Jeffrey Rosen is joined by public health law experts Polly Price of Emory University School of Law and Ed Richards of Louisiana State University Law Center to discuss key questions about the coronavirus and the Constitution. Starting with the history of quarantines prior to and during the Founding era, they explain how the government combatted diseases when, as Ed puts it, “The colonies were basically fever-ridden swamps.” Drawing examples from public health responses to outbreaks of yellow fever and the 1918 influenza pandemic through the AIDS epidemic and SARS, they also answer questions including: What restrictions can government authorities enact under the Constitution during a pandemic—from quarantines to isolation measures, to shutting down private businesses? How do the powers of state and federal governments interact during emergency scenarios? Would it be constitutional for the government to impose the kind of lockdown that has occurred in China or Italy, and, if so, would the Supreme Court intervene? And what might happen next?
FULL PODCAST
PARTICIPANTS
Polly Price is Asa Griggs Candler Professor of Law and Professor of Global Health in the Rollins School of Public Health at Emory University. She is a public health law expert, legal historian and citizenship and immigration law expert who has published widely on those topics. In 2017, Price was named an Andrew Carnegie Fellow. Her fellowship supported her forthcoming book, Plagues in the Nation, which examines the ways epidemics have shaped US law and continue to pose challenges for disease control in democratic societies.
Ed Richards is the Clarence W. Edwards Professor of Law and holds the John P. Laborde Endowed Professorship in Energy Law at LSU Law, where he also directs the Climate Change Law and Policy Project. Richards worked on health and public health policy law for many years, including work on HIV/AIDS, smallpox bioterrorism, and pandemic flu at various organizations including the CDC and Department of Justice. He is the author of many works including The Role of Law Enforcement in Public Health Emergencies: Special Considerations for an All-Hazards Approach published by the Department of Justice’s Bureau of Justice Assistance in 2006.
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
Additional Resources
- Gibbons v. Ogden (1824)
- Ex parte Milligan (1866)
- Morgan's Steamship Co. vs Louisiana Board of Health (1886)
- Compagnie Francaise de Navigation a Vapeur v. Louisiana Board of Health (1902)
- Jacobson v. Massachusetts (1905)
- Korematsu v. United States (1944)
- Youngstown Sheet and Tube Co. v. Sawyer (1952)
- Epidemics, Outsiders and Local Protection: Federalism Theater in the Era of the Shotgun Quarantine
- "The Coronavirus and the Constitution" by Euguene Volokh, quoting Ed Richards
This episode was engineered by Greg Scheckler and produced by Jackie McDermott. Research was provided by Nicholas Mosvick and Lana Ulrich.
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TRANSCRIPT
This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.
Jeffrey Rosen: [00:00:00] I'm Jeffrey Rosen, president and CEO of the National Constitution Center, and welcome to We The People, a weekly show of constitutional debate. The National Constitution Center is a nonpartisan, nonprofit, chartered by Congress to increase awareness and understanding of the Constitution among the American people. On this episode, we explore the Constitution and the Coronavirus. Dear, We The People friends, so many of us are working at home and confronting the reality of our new crisis. Today is the time to learn what limits, if any, does the constitution impose on the power of local, state, and federal officials to meet the crisis from quarantines to other limitations on public assembly.
To delve into these questions, and to understand the history and constitutional law of the response of the government to public health crises I'm joined by two of America's leading experts on public health law and the Constitution. Polly Price is Asa Griggs Candler Professor of Law, and Professor of Global Health in the Rollins School of Public Health at Emory University. She's a public health expert, legal historian, and Citizenship and Immigration Law expert who's published widely on these topics. Her fellowship at the Andrew Carnegie Foundation supported her forthcoming book, Plagues in the Nation, which examines the way epidemics have shaped US law, and continue to pose challenges for disease control in democratic societies. Polly, thank you so much for joining.
Polly Price: [00:01:34] Thank you.
Rosen: [00:01:35] And Ed Richards is the Clarence W. Edwards Professor of Law and holds the John P. Laborde Endowed Professorship in Energy Law at LSU Law, where he also directs the Climate Change Law and Policy Project. Professor Richards worked on health and public policy law for many years including works on HIV/AIDS, smallpox, bioterrorism, and pandemic flu. He's the author of many works including the Role of Law Enforcement in Public Health Emergencies: Special Considerations for An All Hazards Approach. Ed, it is wonderful to have you on the show.
Ed Richards: [00:02:07] Thank you for inviting me.
Rosen: [00:02:09] Polly, let us begin with you. You recently wrote a great piece for the Atlantic National Constitution Center's battle for the constitution website. It's called A Coronavirus Quarantine in America Could Be a Giant Legal Mess. And you tell us about the history and law of federal and state efforts to impose quarantines. Let's begin with the state picture. You write, as a legal matter, the US Supreme Court recognized a seemingly unlimited local power to quarantine as early as 1824 in the case of Gibbons and Ogden. Tell us about that famous constitutional law case, what it held, and what kind of quarantines state and local governments imposed at the time of the founding leading up to Gibbons.
