On Saturday, March 28, 2020, President Donald Trump floated the possibility of issuing a “quarantine” order for the states of New York, New Jersey, and Connecticut because of their numerous COVID-19 cases. Later that day, Trump backtracked and declared that a quarantine order would “not be necessary.” While quarantines can differ in type and scope, they generally involve restricting the movement of those exposed or potentially exposed to an infectious disease during its period of communicability.
As for Trump’s quarantine order, it is unclear what it would have required: whether it would have affected all three states in their entirety or just partially, mandated that all people in those states stay at home, prohibited all travel into and out of those states, or some combination of these. What is certain, however, is that under current federal law, the president does not have authority to issue a quarantine order that is effectively statewide, including prohibiting all or nearly all travel within a state or into and out of the state. It is also unlikely that Congress could give the president new authority to do so under its Commerce Clause power, which is the basis for the current federal law on quarantine.
As COVID-19 continues to radically change daily life in the United States, it is vital to understand the limits on federal authority over mandatory, statewide quarantines—not only to avoid pitched legal battles between the government, quarantined individuals, and the states, but also to deal with current and future pandemics. Involuntary quarantines are often ineffective at resolving such health crises. Expanding federal power in this area is, as such, unlikely to be an effective health measure, both currently and going forward.
- Current Federal Quarantine Law
- Enforcement Challenges
- New Legislation under the Commerce Clause
- About the Author
Under the U.S. federal system, individual states have primary authority under their police powers to deal with health crises in their territories. As part of this authority, many states have laws governing the issuance of intrastate quarantine orders. The federal government, in contrast, has the limited authority to quarantine individuals coming into the country, traveling between the states, or who may be a probable source of infection to those traveling interstate. Those powers are laid out in the Public Health Service Act (PHSA), which was passed under the Commerce Clause in the mid-1940s. Neither that law nor its accompanying regulations give the president the authority to order intrastate or interstate quarantine of individuals en masse.
The CDC is tasked with implementing the government’s quarantine authority under the PHSA. Section 264(d) authorizes the CDC to apprehend and examine an individual or groups of individuals as long as it “reasonably believes” those persons are infected with a communicable disease. These individuals must also “be moving or about to move from a State to another State” or “be a probable source of infection to individuals who, while infected with such disease in a qualifying stage, will be moving from a State to another State.” To go beyond apprehension and detain these individuals, the federal government must establish that they are actually infected. While arguably contravening this express statutory language, CDC regulations issued in 2017 broaden the agency’s detention authority. Under these new regulations, the CDC may detain individuals traveling between the states under the lower “reasonable belief” standard.
No matter which standard applies, however, the implications are the same for a statewide federal quarantine order. Assuming the “reasonable belief” standard is used, the CDC would have a hard time establishing such a belief as to all individuals located in a state with substantial COVID-19 cases. It would be even harder to meet that standard for those traveling into one of those states. Similarly, it is highly improbable that the actual infection standard could be met either for all individuals in a state or for all those desiring to travel into a state with high COVID-19 cases. While the CDC could conceivably argue that all individuals in such a state are a probable source of infection to those traveling out of state, its inability to meet either standard would create significant obstacles for any en masse quarantine order.
Even assuming the federal government could legally issue a statewide quarantine order, the PHSA’s procedural protections would make it difficult and likely infeasible to do so. Although these procedural protections apply only to those under detention or conditional release, they arguably are available to anyone prevented from exercising their freedom of movement as a result of a statewide federal quarantine. Under the PHSA, the federal government must issue and serve a written order explaining the basis for its quarantine within 72 hours of apprehension. The Director of the CDC is required to reassess the quarantine’s continued necessity no later than 72 hours after service of that written order. As part of this reassessment, the Director must review all records considered in issuing the original order, and evaluate whether less restrictive measures would adequately satisfy public health concerns. After this mandatory review, quarantined individuals can request a “medical review,” where they may challenge their quarantine. If the CDC’s order remains in place at the conclusion of that process, quarantined individuals can file an appeal in federal court. Given the population of New York City alone, upwards of 8 million, the number of individuals who could challenge a federal statewide quarantine would be unprecedented and likely unmanageable.
