In recent weeks and months, we have watched China, Italy, and other countries take aggressive measures in order to contain the spread of COVID-19, culminating in extraordinary restrictions on individual movement, the mass closure of public and private facilities, and the containment of large geographic areas through various means of border control.
As these extraordinary actions are being implemented or contemplated in various parts of the United States, they raise understandable questions about the extent of domestic legal authority to take these steps.
Range of Actions: Isolation, Quarantine, and Cordon Sanitaire
A few definitions are in order. Isolation is a measure to separate persons who are ill with a communicable disease from healthy persons and to restrict their movement. Quarantine is a means to separate for a period of time well persons who may have been exposed to a communicable disease, in order to determine if they become ill. In both cases, the core goal is to limit the spread of communicable disease and protect the public by preventing exposure to those who are infected or may be infected. A less well-known term, but one that is increasingly relevant, is cordon sanitaire. Rarely used in modern times, cordon sanitaire is the establishment of a geographic containment zone, typically monitored by authorities, to restrict movement into and out of an infected area. Shelter in place, while not a traditional public health term, is being used to describe actions to severely limit the movement of individuals within a geographic area, requiring them to stay at home except for certain essential activities.
These measures can be implemented on a voluntary basis or, if necessary, compelled through the application of legal authority. They may be combined with other steps, such as the closure of schools and certain businesses, the commandeering of property in order to protect public health, and “shelter in place” guidance or instructions in order to maximize social isolation within a given geographic area.
Who Holds the Legal Authority to Act?
In other countries, authority to take these measures is often held primarily at the national level. In the United States, however, legal power to impose isolation, quarantine, cordon sanitaire, and related steps within state borders is vested in states through inherent “police powers.” These police powers reflect the broad authority of each state to enact and enforce laws that safeguard the health, safety, and welfare of its citizens.
There is wide variability in state laws implementing these police powers. In some jurisdictions, the laws and regulations are very detailed. In others, the legal authority is quite broadly worded. Moreover, this power may be held concurrently by the Governor, the state health department, and state law enforcement authorities charged with assisting in enforcement. This complexity is compounded by the fact that local governments in some cases are empowered to implement state law, and in other cases may also have independent authority to implement and enforce more stringent local laws.
While state police powers to contain intrastate infectious disease spread are broad, the federal government has primary legal authority, derived from the Commerce Clause of the United States Constitution, to take measures to prevent the introduction of communicable diseases into the country, as well as interstate disease transmission. Isolation and quarantine authority is vested in the United States Department of Health and Human Services by statute and explicitly encompasses novel flu viruses. By regulation, the Centers for Disease Control and Prevention (CDC) is responsible for implementing these powers. Certain federal law enforcement agencies are charged with assisting in the enforcement of federal isolation and quarantine orders.
State, federal, and local public health authorities can exercise concurrent authority in certain cases. In addition, the CDC often will assist state and local counterparts in the implementation of communicable disease containment measures and, conversely, state and local public health agencies will assist the CDC in the implementation of federal isolation and quarantine powers.
While the law supports broad police and federal powers in this area, the outer boundaries of these measures when constraining civil liberties or control of private property could well be tested in the courts in the coming months. Case law in this area is relatively limited, particularly as it relates to broad geographic strategies such as sheltering in place or cordon sanitaire.
Most domestic organizations and individuals are being impacted by government responses to COVID-19, whether compulsory or in the form of guidance, and it seems clear that additional measures are to follow. Schools and public facilities are being closed, as are restaurants and other retail establishments. Gatherings are being limited to small numbers or are being canceled. Business operations are being converted to telework modalities. Executive orders allow for the commandeering of private facilities if needed for treatment or containment. Foreign air travel has been curtailed, with discussion of possible restrictions on domestic air travel. The US-Canadian border is being closed down. In the San Francisco area and in New Rochelle, New York, shelter in place orders are in effect, with other localities potentially following suit. Most recently, the Governor of California announced a shelter in place order affecting the entire State of California.
For individuals and organizations trying to navigate domestic orders or guidelines restricting movement or operations in response to COVID-19, the reality of United States law can be frustrating and confusing. This is especially so for enterprises operating in multiple jurisdictions, due to the patchwork quilt of federal, state, and local law, and the unprecedented scope of emerging government responses.
Businesses should conduct an assessment of legal requirements and guidance specific to each locality in which they operate, and discern between mandates and guidelines. Civil and criminal penalties should be evaluated, as should ancillary insurance coverage and liability considerations. Finally, it will be important to monitor guidelines as to the extent of government authority to impose various measures, as well as any legal challenges to the exercise of this power.