Price: [00:02:57] Gibbons v. Ogden is not really about quarantines. It's t- one of the few instances though early on where the Supreme Court has mentioned the police powers of the state as including quarantine, and quarantine, and, and isolation. Those are some of the oldest tools in the Public Health Law public health book. And it, in terms of the colonies would practice isolation. The early states practiced isolation. Local governments, this was just a- an assed power that they have had. And, and so, for, from our history, going all the way back to even before Gibbons versus Ogden, it's been recognized to be a local authority, a local power., after the revolution and under the new constitution, it's continued to be recognized as primarily responsibility and a state power.
Rosen: [00:04:00] as you say, Gibbons was not mainly about quarantines, but it, it's, it's well known to first year constitutional law students. In Gibbons, the Supreme Court struck down a New York Law that gave exclusive navigation rights to two individuals for the waters of New York and in the course of the opinion the court rejected the state's argent that the federal government, government's previous assistance in enforcing New York quarantine regulations signified a federal approval of those laws. Instead, the court said Congress only directs officers of government to obey state quarantine laws, but doesn't pretend or attempt to legalize them. Ed, what can you tell us about the history of the founding era quarantines? What kind of quarantines did states assert, and what is does the Gibbons case say about any limits that there may be to local and state power?
Richards: [00:04:53] Well, I actually start much earlier than that. Blackstone recognizes the importance of quarantine. It was one of the major felonies. If you broke the quarantine, punishment could be death. Our notion of, of quarantine comes from, I believe the Italian or one of the Italian dialects for 40 days when ships would come in and they thought there might be plague on board, they would keep them out in the harbor for a prolonged period. This has been part of life since people started traveling, and st- and lived in cities. The colonies were heavily engaged in what we'd see as public health. They didn't have police forces, so a police power meant public health in those periods. The colonies were also basically fever ridden swamps. The cities were ports. They had malaria, they had yellow fever, they had typhoid, cholera. the average life expectancy was probably 25 years in the cities. So, these were places where they were very familiar with these powers. Philadelphia lost 10% of its population one summer from a yellow fever outbreak. There were later outbreaks in Philadelphia and the other cities.
So when we're thinking about the powers, I don't think the const- the of Gibbons v. Ogden, and the early constitutional cases are really as good a reflection as this long sweep of history. These were very deeply enculturated into the society. There are not many Supreme Court cases directly on the point because the law was so well established that no one would have thought to challenge it. We often lose track with very well-established law that you don't tend to see cases. And then subsequent scholars will sometimes believe you don't have law until the court has created the law. Public Health, we have this long suite. We had a period where people died of communicable diseases. I think the key reference point for me is that jurist potentially, public health cases, and national security cases were one in the same during the founding period. Smallpox epidemics or plagues were seen as dangerous as invasions.
Rosen: [00:07:24] Let's, as a test case, talk about the yellow fever epidemics of the late 19th century, and the history of shotgun quarantines. Polly, you've written an article on precisely that question. Epidemics, outsiders, and local protection, federalism theater in the era of shotgun quarantines. These epidemics, which took place in the south starting around 1875 culminated in the Supreme Court case that may be most on point. That's the 1905 Jacobson case, which upheld Massachusetts its power to impose mandatory vaccination. So, tell us about the history of shotgun quarantines, and the significance of the Jacobson case upholding those vaccinations.
Price: [00:08:11] Throughout the late 19th century, the south was periodically visited with yellow fever. Usually coming in through ports starting in New Orleans, Pensacola, other southern ports. And some of these were horrific in terms of the loss of life, and they instilled a lot of fear in people. The, these when the first report of yellow fever might, or just a ror might appear, further north, many cities, towns, counties, even states would throw up what wh- quarantines. They didn't call them shotgun quarantines. The press at the time called them shotgun quarantines. They were to keep people out. They did not want the infection moving further north.
Now, keep in mind they didn't know how it spread. And keep in mind also that at this point the federal government doesn't have complete control over port quarantines. So, the yellow fever episodes in the late 19th century are the first time that Congress debated, and it did so on several occasions. Debated whether the federal authorities should have control over interstate quarantine. It was clear that as a national defense matter, that at least keeping it outside of the country, could be a federal responsibility. It was a federal responsibility. But the question became, what about in the interior? Can the federal government help? Could it l- could it lift some of these quarantines? And they ended up with a statute at the 1890 Epidemic Diseases Act.
As far as I can tell, it's the first time that it adds to the federal government's quarantine authority, the ability to when, to enforce such regulations as are necessary to prevent the introduction, transmission, or spread of communicable disease from one state into any other. And that's not really been tested before. But for more than 100 years, the federal government has been given by Congress the authority to help in terms of when there is a, a communicable disease that threatens to spread from one state into any other state.
