Ilann Margalit Maazel Ilann Margalit Maazel

Unless you live under a very large rock, you will have noticed that a pandemic known as COVID-19 virus (the coronavirus) is sweeping across the globe. As of this writing, over 180,000 people have been infected and over 7,000 died in over 150 countries. These numbers are no doubt a small fraction of the actual number of infections and deaths, and they are growing dramatically.

Much is not known about COVID-19: the actual number of people affected, the mortality rate in this country, when and where to get tested, and even the precise symptoms of the disease.

In response to the pandemic, we have seen social distancing, regional lockdowns, quarantines of hundreds of millions of people, school closures, the cancellation of sporting and cultural events, and in Italy, a soft lockdown of the entire country (people may leave their homes, go for a walk or to the grocery store, as long as they maintain social distance from others).

As human beings, we watch these rapidly unfolding events with a mix of bewilderment, fear, shock, and hopefully, resolve.

As lawyers, we watch these events from a second angle: What may the government do to combat the disease? What are the limits on government power? Can the government, for example, quarantine an entire city, state, or region?

Some may claim such questions have no place during a national health emergency: As Justice Jackson famously wrote, albeit in dissent, the Constitution is not “a suicide pact.” Terminiello v. City of Chicago, 337 U.S. 1, 69 S.Ct. 894, 911 (1949). Imagine, for example, the plague sweeping the country, in the pre-antibiotic era, with a 66% mortality rate. Shouldn’t the government have plenary power to save its citizens from likely death?

And yet, history is riddled with examples of leaders who turn emergencies—small and large, real and contrived—into abuses of power. This includes the quarantine of thousands of prostitutes during World War I and World War II to protect the U.S. military from venereal disease, and in another context, the quarantine or “internment” of some 117,000 people of Japanese ancestry during World War II. The entire framework of our Constitution is based on a healthy distrust of power: hence the separation of powers and checks and balances which every student (in theory) learns in school.

With this backdrop, what is the law?

Federal Power

42 U.S.C. §264(a) authorizes the Surgeon General, with approval of the Secretary of Health and Human Services, “to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession.” As provided by an amendment to Executive Order 13295, signed by President Obama, “communicable diseases” include “[s]evere acute respiratory syndromes, which are diseases that are associated with fever and signs and symptoms of pneumonia or other respiratory illness, are capable of being transmitted from person to person, and that either are causing, or have the potential to cause, a pandemic, or, upon infection, are highly likely to cause mortality or serious morbidity if not properly controlled.” Exec. Order No.13295 (July 31, 2014). In short it includes coronavirus.

This very broad power, however, only applies to “individuals coming into a State or possession from a foreign country or a possession,” say, on a plane or a cruise ship. 42 U.S.C. §264(c).

Within the United States, the Secretary may only “provide for the apprehension and examination of any individual reasonably believed to be infected with a communicable disease in a qualifying stage and (A) to be moving or about to move from a State to another State; or (B) to be a probable source of infection to individuals who, while infected with such disease in a qualifying stage be moving from a State to another State. Such regulations may provide that if upon examination any such individual is found to be infected, he may be detained for such time and in such manner as may be reasonably necessary.” 42 U.S.C. §264(d)(1). A “qualifying stage” means a “disease is in a communicable stage; or is in a precommunicable stage, if the disease would be likely to cause a public health emergency if transmitted to other individuals.” 42 U.S.C. §264(d)(2).

In short, the federal government may only quarantine persons “reasonably believed to be infected with a communicable disease,” assuming certain other conditions are also met. Under that standard, the federal government almost certainly cannot isolate or quarantine an entire neighborhood, city, state, or region. As to people who are legally quarantined, federal law provides them the right to a medical review of the quarantine decision. 42 C.F.R. §70.16. “Nothing” in this federal law “shall affect the constitutional or statutory rights of individuals to obtain judicial review of their Federal detention.” 42 C.F.R. §70.14(d).