One might argue that none of this matters because the president enjoys freestanding constitutional authority under his Article II powers as Commander-in-Chief to order a statewide quarantine. Even if that were the case, Supreme Court precedent strongly suggests that any exercise of those powers would be invalid if in conflict with the PHSA. According to Justice Robert Jackson’s oft-cited concurrence in Youngstown Sheet & Tube Co. v. Sawyer, the president’s powers are at their “lowest ebb” where they are incompatible with express or implied congressional authority. While Jackson also noted that courts should “indulge the widest latitude of interpretation to sustain [the Commander-in-Chief’s] exclusive function to command the instruments of national force,” that deference is limited to situations where presidential action is “turned against the outside world for the security of our society.” Reinforcing this view, the D.C. Circuit Court of Appeals recently noted that “with a few constitutionally based exceptions, the Executive is generally barred from taking action [domestically] that is not within the scope of an affirmative congressional authorization.” Given the PHSA’s express language on quarantine, any executive order establishing a federal statewide quarantine would be on shaky legal ground if it conflicted with that law.
Enforcement issues may further imperil a federal statewide quarantine order. Whether attempting to act through state or local law enforcement, the military, or the National Guard, the federal government would face serious hurdles in enforcing such an order.
Generally, the government is prohibited from commandeering the states to administer federal law. As a result, it has historically relied on state and local authorities to voluntarily enforce federal interstate quarantine orders. But as New York Governor Andrew Cuomo’s strident reaction to Trump’s initial quarantine plans suggest, a federal statewide quarantine may be rejected by the states themselves. Relying on state enforcement of such an order is, therefore, probably a losing gambit.
Activating the U.S. military to enforce a federal statewide quarantine order is also likely prohibited under the Posse Comitatus Act (PCA). The PCA generally bars the military from conducting law enforcement operations inside the United States. Though it could be argued that public health work is different from law enforcement, the strong presumption against domestic military deployment would be hard to overcome.
And while there are several exceptions to the PCA ban, none of them clearly applies here. The first exception allows for military deployment when requested by the states themselves under the Insurrection or Stafford Acts. This exception would, of course, not apply should the states oppose the order.
The second exception to the PCA is triggered by provisions of the Insurrection Act, which allow the president to take action inside a state without that state’s request. Under one provision, the president can use the military to enforce “federal authority” where she determines that the “unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings.” While this provision places broad discretion with the president, it is not clearly triggered by federal action that is, itself, illegal and unconstitutional; it seems even less appropriate when the courts are available to decide the matter.
Another potentially relevant provision of the Insurrection Act allows the president to deploy the military inside a state when she believes it necessary to suppress “an insurrection, domestic violence, unlawful combination, or conspiracy.” To justify this deployment, the insurrection must either (1) “so hinder[ ] the execution of the laws of that State, and of the United States within the State, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection” or (2) “oppose[ ] or obstruct[ ] the execution of the laws of the United States or impede[ ] the course of justice under those laws.” While this provision was amended in 2006 to include cases of “natural disaster, epidemic, or other serious public health emergency,” the amendment was repealed in 2008. That repeal strongly suggests this provision, as currently written, does not apply to pandemics or quarantines issued to stop them.
The other enforcement option potentially available to the federal government is the National Guard. National Guard members belong both to the state and federal National Guards. Typically, when it comes to domestic activity, state governors activate National Guard troops to respond to state emergencies. While the federal government can also activate units of the National Guard, this activation transforms those units into a part of the U.S. military. As a result, using federalized National Guard units to enforce a statewide quarantine order would raise the same PCA concerns about deploying U.S. troops inside the United States.
Finally, there are real questions as to whether Congress would have the authority, under the Commerce Clause, to pass new legislation empowering the federal government to issue statewide quarantines. The analysis here is complex and would turn on the precise contours of any such legislation. While new legislation might resolve the Youngstown concern and allow Trump to act with congressional endorsement, any law passed under the Commerce Clause faces several general challenges. Those challenges would be greatest for a quarantine law reaching inside the states, but are also significant for a law prohibiting en masse travel into and out of a state.
At the heart of those challenges are a line of Supreme Court decisions that limit Congress’s Commerce Clause authority. Since the 1995 case of United States v. Lopez, the Court has resisted federal regulation of noneconomic, intrastate activities traditionally governed by state laws. Where Congress seeks to regulate such activities, which include things like gender-based violence and gun possession, the legislation is unlikely to be upheld, even where those activities have a substantial, cumulative effect on interstate commerce. This is because the relationship between such activities and interstate commerce is typically either indirect and remote or otherwise attenuated. By contrast, when Congress seeks to regulate economic activities within a state, such as coal mining or credit transactions, the legislation is more likely to pass muster as long as those activities have a substantial effect on interstate commerce. As a result of these rulings, some health law scholars have concluded that “state police powers exercised in the interest of public health [have been] strengthened emphatically . . . confining federal authority to enter the field.”