Rosen: [00:10:41] Thanks very much for that and for your really important history of the yellow fever epidemic. Ed, tell us about the Jacobson case, and whether there are any limits on state power. Just to review the facts on the holding. It was a seven to two majority from 1905. Cambridge, Massachusetts was held to be able to find residents who refused to get smallpox's injections. There had been a smallpox epidemic in 1901. In 1902 pastor Hennings Jacobson said he'd been injured by these previous vaccines. They were really dangerous, and he refused to be vaccinated and pay the fine.
And the US Supreme Court in an opinion by Justice John Marshall Harlan rejected his argents s- holding that the good and welfare of the Commonwealth of which the legislature is primarily the judge is the basis on which the police power rests in Massachusetts. This rests, Harlan said, on the principle of self-defense, a paramount necessity. A community has the right to protect itself against an epidemic of disease which threatens the safety of its members. But Harlan did end by saying, we're not inclined to hold that the statute establishes an absolute rule that an adult must be vaccinated. If it'd be apparent or can be shown with reasonable certainty he was not at the time of fit subject of vaccination or the vaccination by reason of his then condition would seriously impair his health or probably causes death. So, with that statement of the facts on holding, ar- are there any limits to what a state can do in the wake of Jacobson and tell us more about the history leading up to it?
Richards: [00:12:12] Well, I can certainly talk about Jacobson, but there's actually an earlier directly on point Supreme Court case on state quarantines. Compagnie Francaise de Navigation a Vapeur versus the Board of Health of the state of Louisiana, which is a 1902 Supreme Court case. In that case, the state quarantine power was directly at issue which is that, this is Louisiana, and the Board of Health was establishing quarantines in [inaudible 00:12:45], and they were attacked for various grounds. The State Supreme Court found they were constitutional, and this went up to the US Supreme Court, which then endorsed the state actions. And, in fact referred back to the 1799 Public Health Service Act, which recognized the power of the state and the role of the federal government in supporting the states. The role of the Public Health Service hospitals as part of the quarantine for ships coming in.
So, in this case, we really see the fed, the Supreme Court directly addressing the broad state police powers. Jacobson is the case where the Supreme Court really addresses the core issue in public health law, which is the right of the state to endanger the individual for the benefit of society. The fundamental difference between public health law, and, personal health services law or medical care law is that medical care law is about the individual, and we have informed consent, and we worry about autonomy. And most of the modern scholarship tends to come from that direction. Public health law is about the protection of the state. Sometimes we term it the protection of the herd. and that's why it is really jurisprudential analogous to national security law.
So, the smallpox vaccine at that period in time had two dangers. It had the intrinsic danger of a live virus vaccine, not a smallpox virus but a, but an immunologically si- similar virus, which could give you a secondary illness, but it was also produced in a very unsanitary way. They would infect a calf. They'd scrape the skin of the calf to- with the infection. They would make the virus, the vaccine from that, and it would be contaminated with bacteria viruses. So, the pastor was rightly concerned about the danger of the vaccine, but the court took that head on. That the danger of smallpox to the community greatly outweigh the individual dangers that a vaccinee might suffer. In that sense, it's analogous to the draft, and the cour- and the various decisions upholding that. The right of the state to endanger individuals for the benefit of society.
Rosen: [00:15:19] Before we turn to federal power, Polly, I want to ask are there any meaningful limits on state and local ability to impose quarantines? Scott Bomboy, our great web editor recently wrote a piece for Constitution Daily, Constitutional Powers and Issues During a Quarantine Situation. And he noted that in 1900, courts ruled against the city of San Francisco when it tried to inoculate and then quarantine Chinese residents against the bubonic plague when a court had doubts that plague conditions existed. So, is there any point in the 19th or 20th century where courts have ruled against state police powers with regard to quarantines?
Price: [00:15:56] Ye- yes there are, and I think there are more limitations in terms of what, what sorts of liberty restrictions or at least due process a person might be entitled to. We find that more in state constitutional law. And again, going back to this is essentially a state and local power. And quarantine laws vary greatly from state to state. But we also have the, in terms of following the rules for imposing a quarantine or an isolation order that st- state constitutions might limit that. The following the statute having the ability to challenge it. The least restrictive means. I think what we agree today is that there is a liberty interest. Whether you're in isolation or quarantine, there is a loss of, liberty, a, a, a protected interest.
On the other hand, the state health authorities, if you pose a health threat and they can show that they are using the least restrictive means, courts have been very clear that, that satisfies the constitutional aspect of it, or at least the, the liberty aspect of it.
Rosen: [00:17:16] Ed, your thoughts and insights about limitations on state and local power to impose quarantines throughout American history.
