Could Trump end lockdowns? Three legal issues.

Mary Altaffer/AP
Pedestrians make their way across 42nd Street with very light traffic, March 25, 2020, in New York City. The state, hit hard by the coronavirus crisis, appears likely to keep restrictions in place for some time.

Two ways to read the story

  • Quick Read
  • Deep Read ( 4 Min. )

On March 16 President Donald Trump issued coronavirus guidelines for the nation titled, “15 Days to Slow the Spread.” Among other things, the guidelines advised working from home if possible and avoiding social gatherings of more than 10 people.

As the 15-day mark approaches, Mr. Trump has become vocal about the possibility of lifting restrictions so as to get the economy moving again. But the president himself has no direct power to turn most of these musings into action. His 15-day recommendations were advisory; it is state governors and city mayors who have used their police powers to issue edicts.

Why We Wrote This

Government actions to protect public health amid the coronavirus crisis have taken place under a variety of laws and regulations. What are the legal underpinnings for travel bans, quarantines, and lockdowns?

Of course, there are other coronavirus issues where Washington does have direct power. On Jan. 31 Mr. Trump barred entry into the United States of any foreign national who had been in mainland China in the prior two weeks. The White House has since issued similar edicts involving Iran, continental Europe, Ireland, and the United Kingdom.

Also, Washington has the power to quarantine people to block the spread of communicable disease from other nations or between the states. But for most Americans, the shelter-in-place orders issued by state or local authorities will be far more important than such action taken by the federal government.

Could President Donald Trump, in the name of restarting the economy, repeal the lockdown or semi-lockdown conditions that now exist in much of the United States, with nonessential stores shuttered, large groups prohibited, and many places of business closed?

The answer to that question is almost certainly “no.” From Connecticut to California, it is state and local officials who have ordered most of the nation’s current restrictions on daily life. Mr. Trump could direct federal workers to return to their offices, and order some businesses to produce certain items under the Defense Production Act. But in terms of direct action, that’s about it.

“While the federal government has authority to authorize quarantine and isolation under certain circumstances, the primary authority for quarantine and isolation exists at the state level as an exercise of the state’s police power,” concludes a 2014 Congressional Research Service (CRS) summary of U.S. public health powers.

Why We Wrote This

Government actions to protect public health amid the coronavirus crisis have taken place under a variety of laws and regulations. What are the legal underpinnings for travel bans, quarantines, and lockdowns?

Editor’s note: As a public service, all our coronavirus coverage is free. No paywall.

Government actions to deal with the spread of COVID-19 have taken place under the aegis of a variety of laws and regulations. Here’s an explainer on some of the legal underpinnings of steps taken so far:

Travel bans

Mr. Trump’s first big move meant to counter the coronavirus crisis was a travel ban. On Jan. 31 he issued a presidential proclamation barring entry into the U.S. of any foreign national who had been in mainland China at any point in the prior 14 days. (U.S. citizens and lawful permanent residents and their relatives weren’t covered by this ruling.)

His authority to issue this order derives from the Immigration and Nationality Act, which in its current form dates to 1965. Section 212(f) of the law authorizes blocking “alien” entry on grounds of public health, among other things.

In subsequent weeks the White House issued similar edicts banning foreign nationals who have recently been in Iran, the Schengen Area of the European Union, Ireland, and the United Kingdom.

This is the first time this particular slice of U.S. law has been used to try to halt the spread of a communicable disease, according to a CRS legal sidebar dealing with COVID-19. But it also underpinned the Trump administration’s early travel ban barring entrants from a number of majority-Muslim countries. After several modifications to account for First Amendment concerns, that ban was upheld by the Supreme Court. The high court majority held that Section 212(f) “exudes deference to the President in every clause.”

Quarantines

For most Americans, the coronavirus crisis’s shelter-in-place orders issued by state or local authorities will be far more important than such action taken by the federal government.

Washington has the power to quarantine people or take other measures to block the spread of communicable disease from other nations or between the states. Authority to enforce such actions comes from Section 361 of the Public Health Service Act of 1944, according to CRS.

Those quarantined have some rights, however, given that involuntary detention is a deprivation of liberty. Under Centers for Disease Control and Prevention guidelines, the federal government must test detainees within 72 hours and define the length of their quarantine from the outset.

