Could Trump end lockdowns? Three legal issues.

The Explainer

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.

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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.