Richards: [00:17:24] I would be clear that the US Supreme Court has never, never required a least restrictive alternative on quarantines or public health measures. Some state constitutions are stricter, and there may be some state courts who have, have imposed that. There's also been a lot of statutory limitations over the last 25 or 30 years on state police powers. And those arose because of civil libertarian concerns during the AIDS epidemic and some other things that came up. and we need to be careful that we sort out the sort of fundamental constitutional powers from statutory limits on those powers. The states, again, unless limited by their state Supreme Court have very, very broad powers.
I think though, we keep concentrating on the wrong question, which is are these powers being used wisely even if they are existing? And if you don't use them wisely, even if you have the power, can you really impose them widely if the citizens resist? I think there's, there's too much focus on this theoretical issue of power. during SARS working on some projects with DOJ and Homeland Security, you know, it became very clear that while people focused on power, when you got to the point where you were talking about whether you're going to shoot the mother driving her minivan full of children out of the quarantine zone, you know you'd screwed up. and while you might have the power to do that, and Blackstone might applaud, that's not really the right way to think about these issues.
Rosen: [00:19:11] Thanks for that. And we will certainly turn to the practical and political limitations after we've sort of worked our way through the state and federal power issues. But we do need to turn now to federal power. As we've learned together it's states that have taken the primary lead for quarantine and other public health restrictions throughout American history. But Polly, tell us now about the history and limitations of federal power. What kind of power was exercised at the time of the framing, and maybe take us up through the 1918 flu epidemic when the federal government did issue isolation and quarantine orders. How did those fare in court, and what are the constitutional limitations on federal power, if any?
Price: [00:19:54] This is a big unknown area in the sense of what the constitutional limits are. I've argued previously that I don't think that there are many constitutional limits on it. There's certainly statutory authority for the federal government. We, we would need to talk about the issue of how they would be enforced. And I think that the Costa Mesa example is, is something that we could talk about. But going, going back in terms of history again, the, the Congress debated over and over, and whether they had authority under the Commerce Clause to regulate quarantines between states, and they decided more than 100 years ago, the answer was yes.
That question hasn't been tested. And if it were to be tested, there's actually Morgan's Steamship versus Board of Health. This is from the 1880s. here's, the Supreme Court says this, "Whenever Congress shall undertake to provide for the commercial cities of the United States a general system of quarantine, or shall confide the execution of the details of such a system to a national board of health or to local boards as may be found expedient. All state laws on the subject will be abrogated, at least so far as the two are inconsistent."
So, I, I think that was at least from over 100 years ago a signal that the court was accepting of this notion that matters of public health can be for the federal government to be involved with as well. So, there's authority there. In 2017, the CDC updated, revised its regulations on, federal quarantine and isolation authority. Have not been used much at all. The first really modern use of the group quarantine was for passengers who were evacuated from Wu Han.
Rosen: [00:21:56] Ed, where would you like to start in telling us about federal quarantine powers? You can take us back to the founding, and, and walk us through those 19th century debates where Congress asserted that it had power over the Commerce Clause, and, and, and tell us what the big exercises of federal quarantine power have in fact been?
Richards: [00:22:15] Well, it's not so much that there have been very many exercises of them. But in the early days, the Fed certainly ran the quarantine stations, as folks came into the country on ships. They did lead most of the public health enforcement to the states. The states were the major regulatory force. We have to remember that the federal government was a very small operation, during the late 1700s, and most of the 1800s. But I would like to reflect a little further on Morgan Steamship. It's a great case to bring up.one of the things we have to note is that the major form of transportation in the colonial period in the 1800s were rivers, and that almost all of our cities were on rivers. And the federal government controls navigable waterways even though they are inland. So, it was not much of a stretch to have a federal quarantine power deeply into the country just pigging back, just piggybacking on the navigable waterways in control of trans- in control of persons along these routes of travel.
Now, you add in Commerce Clause, and I agree completely that it's difficult to find a limit. The federal courts have not had to confront this. when we look at contemporary national security law and particularly the changes after 9/11, the establishment of NORTHCOM to coordinate military operations related to disasters which could include plagues, pandemics, as well as bioterrorism. And our current Supreme Court, which is extremely forgiving about exercises of executive power. I would agree completely that I don't really see any judicial limits in the contemporary world to the Feds exercising quarantine or other restriction powers in this context of a global epidemic.
Rosen: [00:24:24] Both of you have mentioned the Morgan Steamship case. We The People friends, this is from 1886, and I'll just read from the syllabus. The system of quarantine laws established by statutes of Louisiana is a rightful exercise of the police power for the protection of health, which is not forbidden by the Constitution of the United States. While some of the rules of that system may amount to regulations of commerce with foreign nations or among the states, they belong to that class, which the states may establish until Congress acts in the matter by covering the same ground or forbidding state laws. Congress so far from doing either of these things has by the act of 1799 and previous laws adopted the laws of the states on that subject, and forbidden all interference with their enforcement.