A well-known 2014 test case of the government’s quarantine powers involved Kaci Hickox, a nurse who was involuntarily detained at Newark Airport after arriving from an area of West Africa where she had worked with Ebola patients. Legal action by Ms. Hickox eventually established that arriving passengers have the right to appeal quarantine decisions and seek legal advice.

States may isolate or quarantine people deemed public health risks under policing powers derived from the 10th Amendment. But their mandatory quarantine laws vary widely, with some vesting powers in health authorities and others requiring court orders for such a move. The national security legal blog Lawfare has compiled a useful summary of quarantine and isolation authorities in each state.

The use of state and local authority to enforce widespread self-quarantines in the face of a health threat is a new legal frontier. To this point enforcement has seemed relatively light-handed, with police breaking up large groups of people and asking them to return home. Mass arrests would be counterproductive to a need for social distancing.

But in some cases, police are using tougher measures. In Kentucky, a man who had tested positive for the novel coronavirus checked himself out of a Louisville hospital against doctors’ advice and told police he would not follow orders to self-quarantine at home. The Nelson County Sheriff’s Office posted armed guards outside his door.

Economic lockdowns

On March 16 Mr. Trump issued coronavirus guidelines for the nation titled, “15 Days to Slow the Spread.” Among other things, the guidelines advised working or engaging in schooling from home if possible, avoiding social gatherings of more than 10 people, avoiding restaurants, and limiting travel as much as possible.

As the 15-day mark approaches the president has become increasingly vocal about the possibility of lifting these restrictions so as to get the country back to work and the economy moving again. A deep recession could be worse than the spread of the coronavirus, he said on Tuesday in a Fox News “virtual town hall.”

It would be better to “have the country opened up” by Easter, Mr. Trump said.

Many public health officials have argued strenuously against such loosening, saying the coronavirus is far from under control. But the president himself has no direct power to turn most of these musings into action. His 15-day recommendations were advisory; it is state governors and city mayors who have used their police powers to issue edicts giving them teeth.

Every state, territory, and the District of Columbia has declared a public health emergency, according to lists compiled by the National Governors Association. Twenty-one states and the Virgin Islands have issued stay-at-home orders, according to the NGA (not all these orders cover state territories in their entirety). Most have set limits of various levels on the size of permissible public gatherings.

Either statewide or locally directed school closures have occurred in all states. Thirty-six states and Puerto Rico have limited the operations of nonessential businesses.

Mr. Trump, of course, commands a lot of attention. He has the bully pulpits of the White House and his Twitter feed to make his desires known.

But many governors, particularly in hard-hit states such as New York, do not appear at all inclined to loosen regulations yet. A number of the governors at the forefront of closing down schools and businesses are Republican, such as Ohio Gov. Mike DeWine and Maryland Gov. Larry Hogan. They don’t seem inclined to follow the president’s wishes, either.

Governor Hogan, current chair of the NGA, said on Monday, “We don’t think that we’re going to be in any way ready to be out of this in five or six days or so.”

Editor’s note: As a public service, all our coronavirus coverage is free. No paywall.

You've read  of  free articles. Subscribe to continue.

Dear Reader,

About a year ago, I happened upon this statement about the Monitor in the Harvard Business Review – under the charming heading of “do things that don’t interest you”:

“Many things that end up” being meaningful, writes social scientist Joseph Grenny, “have come from conference workshops, articles, or online videos that began as a chore and ended with an insight. My work in Kenya, for example, was heavily influenced by a Christian Science Monitor article I had forced myself to read 10 years earlier. Sometimes, we call things ‘boring’ simply because they lie outside the box we are currently in.”

If you were to come up with a punchline to a joke about the Monitor, that would probably be it. We’re seen as being global, fair, insightful, and perhaps a bit too earnest. We’re the bran muffin of journalism.

But you know what? We change lives. And I’m going to argue that we change lives precisely because we force open that too-small box that most human beings think they live in.

The Monitor is a peculiar little publication that’s hard for the world to figure out. We’re run by a church, but we’re not only for church members and we’re not about converting people. We’re known as being fair even as the world becomes as polarized as at any time since the newspaper’s founding in 1908.

We have a mission beyond circulation, we want to bridge divides. We’re about kicking down the door of thought everywhere and saying, “You are bigger and more capable than you realize. And we can prove it.”

If you’re looking for bran muffin journalism, you can subscribe to the Monitor for $15. You’ll get the Monitor Weekly magazine, the Monitor Daily email, and unlimited access to CSMonitor.com.