Trump or Cuomo could quarantine New York

The president and governor have the authority to order a lockdown. They just might not get reelected if they do.

A pedestrian wearing a face mask while walking along a nearly-vacant Corso Vittorio Emanuele, the most important pedestrian street in downtown Milan.

A pedestrian wearing a face mask while walking along a nearly-vacant Corso Vittorio Emanuele, the most important pedestrian street in downtown Milan. GIULIA COSTETTI/EPA-EFE/Shutterstock

As the new coronavirus continues to proliferate in New York, residents may be curious about what measures local, state and federal governments can take in response. This week, the Italian government announced a quarantine of the country. Theaters, museums and gyms are closed and civil ceremonies – including funerals – are canceled.

Could something like that happen in the Empire State? The answer, at least legally, is almost certainly yes. The government is generally given wide latitude by the courts to act decisively during emergencies. This is not to say that the government is completely unconstrained, but these constraints are political rather than legal. And at the federal level, the concern may be that because of President Donald Trump’s obsession with the short-term state of the economy, the government will do too little rather than too much.

Let’s start at the state and local level. While the U.S. Constitution explicitly and implicitly limits federal power, the states retain their broad “police powers” – that is, the power to regulate the health, safety and morals of the people under their jurisdiction. The implications of the spread of the new coronavirus are a quintessential subject for the exercise of the police power. So long as the state or local actions taken in response to a crisis don’t violate the equal protection or due process clauses of 14th Amendment or the parts of the Bill of Rights that now apply to the states, such as the right to free speech, they are permitted by the Constitution.

History indicates that the courts will be reluctant to second-guess the actions of state and local officials in response to COVID-19. Even during the periods when the courts have been most aggressive in finding limits to the police powers of state and local governments in the broad language of the due process clause, the courts allowed them broad discretion to act in response to health crises. In 1905, the same year the Supreme Court infamously struck down New York’s carefully crafted law imposing a limit on the number of hours bakers could work, the court upheld a compulsory vaccination law in Massachusetts. In upholding the mandatory vaccination law, the court also emphasized that quarantines were well within the police powers of the state. It is extremely unlikely that contemporary courts would question this finding.

As Cornell University Law School professor Michael Dorf observes, the question of the federal government’s powers to deal with a pandemic is somewhat more complicated. The federal government does not have a general police power. It has, though, been able to pass a considerable amount of health and safety legislation through its power to regulate interstate commerce. One of these statutes permits the executive branch to issue quarantine orders to prevent diseases from spreading across state and federal lines. Because the COVID-19 pandemic originated abroad and is already spreading across state lines, it would certainly fall within the ambit of the law, which would authorize the Trump administration to issue quarantine orders.

The constitutionality of this statute has not yet been tested. But while the current Supreme Court is less sympathetic to federal power than any since the New Deal, it is extremely unlikely that the court would rule that federal quarantine orders exceed the federal government’s power to regulate interstate commerce. The court’s four-member liberal block remains committed to the New Deal vision of expansive federal power. And it’s enormously unlikely that the conservative majority would find a Trump administration quarantine order unconstitutional, particularly given the court’s general tendency to defer to the executive branch during times of crisis – even when, as with the ban on travel from some majority-Muslim countries upheld in 2018, the “emergency” is mostly a figment of Trump’s imagination.

Although judicial pushback against quarantine orders from any level of government is unlikely, that’s not to say that there aren’t constraints. Quarantines are highly disruptive and inconvenient, and they cannot easily be tailored to affect only people lacking in political clout. They also would have a deleterious effect on the national economy, which is of considerable interest to politicians seeking reelection.

Which brings us back to Trump. Far from erring on the side of scaremongering or taking excessive action, he has repeatedly downplayed the risk posed by COVID-19. Some of this denial has been outright dangerous, such as his recently ordering the removal of language from the Centers for Disease Control and Prevention guidance suggesting that vulnerable populations and the elderly avoid air travel. One advantage of the federal system is that it will allow more responsible leaders like New York Gov. Andrew Cuomo and Washington Gov. Jay Inslee to take action if they deem it necessary. Broad quarantines are an extreme measure that should only be taken as a last resort – but public officials shouldn’t put their reelection prospects above the health of the public.