So, I'm hearing both of you say, Polly and Ed, that as long as Congress doesn't interfere with or forbid the state quarantines it has power. And now we're facing the question of whether it's conceivable that Congress could do anything with regard to quarantines that would exceed the constitution. And Polly, you did mention that the Wu Han quarantine was the broadest federal quarantine in American history, if I understood that correctly. So, t- tell us about whether, if any, there are doubts about the president's power to impose it under existing law. And then I have to ask whether there's anything that Congress could do that would violate the constitution? For example, we have a piece by Michael Dorf: Lock Us Down; Suspend Habeas Corpus; and Save the Nation, saying that the lockdown of the kind of China imposed would save many lives, and it would be permissible for the federal government to impose a similar lockdown in the US. Do you agree that, that would be legal or not?
Price: [00:26:09] Well, let me start with the, the Wu Han example. I think there's no question that when it's a question of at the border there are passengers coming in whether they're returning US citizens or not that clearly the federal government has quarantine authority. Can put in place a quarantine order. And at that point it, it's an effective order. They have moved them various places, unless they can get a state to cooperate. They've been using military bases as federal authority. There have been a, a couple of local objections to the use of those facilities for federal quarantine persons under federal quarantine orders.
In the past, without the federal quarantine order. Typically, what would happen is someone returns from overseas, and they are either ill or need to be in quarantine to be watched to see if they become ill. They would simply be turned over to state health departments, local, state and local health departments for them to manage the quarantine or the isolation, and that's what happened with Ebola with returning workers from overseas. Those were not federal quarantines that the workers were placed in. So in terms of w- w- w- we're talking about something I think completely different. If, if we look at the issue of quarantine as preventing travel within the United States. It's clear that the federal government has the authority to do it quite apart from the quarantine statute. If you think about what happened after 9/11 and a national emergency can ground air travel.
The question for the early, earlier congresses, or at least in the early 20th century. They were dealing with rail travel too, and the senators would debate. Could they prevent states from stopping rail travel at state lines or, you know, prevent them from bringing the mail through? So the kinds of questions they were asking then were very different from the ones that we face today. I, I agree with that.
Rosen: [00:28:19] And I'll, I'll just squarely ask you what you think of Professor Dorf's suggestion that the federal government could and should impose a national lockdown of the kind that we've seen in Italy. He notes that the US Constitution Supremacy Clause gives Congress the power to override state law. A national lockdown would be an exercise of the power to regulate foreign and interstate commerce here temporarily holding both in the immediate hope of saving lives and ultimately reviving our authority. To be sure, Professor Dorf notes a 1997 Supreme Court decision forbids Congress or the president from ordering state and local officials to enforce federal law, but nothing in the constitution forbids those officials from voluntarily doing so, and likely they would. Do you a- agree or do you think that there are civil liberties concerns that might limit Congress's constitutional power to impose a China style lockdown?
Richards: [00:29:15] Well, I think this, this takes us to the heart of this question about, yes, you can imagine a lot of things Congress can do that would probably be constitutional. Don't let Korematsu get too far from your mind. That was just an executive order. Whether they could make those work, whether that would be politically feasible. I think that it is absolutely absurd to think that could come out of Congress because Congress represents those states. You know, the, a national lockdown would not be established by statute, and at least in the world we live in. But it is the sort of thing that could come as an executive order. the state, the, the decision that says you can't commandeer state personnel isn't completely clear that, that is, applies in all concepts, in all circumstances. But the federal, the federal government's natural enforcement mechanism would be to nationalize the state guard units. Then combine those with military forces under NORTHCOM, and that would be the federal enforcement mechanism.
So, I don't think we're really worried about the state police. In many places they might go along with it. The National Guard certainly would be an enforcement mechanism the president can use, but that is the sort of thing that might get some widespread pushback, and then that begins to raise issues about... It's hard to do anything on a widespread area. Look at Hurricane Katrina where with all of our federal government resources any disaster that spread over a wide area are very difficult to get enough density of people to do any kind of enforcement or even widespread relief. So, that once you say, "Well, we're going to enforce this over the whole country." Well, suddenly, you know, you've got a national guardsman for every, you know, 100 square miles or 10 square miles.
So, I think the practical part of this begins to come into place. Would the Supreme Court march in and try to stop the president? It's not clear, and it might very well be like Ex parte Milligan where the Supreme Court said that Nick, that Lincoln couldn't do some of the things he wanted to do, but they waited until the war was over. The court might a year from now ta-ta get over it, but not stop it in the short term if we wanted to take global, but unwise measures.
Rosen: [00:31:50] Ex parte Milligan involved the suspension of Habeas Corpus, and imagine that Congress suspended Habeas Corpus, which usually allows people to go to court to challenge restraints on liberty. It might do that to eliminate the risk that some judge would enjoin a nationwide lockdown. Then there'd be a question of whether the suspension clause, which allows the suspension of Habeas Corpus only when in cases of rebellion or invasion, the public safety may require it. Would that require the Supreme Court to decide whether the Coronavirus is an invasion?