New York State Power

States have broad police powers to enact “reasonable regulations” to “protect the public health.” Jacobson v. Massachusetts, 197 U.S. 11, 25 (1905). In Jacobson, the Supreme Court held, in the context of compulsory vaccination laws, that “a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.” Id. at 27.

The law in New York state, which largely excludes New York City, is indeed broad. “Every local board of health and every health officer shall guard against the introduction of … communicable diseases … by the exercise of proper and vigilant medical inspection and control of all persons and things infected with or exposed to such diseases.” The state may “provide for care and isolation of cases of communicable disease in a hospital or elsewhere when necessary for protection of the public health and … prohibit and prevent all intercourse and communication with or use of infected premises, places and things.” N.Y. Pub. Health Law §2100.

A magistrate, “after due notice and a hearing,” and upon the well-founded complaint of a health officer that a person “is afflicted with a communicable disease,” may isolate that person in a hospital. N.Y. Pub. Health Law §2120.

New York City Power

In New York City, if the Commissioner of Health and Mental Hygiene has “clear and convincing evidence that the health of others is or may be endangered by a case, contact or carrier, or suspected case, contact or carrier of a contagious disease that … may pose an imminent and significant threat to the public health resulting in severe morbidity or high mortality,” the Commissioner may “order the removal and/or detention of such a person or of a group of such persons.” The order must generally end when the person is no longer “contagious” or infected, will no longer “become contagious,” and “no longer presents a potential danger to the health of others.”

The Commissioner may also “issue and seek enforcement of any other orders that he or she determines are necessary or appropriate to prevent dissemination or transmission of contagious diseases or other illnesses that may pose a threat to the public health” including “requiring any person … to remain isolated or quarantined at home or at a premises of such person’s choice that is acceptable to the Department and under such conditions and for such period as will prevent transmission of the contagious disease or other illness.” New York City Health Code [24 RCNY] §11.23 (emphasis added).

The Constitution Exists, Even During a Pandemic

Though much of this language is sweeping, all of these laws are constrained by the federal and state constitutions. Any involuntary confinement is a deprivation of the fundamental right to liberty protected by the Due Process clause. As a general proposition, the government must then demonstrate an “important government interest” in that confinement, i.e., that the individual poses a danger to society and the government cannot achieve the same ends with a less restrictive alternative. Joyner v. Dumpson, 712 F.2d 770, 777 (2d Cir. 1983). At the end, however, “[a] [s]tate may confine individuals solely to protect society from the dangers of … communicable disease.” O’Connor v. Donaldson, 422 U.S. 563, 583 (1975).

Procedural due process in the civil commitment context also requires a right to notice, representation by counsel, a hearing, and prompt judicial review. Vitek v. Jones, 445 U.S. 480, 494-96 (1980). Where individuals might have a communicable disease, presumably they can appear in court remotely.

In addition, the “right to travel” both within and between states is a “fundamental personal right” under the Constitution. King v. New Rochelle Mun. Hous. Auth., 442 F.2d 646, 648 (2d Cir. 1971). Plainly a massive quarantine would implicate this fundamental right.

Conclusion

This is a discussion of the law. The moral, the patriotic, the human analysis may be quite different. If a mayor, governor, or president asks every person to stay home to defeat the virus for the collective benefit of all of us, including the elderly, the sick, and the most vulnerable, it may be our moral obligation to do so.

But there may be many good reasons to disobey such a request without having, say, to show paperwork to a member of the national guard or a police officer: a relative is sick, a spouse is pregnant, a child is in need, food and medicine are in short supply, or a family just needs fresh air.

In a nation of laws, asking is different from commanding at the point of a gun. Assuming rational, decisive, science-based leadership by people in positions of power, it should be possible to defeat this pandemic without shredding the Constitution. Not only is it possible, it is our duty.

Stay safe.

Ilann M. Maazel is a partner at Emery Celli Brinckerhoff & Abady.