This jurisprudence raises serious questions about whether intrastate quarantine legislation would be authorized under the Commerce Clause. On the one hand, health quarantines do not qualify as “economic activity” as they are not generally considered to be economic or commercial enterprises. They also typically fall under the authority of the states themselves, which the federal government has recognized. On the other hand, COVID-19 has underscored the massive interstate, economic consequences of failing to contain a pandemic. In fact, one might argue that, unlike other regulations of noneconomic, intrastate activity, here the effects are not “indirect and remote.”
There are, however, counterarguments to that position. As COVID-19 has demonstrated, the interstate commercial effects of a pandemic are often cumulative and may not occur but for various, intervening factors. This includes the contagiousness of the disease, the ability of the health system to respond to the pandemic, including the availability of health insurance, hospital beds, testing, and medical equipment, as well as responses to the outbreak from various government actors, especially in the early stages. In other words, the connection between contagious disease and interstate commerce requires various inferences, including but not limited to the particularities of the disease itself, the political climate, and health system preparedness. The more inferences required, the weaker the case for Commerce Clause authority over noneconomic, intrastate activities, like a health quarantine.
If federal quarantine authority were limited to prohibiting all travel into or out of a state, Commerce Clause authority would be stronger. Here, the activity in question clearly takes place within channels of interstate commerce, whether through the roads, airways, or railroads. It can, therefore, be validly regulated under the Commerce Clause.
There are, nevertheless, civil liberties limitation on this kind of federal regulation. Of particular relevance is the right to travel. At least where that travel occurs between states, the right is considered a fundamental one. As a result, courts have applied strict scrutiny review to state laws restricting interstate movement. That standard also ought to apply to federal restrictions. Under strict scrutiny review, a law will only be upheld if there is a compelling state interest. While preventing a nation-wide pandemic would clearly qualify, the law must be narrowly tailored to achieve its compelling purpose. A statewide ban, preventing all individuals from leaving or entering a state without first establishing each person’s exposure to a contagious illness or actual infection, may run up against that standard.
Federal attempts to issue statewide quarantine orders raise many important questions. Recent events suggest that the states themselves, as well as impacted individuals, would likely challenge any such claim of authority. These legal battles are unlikely to serve the public interest during a health crisis. Legal and practical considerations aside, involuntary quarantines are largely considered ineffective at containing public health threats. By contrast, voluntary cooperation and commitment from the general population are far more effective. If the federal government is concerned with enforcing quarantines inside or between states, the best route is to use transparency and persuasion to convince the public to stay indoors, in cooperation with state and local authorities.
Maryam Jamshidi is an Assistant Professor of Law at the University of Florida, Levin College of Law. For helpful comments and conversations, thanks to Paul McGovern, Scott Skinner-Thompson, and Ehsan Zaffar. Many thanks, as well, to the editors of the University of Chicago Law Review for their thoughtful revisions and suggestions. All errors are my own.
 This last type of quarantine is known as a cordon sanitaire – a quarantine that effectively forces individuals to remain within a geographic area.
 Whether this regulation is defensible under Chevron is beyond the scope of this Article, though at least some scholars have argued it would not satisfy the requirements of that test. Michael R. Ulrich & Wendy Mariner, Quarantine and the Federal Role in Epidemics, 71 SMU L. Rev. 391, 400–02 (2018).
 The 2017 regulations still require that the detained persons either be “moving or about to move from a State into another State” or “constitute a probable source of infection to other individuals who may be moving from a State into another State.” 42 C.F.R. § 70.6(a).
 Under the 2017 regulations, the CDC has also claimed authority to institute measures that are “reasonably necessary” to prevent the spread of contagious disease between states where measures taken by individuals states are inadequate. 42 C.F.R § 70.2. While unclear, this may include taking intrastate measures. Such a move would contravene the express language of the PHSA and likely exceed Congress’s authority under the Commerce Clause, as described below.
**Featured image credit: Chad Davis (Flickr)