarantines themselves. Some of you may remember one of these cases from your US History classes (thanks Mr. Adams!) but the others have been somewhat forgotten by history.
Before we start, how about a short history lesson to jog your memory. Article I, Section 8, Clause 3 of the Constitution states that Congress shall have the power “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” This Clause is known as the “Commerce Clause” and is the bane of every law student stuck in a Constitutional Law class. The quick and easy guide to the Commerce Clause is this: Congress has the power to regulate anything that you can relate to commerce in our country (including individual privately owned restaurants). Individual states cannot implement laws that would somehow interfere with interstate commerce. The idea here is to prevent states from creating laws that will harm other states through commerce; for example, Florida passing a law that made it illegal for its oranges to be sold to Georgians would be struck down because that interferes with interstate commerce. Most of the arguments made in these cases rely on the idea that state quarantine laws violate the all-encompassing Commerce Clause.
The first case, Gibbons v. Ogden, is a landmark Supreme Court decision and the mother-of-all Commerce Clause cases. In this case, the Supreme Court ruled that through the Commerce Clause, Congress has the power to regulate navigation. Now this case did not deal with quarantine laws, it instead was an argument over access to New York waterways, but that did not stop the majority opinion from also discussing state quarantine laws when giving Congress power over navigation. The Supreme Court acknowledged that a state’s implementation of quarantine laws could theoretically impact commerce between states; however, the Court also recognized the importance of quarantine laws when it came to public health. In its ruling the Supreme Court stated “all other laws regulating internal trade, or the right of transit from one part to another of the same State; such as quarantine laws…are acknowledged to be valid. They are passed, not with a view or design to regulate commerce, but to promote some great object of public interest, with the acknowledged scope of State legislation: such as public health.” Basically, the Supreme Court ruled that the Commerce Clause does not outlaw individual state quarantine laws because those laws are created for public health reasons, not interstate commerce reasons.
In 1902 the legitimacy of state quarantine measures were directly questioned in Compagnie Francaise de Navigation a Vapeur v. Louisiana Board of Health. If you didn’t guess from the title, this case concerned the enforced quarantine of a French cargo ship by the Port of New Orleans. Due to the geography of New Orleans (it was the biggest Gulf of Mexico port at the time), the city had had a long history of tropical disease pandemics that killed thousands throughout the 18th and 19th centuries. To combat these disease outbreaks, New Orleans placed the city under quarantine and authorized the Board of Health to deny access to any ship it believed would endanger the city’s health. Using this power, the Board of Health refused entry to a French ship, stating that the ship would need to disembark its many foreign passengers in a different location before the ship and its cargo would be accepted into the port. When all was said and done, the French Company sued the city for damages, arguing, among other topics, that the quarantine laws violated the ship passengers’ equal protection and due process rights under the Fourteenth Amendment. The Supreme Court did not agree with this theory. In its opinion, the majority discussed various older precedents involving state quarantines, as well as Gibbons v. Ogden. In doing so, the Supreme Court held that case precedent from those cases “expressly and unequivocally hold that the health and quarantine laws of the several States are not repugnant to the Constitution of the United States.” Laws like quarantine laws are acceptable uses of police power, a power granted exclusively to the states, because these laws deal with public health. Due to the nature of the Fourteenth Amendment, if what the state is doing is constitutional, a person’s Fourteenth Amendment rights could not have been violated.
To reach the last case, we have to jump ahead to the Cold War and 1965 in Zemel v. Rusk. This case was not about quarantine laws, but instead questioned whether the Secretary of State could ban Americans from travelling to Cuba by placing restrictions on American passports. The ruling in that case is not important to us right now (spoiler alert, the Secretary of State won), but what may become exceeding relevant in the near future is one clause from Zemel’s unanimous decision: “the right to travel within the United States is of course also constitutionally protected. But that freedom does not mean that areas ravaged by flood, fire, or pestilence cannot be quarantined when it can be demonstrated that unlimited travel to the area would directly and materially interfere with the safety and welfare of the area or the Nation as a whole.”
Now I am not a Supreme Court Justice by any means, but I think it’s pretty safe to say that COVID-19 checks off the pestilence box. Expansive data from across the country and world has also shown that the stay-at-home orders have helped slow the spread of the virus. With those two factors in mind alongside the history of quarantine related precedent, one can probably predict how a court would rule in a COVID-19 quarantine suit, but crazier things have happened. After all, we’ve been sitting inside our homes for over a month now. Who could have predicted that?
Gibbons v. Ogden, 22 U.S. 1 (1824).
Compagnie Francaise De Navigation A Vapeur v. Louisiana State Bd. of Health, 186 U.S. 380 (1902).
Zemel v. Rusk, 381 U.S. 1 (1965).