COVID-19: History And The Law--How Far Is Too Far?

Covid-19 has changed our way of life.  Meeting old friends, dinner with the parents, a first date for our single friends, have all been forbidden, arguably making some of our favorite pastimes criminal.  In places like Santa Cruz County, law enforcement has begun to issue citations for violating the Shelter In Place (SIP) order.  Seven Fremont residents were recently fined for going to Santa Cruz for free drinks, an obvious breach during COVID-19 times;  otherwise, harmless.^[1]  

The response to SIP orders has created a clear divide in our country.  Those against it say going out and possibly getting infected should be their choice, their risk to take.  The fines and penalties for congregating are viewed as excessive, sparking anger and protests, and sheer defiance of the orders.  So, does sheltering in place really help?  What power does the government have in times like these?

Let’s revisit the past.  The United States is no stranger to the deadly effects of a global pandemic.  In 1918, the world was hit with the “Spanish Flu”.  The 1918 influenza claimed the lives of an estimated 50 million people worldwide, the deadliest pandemic known to man.  To see just how effective social distancing can be, compare the Philadelphia and St. Louis experiences.^[2]  Ten days after the first deadly case of the Spanish Flu, Philadelphia hosted a parade to honor returning soldiers from World War I.  Two hundred thousand people attended.  By contrast, St. Louis cancelled its parade.  The aftermath was telling:  St. Louis had a death rate of 358 per 100,000; in Philadelphia, a death rate more than double that at 748 per 100,000.  The numbers speak for themselves.

Philadelphia and St. Louis are not the only examples.  A National Geographic study showed that cities with shorter or later social distancing periods during the Spanish Flu experienced higher death rates overall versus slowed infection rates and lower death rates for cities that followed social distancing orders sooner and for longer periods of time.  Bottom line, shelter in place works, but how far is too far when it comes to enforcing the order?  What exactly should the government be allowed to do?

In situations like the one we face today, the federal government has a number of emergency powers.  It has the power under the Public Health Service Act, among other things, to order regional or nationwide containment and quarantine measures when responding to public health emergencies.^[3]  COVID-19 has been listed as a public health emergency for this purpose earlier this year.  The National Emergencies Act allows the president to reallocate funds from other federal government operations during national emergencies.  On March 13, 2020, President Trump formally declared the COVID-19 outbreak a national emergency.^[4]  The Defense Production Act permits the president to order companies to make supplies necessary for national defense.^[5]  In late March, President Trump finally invoked his power to order General Motors to make efforts to manufacture ventilators.^[6]

While the federal government has enumerated constitutional authority to implement and enforce such measures, states possess a broader “police power,” in particular when protecting public health.  For example, states have the power to make quarantine and isolation orders.  States can call upon the National Guard to enforce those orders if there is widespread noncompliance.  The California Supreme Court has affirmed the state’s power to order the quarantine of persons who have come in contact with carriers of contagious diseases.^[7]

If and when a vaccination is developed for COVID-19, states may be able legally to mandate vaccinations.  The Supreme Court has upheld, against various constitutional challenges, state laws requiring immunization for various diseases.  In the 1905 seminal case of Jacobson v. Commonwealth of Massachusetts, the Supreme Court recognized that the Constitution “does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint.”^[8]  Instead, the individual right must at times make way for the right of a community “to protect itself against an epidemic of disease which threatens the safety of its members.”^[9]

Here, federal, state, and local governments have imposed social distancing orders across the country.  The U.S. Department of Homeland Security, Cybersecurity & Infrastructure Security Agency (CISA) issued a Memorandum on Identification of Essential Critical Infrastructure Workers During COVID-19 Response.^[10]  Some states have taken different approaches on whether to follow the CISA Memorandum, implementing their own definition of “essential” businesses, or some combination of the two.  As several states are beginning to reopen their economies, it is clear states differ on when and how to do so.

Apart from federal or state SIP orders, things will not begin to return to normal until people generally feel safe to return to their lives as they were before COVID-19.  Ongoing surveys demonstrate the greatest fear among Americans is a return to “normal” life too soon, only to result in a second wave of COVID-19 infections and a prolonged economic shutdown.^[11]  If history teaches us anything, we can learn a great deal from Philadelphia and St. Louis and their responses to the Spanish Flu in 1918.