Price: [00:32:25] I, I think that the, the reality is state courts are more likely to see any challenges to either local closures or local quarantine orders than, than a federal court is. And, and I also think we should think about what happened during the 1918/1919 pandemic flu. So, if I could talk about that for just a minute. The Surgeon General of the United States asked Congress for money for a number of things, but primarily what the Surgeon General did was send out to local areas and urge them when they had cases of the flu to close public gatherings, prohibit funerals, do these different things. The, the pandemic flu, hit in waves. So, one part of the country would be suffering terribly, and then other parts later on would have the same thing.
But there was no attempt by the federal government to impose nationwide social distancing measures, as we'd call them today. They, they left those up to the state and local governments. And for better or worse, that they're probably the best decision makers. They know the local circumstances. They are politically responsible to their constituents, and these would be very unpopular measures, and were during the, during the pandemic flu. But it was a, again, we're, we're worlds apart in terms of what we expect from the federal government today than what we expected in the Spanish flu. On the other hand, we have some very similar circumstances in that the best advice we have now is social distancing measures. State and local governments are in charge of those. Many of them are taking significant steps to impose social distancing measures. And so, I think it would be quite a calamity in, in many ways for the national government to take over those local decision making.
Rosen: [00:34:26] Well, Ed, let's turn to the question of moving forward whether we expect most of the quarantines to be imposed by the states or do we expect in fact a nationwide quarantine? What are the lessons of the 1918 pandemic, and as we move forward, you've noted in your recent interview with Eugene Volokh for his Volokh Conspiracy that while some states have granted extensive due process rights through statutes, their state precedent that isolation and quarantine cannot be indefinite without triggering a periodic right to review of the need for restrictions. I guess I'm asking do you in practice imagine any successful legal challenges to state or federal quarantines moving forward?
Richards: [00:35:10] Well, the quarantines that were subject to these periodic reviews were the long-term quarantines of tuberculosis carriers, which are which t- were in-house institutionalization, and the quarantine might be on a six month period. Because if you had drug resistant tuberculosis, you essentially could be quarantined until you died. That's really very different than the relatively short-term quarantines we're talking about with Coronavirus. and I should say those were quarantines. A lot of what we're doing with Corona are isolations, which is the, in modern times we've drawn this distinction of isolating people and quarantining people. I should say the tuberculosis cases were probably in tech- in today's terms, the isolation of infected persons versus the quarantine of people who might be infected, but are not confirmed infected.
, I don't, we're not really doing what the Chinese did, which was to actually put people in facilities controlled by the state. We're talking about self-quarantine and limitations of travel and closing down venues in the light to prevent people from gathering in large groups. Nobody is talking about large scale opening of some sort of prison camp or prison hotel for locking people up. That would be the scenario where you could see the more traditional notion of a Habeas Corpus review.
And again, on the timeframe of that it would be as long as they were not months long. It's hard to imagine the courts would worry too much about that, but logistically we are not prepared to do that. I don't mean prepared in the sense of morally prepared. We just don't have the facilities. We have no place to put them. We're filling up military bases just with people off of cruise ships. So, a lot of our either worst scenarios from the [inaudible 00:37:18] point of view or most fanciful scenarios from folks who want to do a Chinese style approach just aren't possible in this country because we don't have the control of facilities that the Chinese do.
Rosen: [00:37:33] Polly, in very practical terms help We The People listeners, explain what we can expect over the coming months. What sort of quarantine and isolation orders are likely to come from the states? What if any from the Feds, and will any either state or federal orders come close to crossing any legal lines?
Price: [00:37:53] This may be somewhat out of my wheelhouse just in terms of what we might expect going forward. But I did want to say about whatever the source of the quarantine, it's absolutely true that we do not have large scale quarantine facilities. We're worried about having sufficient hospital space.so, it's, it's really the, the honor system in a way. If the local health department asks you to self-isolate, please be assured they have complete legal authority to do that and please, you know, respond accordingly. It, it's going to be a real hardship on folks who are homeless or don't have the capability to isolate at home or to quarantine at home.
And I did, I did want to point out also, one thing that's always struck me about issues of public health and the Constitution is we, we talk about rights. We talked about civil liberties, but we don't often talk about what are my responsibilities? What are my responsibilities as a citizen who is the beneficiary of all of these civil liberties that the US Constitution protects? And I think the responsibilities here are, are clear is that if, you know, the legal system may not be able to keep up with, enforcement measures that public health departments need to take. And so, the responsibilities in my view for residents of the United States are, are pretty significant.
Rosen: [00:39:25] Thank you for that, and thank you for reminding us of the crucial relationship between rights and responsibilities. Ed, recognizing that we're in, all of us are in what maybe unchartered territories, can you give us a sense of what kind of quarantines and legal regulations we might expect out of the state and federal governments and whether you imagine any of them could come close to crossing legal or constitutional lines?
