Do State Public Health Orders Conflict with the Constitution?

May 20, 2020 Hoaxlines Lab

E. Rosalie Li, Interdisciplinary Public Health Johns Hopkins Bloomberg School of Public Health

“Militia” groups protesting orders show the influence COVID-19 has had in the US. Many Americans currently struggle to feed their families and may not have jobs when this is over. The realities are grim. Still, the arguments against the powers belonging to a governor remain thin.

Emergency actions have limited personal freedom, which is not automatically at odds with the Constitution. The Harvard Law Review states:

“Rights limitations are typically permitted when they are narrowly tailored to their intended goal… because rights are never absolute, it may not be necessary to declare a constitutional emergency: government can combat crises through law, as long as any restrictions of civil liberties are necessary and proportional.”

The U.S. Federalist system gives the federal government only the powers stated in the Constitution. The 10th Amendment preserves all powers beyond that for states and the people. Using that power when needed and as intended is not at odds with the Constitution — a document people can disagree with but not ignore.

The founders structured power such that public health response was left to local or state-level leadership. That’s also practically wise since what New York needs will not be the same as what Iowa needs, but the aims of the orders will always be identical: protect the public’s health.

<aside> ✅ Measures within the state’s power using existing legal precedent:

• Isolating people who test positive for an infectious disease
• Quarantine — this has both a legal and everyday meaning, and these are not the same — confines someone who has been exposed to the virus to see if they get sick
• Closing businesses likely to spread the virus quickly that are not essential — gatherings with many people, shared items that go person-to-person
• Shelter-in-place
• Vaccination mandates under penalty of fine, job loss, or jailing </aside>

<aside> <img src="/icons/help-alternate_red.svg" alt="/icons/help-alternate_red.svg" width="40px" /> Measures that flirt with the legal limits:

• Cordon sanitaire: strict isolation of a specific area by land, air, and sea under threat of epidemic
• Anything that unfairly targets a specific group, like non-state residents
• Confining a group of people in a specific location, like the Diamond Princess cruise
• Orders that are broad or too general and unsupported by science
• Military-style policing of people to make them follow orders or strict enforcement where people may be hurt or imprisoned </aside>

Measures listed within a state’s power have traditionally been upheld and do not conflict with the Constitution when meeting specific requirements.

The actions may not be arbitrary and must apply equally. A shelter-in-place order that applies to Asian Americans only, for example, would be unconstitutional. Ordering everyone to wear magical protective hats because a governor feels they would help falls short of the requirements and is unconstitutional. Mandates may not target a certain subgroup or be discriminatory. Outbreaks have a notorious history of providing cover for discriminatory behavior.

• In the early 1900s, elected officials enacted public health orders to control the spread of the plague.
• Enforcement was unequal and targeted Chinese immigrants, making the order illicit, but these measures may have been legal if equally applied.
• The discrimination, and not the restriction, rendered it unlawful.

States possess “policing powers” to enact statutes and regulations to protect public health. This is not “police” like law enforcement, but “police” like the state may police the public’s health. The power to police the public’s health in a crisis implies a duty to do so. It is the responsibility of a just leader, not an attack on freedom. Measures taken to ensure society survives without extreme loss can be licit.

“The police power is the right of the state to take coercive action against individuals for the benefit of society.”

“The police power is very broad, encompassing not only traditional public health, but environmental law, and any other area where the government acts to protect health and safety. The Constitutional roots of the police power are deep. The colonies were ravaged by communicable disease.

There was a yellow fever epidemic raging during the writing of the Constitution...It is not surprising that the Constitution, shaped in this environment, would grant the state great latitude in enforcing laws to protect the public health.”

— (Richards, 1999)

States have broad authority — shockingly broad, to be honest, though the reasons are also clear— over the business and school operations. The measures must be ethical and represent the least invasive way to achieve the end. Emergency declarations permit governors to access funds and powers not ordinarily accessible, and some of that power is extreme. These have been expressly designated to them by Congress in legislation [1].

In an emergency, state orders may preempt local orders.