The COVID-19 pandemic has raised many questions about how to constitutionally handle a public health crisis on both the state and national levels. Many wonder if a national lockdown can be put in place — a new dilemma that has little legal precedent to follow.
Can individual rights be limited to protect public health?
Short answer: Under Jacobson v. Massachusetts (1905), states may take measures to protect public health, even if it limits some individual rights.
In the early 1900s, a smallpox epidemic hit the northeastern United States. When the epidemic hit Massachusetts, the city of Cambridge enacted a law that required all of its residents to be vaccinated against smallpox with a $5 fine of noncompliance. Henning Jacobson, a citizen of Cambridge, refused the vaccine and contested the fine, which ultimately led to the case reaching the Supreme Court in 1905. The court ruled that individual rights may be limited by the state for the purpose of protecting public health and that Cambridge’s decision to fine Jacobson was just.
This case, Jacobson v. Massachusetts (1905), has set precedent that states may take action to protect the health and safety of its citizens, even if it may abridge certain individual liberties. Moreover, since this case is between a plaintiff and the state of Massachusetts, it specifically focuses on the state power, rather than the federal power, to address public health concerns. Although it is only one of many factors that play into the question of how to best protect public health while also acknowledging individual rights, it can help us better understand the current situation regarding COVID-19 in the United States.
Many states, including California, New York and Illinois, have taken statewide measures to limit the spread of the COVID-19 virus. For instance, on March 20th, New York Governor Andrew Cuomo signed an executive order mandating that 100% of the workforce must stay home, excluding essential services. These measures enacted by states are valid exercises of power since states have the ability to take statewide measures in order to protect public health under Supreme Court precedent — precedent from Jacobson v. Massachusetts.
Is public health a state or national matter?
Short answer: While public health is traditionally under state jurisdiction, the federal government can become involved in several ways.
The issue becomes trickier when we begin to look at the ability of the federal government to impose national mandates during the COVID-19 pandemic, such as a national lockdown. Public health has traditionally been viewed as under state jurisdiction. This state jurisdiction comes from the 10th Amendment of the Constitution, which says that any powers not delegated to the national government in the Constitution are reserved to the states. Since public health is not explicitly mentioned anywhere in the Constitution, it is widely interpreted that public health is considered under state jurisdiction.
State governments may have more jurisdiction over public health than the federal government, but there are various ways for the federal government to get involved in protecting public health. For instance, the federal government may choose to evoke the Commerce Clause of the Constitution, which expresses that the federal government has the authority to regulate interstate commerce. Thus, if a health crisis such as COVID-19 spreads beyond any individual states, the federal government may claim that they have the authority to prevent the spread of disease among states. This could allow for the federal government to take actions ranging from more interstate border screenings or potentially even a nationally mandated lockdown.
Another way that the federal government can influence health is through providing recommendations to the states. One of the main recommendations that the President has made during this pandemic has been the “stay-at-home” guideline. On March 29th, President Trump extended the federal “stay-at-home” guidelines to April 30, stating that it is recommended that people stay at home until this date. While this is only a “recommendation,” many states have made decisions congruent with national guidelines.
How does declaring a “national emergency” change things?
Short answer: Declaring a “national emergency” can give the president and executive branch more authority over a situation such as the COVID-19 epidemic.
Laws and policies can — and often do — change during times of crisis. Once a president declares a “national emergency,” for instance, 100 special provisions become available for the executive branch to use. Some of the most relevant provisions for a public health crisis include waiving confidentiality and certifications necessary to supply public health services and authorizing the use of unapproved drugs or devices.
Moreover, courts and legislatures often defer more to the executive branch’s decisions made during a national emergency. In this case, judicial deference may mean that the Supreme Court will defer more to executive decisions made on COVID-19 now that the issue has been declared a “national emergency.” This is all under the historical assumption that the president will act in the best interest of the country in times of crisis when there often is not enough time to go through the normal measures of getting actions approved by Congress.
COVID-19 was declared a national emergency as of March 1, 2020, which means we may see more deference towards the President’s decisions in the upcoming months. This is one of the few times that a national emergency has been declared due to a public health concern, as they are often for military or economic reasons. Because of this, we may see new uses of national emergency powers within the next few months.
One of the most discussed actions the President has taken after declaring COVID-19 a national emergency was evoking the Stafford Act on March 13, 2020. However, the Stafford Act was mainly intended for use during natural disasters, so its use for a public health issue has raised several new questions.
One such question has been whether the Stafford Act could be used to mandate a national quarantine, but it does not seem like the act itself could evoke a national lockdown. The main intent of the Stafford Act is to enable the federal government to provide assistance to states and local governments through the Federal Emergency Management Agency (FEMA). This means that while the federal government can provide resources to states, it still cannot directly intervene in the crisis response of the states.
Can President Trump mandate a national lockdown?
Unfortunately, it is a hard question to answer. The COVID-19 crisis we face today is relatively uncharted territory in the legal realm. Not much legal precedent exists on how to respond to a public health crisis like this pandemic on a national scale.
There are many legal factors at play as well. Factors such as Jacobson v. Massachusetts (1905) and the Tenth Amendment may point to an argument that public health issues, including mandatory lockdowns, are primarily state concerns and that the national government should only be able to issue recommendations to the states during public health crises. However, if the President did choose to order a nationally mandated lockdown, other factors such as the federal power to regulate interstate commerce and presidential “national emergency” powers may help him in doing so.
With such little legal precedent, the decisions made in the next few months will be critical to better understand how both the state and federal governments should respond to public health crises.