Richards: [00:39:50] Well, let's stay within the, our world of traditional norms, and public health behavior. I think we'll see further expansion of closing schools, of limiting restaurants to take out food, of trying to block large public gatherings, and the, the definition of large will probably shrink. Beyond that, within the traditional public health world, public health authorities are reticent to order things that they, that people can't do, because that in- undermines the trust in public health and it undermines people's cooperation with all the public health orders. So, as long as there's some reasonable public health input into this, I don't think we're going to see things that will create really significant legal questions.
Now, we're not living in a, in the world of public health and governmental norms we were a few years ago. So, it's, I can't look into my crystal ball and predict what might come out of the federal government that is not shaped by public health opinion and authority. let's just hope that they continue, at least or begin to defer to public health authority on this. Because when we're in a major public health crisis involving the whole population, you're really, it's really inadvisable to take extreme measures that you can't carry out which then call your whole operation into question.
Rosen: [00:41:26] Polly, I will ask, is there anything that the federal government could do that would raise serious legal or constitutional questions under the current doctrine and remind our listeners, does the federal government's entire authority come from the Commerce Clause? And if so, does that power have any limits that could be tested in the weeks and months ahead?
Price: [00:41:47] I think that in addition to the Commerce Clause, the General Welfare Clause comes into play for any issues of, of public health that constitute something like a public health emergency. And remember that the federal government has all sorts of power that we didn't imagine 100 years ago when we got interstate quarantine authority. So, the, you know, the Stafford Act, how, how do we respond to other kinds of disasters? We have incident command and response units setup. And many public health departments have practiced for these kinds of scenarios. Perhaps we haven't practiced enough with the federal government, but, but I for one, think that the CDC has done an excellent job over the years in supporting public health state and local public health authorities.
We just don't have enough of them to approach this in the traditional public health of isolate, quarantine, trace contacts. You know, at some point, they could be overwhelmed just in terms of, of numbers. So, so I do think we'll continue tend to see closure advisories at least for, you know, short periods of, of time. And I, I don't foresee use of federal power that would violate constitution if it goes beyond, you know, taking over these key local and state decisions. I think at some point that surely would cause some kind of a reaction and I think either from the state legislators or Congress itself.
Rosen: [00:43:24] Thank you very much for that. A fascinating reference to the General Welfare Clause. Article one, section eight, clause one of the Constitution, the Congress shall have power to lay and collect taxes, duties imposed, and excises, to pay the debts and provide for the common defense and general welfare of the United States. But all duties imposed and excises shall be uniform throughout the United States. Ed, that's the first reference we've heard to the General Welfare Clause in this great discussion. Do you agree with Polly that, that provides affirmative power to Congress to impose nationwide measures, and is there anything that Congress or the President could conceivably do moving forward that you think would violate the constitution?
Richards: [00:44:07] Well, Congress certainly has those powers. Congress has been pretty silent for the last 50 years on power. So I mean, on its own as opposed to just giving more discretionary power to the President. So, I would look to Congress, but you have to remember the president has his portfolio of national security powers, and whether we're talking about an insurrection or the more fundamental notion that in sort of traditional international law of the state, states ultimate right is the right of s- of self defense. Not of the individual but of the state, and these plagues, these pandemics threaten the underlying civil order. That's why the ori- the early Supreme Court cases were so adamant on the, on the power of the state and the power of the federal government is that they are threatening the order of the state. If enough people got sick at the same time, services would collapse. Utilities would collapse, the st- the state could descend into chaos.
That's the real origin of the fed- of the executive branch's power. And the extent to which that is threatened is the extent to which the courts will allow the power. We'll find it within the Constitution. We always find that the power meets the necessity. and again, with this particular Supreme Court, it wouldn't be a very far push. So, I believe you could see very significant federal intrusions federalizing state action using National Guard to perhaps close highways, and I still don't think that the Supreme Court would find that a constitutional violation. and you're challenging us to come up with something the Supreme Court would find as an unconstitutional act. And we're both pushing back on between the broad powers and between the long-term tradition that the court gives the president the power to meet the emergency. We can't come up with it, not because there aren't terrible things that could be done, but because the courts would probably accept them.
I think the really, the only pushback we've seen about the president's use of emergency powers is Youngstown Sheet & Tube, the steel seizure case, where the Court refused to allow Tran to steal, to seize the steel mills to stop a strike during the Korean War. And in that case, the Court justices knew from the newspapers that there was plenty of steel inventory and that it wasn't a real emergency. That combined with fairly direct congressional statutes opposing this type of seizure is that one example we can find where the court really deny the president when he claimed it was an emergency power?
Rosen: [00:47:07] Well, it's time for closing argents in this very illuminating, and, and sobering discussion of the virus and the Constitution. Both of you who have argued powerfully and with details that there are no clear limits on the powers of the states or federal governments to react to a public health emergency under existing precedents. As we move forward in the anxious weeks ahead, what are the legal and constitutional issues that you would direct We The People listeners to educate themselves about, and to follow regarding public health and the Constitution that we may not be aware of? And the first thought is to you, Polly.
Price: [00:47:51] I would, t- th- think that what we should really be focusing on is the cooperative thinking we're all in this together. You know, whether we're separate states, whether we're separate localities. Whatever the federal government does, it comes down to public health is local and the person, the listeners are going to be hearing from directly is certainly their governor, if not the mayor of their city. And these are times in which I don't know that law really has much to say.
And, and the reason I mention that is when we go back to the yellow fever epidemics, and we look at the Spanish flu, and these were... The Spanish flu particularly, these were just, you know, really very trying times for the country. And when you look at the court cases, that again, the Supreme Court, the federal courts are not really involved in this because it's such a state and local matter. But judges themselves will say in the few cases that, that came out of that, you know, the law is reflecting the necessity of the times. They were very hesitant to intervene in, any of the actions that the elected officials were taking because they recognized, you know, the expertise is not with the courts. It's with, today we would say it's with our, our respected medical authorities that we need to trust, and our local state and local governments are going to be translating those directions as best they can.
Rosen: [00:49:25] And Ed, the last word is to you, what legal or other issues should We the People listeners be attentive to during the challenging weeks and months ahead?
Richards: [00:49:37] Well, I think the law is a dangerous distraction. Right after 9/11 when we worried about bioterrorism, and then quickly soon, quickly after that we had the SARS outbreak, there was a lot of good work done on what was necessary to prepare the public health system to deal with these kind of problems. And yet what Congress did, and state legislators did is they got, they focused on model laws and proposals by scholars about all the new laws we needed, and they passed laws. Laws are cheap. They make people think that they've solved the problem. Yet they did not put the money and the personnel into the health departments to be prepared for this, to do the surveillance, to take the yearly flu pandemic, which will, which will probably kill 20, 25,000 people this year in the United States, seriously.
So, we often fall back on laws as a cheap, easy solution to problems rather than looking at the very hard problem. Well, I think what your listeners should be thinking about is they need to be digging into their pockets to put money into state health departments and local health departments to get competent expertise in epidemiology and public health. To understand that personal medical services, the docs who take care of people when they're ill. Those are important, but those are not the people that should be running health departments. You need someone who cares about the population. Till we can just politically solve the anti-vaxxer problem, we certainly can't begin to talk about how we're going to solve these larger problems.
So, we need to go back and think about how are we in this together. How do we need to make our public health system work? How do we give our political support, and our money to making the public health system work instead of always falling back on the easy answer? Well, we'll fix it with law.
Rosen: [00:51:31] Thank you so much, Polly Price and Ed Richards for an illuminating sobering, and i- important discussion of the Constitution and the Coronavirus. Dear We The People listeners, please know that during the weeks and months ahead, We The People will continue to bring you balanced engaged constitutional learning. We will convene the greatest experts in America every week to discuss constitutional issues, and the National Constitution Center will expand its online education initiatives. We will host live teaching about the constitution for middle high school, college kids, and adult learners. And we will convene special public programs on YouTube, Zoom and on our website so that learning about the constitution can continue during this crucial period.
As Ed and Polly both said, so well, we are all in this together as citizens, and also as a community of lifelong learners. So, sending all of you very best wishes, and look forward to talking again next week, and in the weeks and months ahead. Polly, Ed, thank you so much for joining.
Price: [00:52:47] Thank you.
Richards: [00:52:47] Thank you.
Rosen: [00:52:55] Today's show was engineered by Greg Scheckler, and produced by Jackie McDermott. Research was provided by Nicholas Mosvick, and Lana Ulrich. Please rate, review, and subscribe to We The People on Apple podcasts, and recommend the show not only to friends, colleagues, and people who are hungry for constitutional debate. But as your kids are home from school and are looking for learning, please share these podcasts. We will be digging into constitutional issues in the news, and it's such an important time to continue our learning as many of us are working from home. And always remember dear We The People friends, the National Constitution Center is a private nonprofit. These are anxious times for all of us and we continue to rely on the generosity of people like you from across the country who are inspired by our nonpartisan mission of constitutional education and debate.
Friends, I, I think the mission has never been more important, and we will be speaking with you on all of our platforms. Here on We The People at constitutioncenter.org with our live learning for students of all ages. So, please stay engaged with the Constitution Center. Support the mission by becoming a member at constitutioncenter.org/membership. Give a donation of any amount to support the work including this podcast at constitutioncenter.org/donate. Most importantly, keep learning. Keep tuning in, stay with us, and always write to me. tell me what you think, and if there are topics that you think the podcast or the Constitution Center should address email me [email protected], and let me know. Sending everyone very good thoughts. On behalf of the National Constitution Center, I'm Jeffrey Rosen.
