People want to know how much can the government really restrict their movements. Can the government really stop healthy people from congregating?
I think the short answer to both is yes, at least in the short term, and at least until some court says otherwise, and for reasons I will discuss, I do not see a court overturning a government shelter-in-place order anytime soon. (Ok, maybe that wasn’t such a short answer.)
There are both federal and state law issues and overlapping jurisdictions, theoretically. I say theoretically because as of today, Sunday March 22, 2020, there is no federal quarantine or shelter-in-place order, though the federal government has the power via the CDC and Surgeon General’s office to issue such orders.
Because we are a federal system government, in general, the feds directly control entry into the country and movement between states (via the Commerce clause), while the individual states control movement within the state.
Here is one of the key federal regulations:
“§264. Regulations to control communicable diseases
(a) Promulgation and enforcement by Surgeon General
The Surgeon General, with the approval of the Secretary, is authorized to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession. For purposes of carrying out and enforcing such regulations, the Surgeon General may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary.
(b) Apprehension, detention, or conditional release of individuals
Regulations prescribed under this section shall not provide for the apprehension, detention, or conditional release of individuals except for the purpose of preventing the introduction, transmission, or spread of such communicable diseases as may be specified from time to time in Executive orders of the President upon the recommendation of the Secretary, in consultation with the Surgeon General,1.
(c) Application of regulations to persons entering from foreign countries
Except as provided in subsection (d) of this section, regulations prescribed under this section, insofar as they provide for the apprehension, detention, examination, or conditional release of individuals, shall be applicable only to individuals coming into a State or possession from a foreign country or a possession.
(d) Apprehension and examination of persons reasonably believed to be infected
(1) Regulations prescribed under this section may provide for the apprehension and examination of any individual reasonably believed to be infected with a communicable disease in a qualifying stage and (A) to be moving or about to move from a State to another State; or (B) to be a probable source of infection to individuals who, while infected with such disease in a qualifying stage, will be moving from a State to another State. Such regulations may provide that if upon examination any such individual is found to be infected, he may be detained for such time and in such manner as may be reasonably necessary. For purposes of this subsection, the term “State” includes, in addition to the several States, only the District of Columbia.
(2) For purposes of this subsection, the term “qualifying stage”, with respect to a communicable disease, means that such disease—
(A) is in a communicable stage; or
(B) is in a precommunicable stage, if the disease would be likely to cause a public health emergency if transmitted to other individuals.”
Here is the URL for the CDC’s “Specific Laws and Regulations Governing the Control of Communicable Diseases” which lays out all the laws and regulations applicable to this kind of situation. It is worth looking at.
But the bottom line is that as of now, there is no federal anything with respect to freedom of movement or quarantine, shelter-in-place, yet, (at least if you are currently in the United States.)
Up until now, the shelter-in-place orders have been by city or area (the first was the Bay area) or more recently, states (California, and the mid-Atlantic states, and Illinois).
AB 262: Does it apply?
The Cali. VC community experienced a high degree of panic in the last fall when the legislature passed AB 262. They feared the new law would be used by the local Cali public health departments to take away their unvaccinated children. My view was that was not the intended purpose of the bill, and that the law was really about conveying information and clarifying the decision-making chain of command in the event of an epidemic, so the VC community did not need to be worried about AB 262 in terms of their unvaccinated medically fragile children.
Well, we are in the beginning stages of a pandemic, so I guess it is time to refocus on AB 262, as it might provide the starting point to the answer in California as to how far the state can go. The answer is pretty damm far.
Here is the operative provision of the new state law:
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
Section 120175.5 is added to the Health and Safety Code, to read:
Section 120175.5 is added to the Health and Safety Code, to read:
(a) During an outbreak of a communicable disease, or upon the imminent and proximate threat of a communicable disease outbreak or epidemic that threatens the public’s health, a local health officer shall do both of the following:
(b) In addition to the actions required under subdivision (a), the local health officer may issue orders to other governmental entities within the local health officer’s jurisdiction to take any action the local health officer deems necessary to control the spread of the communicable disease.
Of course, AB 262 does not itself set out enforcement mechanisms, as those are set out by the local health regulations. In my prior post, I linked and explained what the LA Country quarantine rules looked like. I won’t repeat them here, but here is the link to the prior post.
Do people have no legal rights to challenge these rules?
Look, any one can sue any one for anything at any time (as long as the courts are open or accept filings I suppose), and in fact, the first lawsuit challenging a shelter-in-place order was filed a few days ago. As expected, the TRO was denied and the case is apparently set for a preliminary injunction hearing maybe next week. Here is the article upon which I am basing this.
I think this lawsuit is really stupid, given that we are at the beginning of a pandemic where fear and an overwhelming desire for prophylaxis (“flattening the cure”), rather than an actual catastrophic event (like hundreds of thousands of deaths) is driving the narrative and government action.
What do these folks expect a judge – who is no doubt practicing self-distancing – to do? Go against the national sentiment and say the personal rights of a few people to associate are more important than protecting citizens from death from a plague which most experts think could happen? What judge is going to make a decision which could harm tens of thousands of lives?
As I keep saying, the Constitution is not a suicide pact, and the speech, association and religious rights of the few will always lose to the rights of the many to public health and safety. That was true during the SB 277 legal challenges when the issue was a relatively abstract concept of herd immunity, and it is a zillion times more true during an actual “pandemic.”
There is another saying, bad cases make bad law
So, these three idiots (and their idiot attorney) are going to force a judge to deny their preliminary injunction. Hopefully, they will have the belated good sense to walk away. If they don’t, maybe they continue to litigate the case, or maybe they try for an interlocutory appeal (i.e., an appeal before the end of the entire case, and not being a lawyer in that state, I don’t know whether that’s possible under their rules of court and procedure). If they do, then we will have appellate court authority on the issue. My prediction is that an appeal will go against them citing of course Jacobson. But you really don’t need a crystal ball to see that coming.
Look, there may come a time and place where legal challenges will be necessary, but it’s not now, and not on a direct challenge to a shut-in order.
So, if not now, when?
The time will come, hopefully in the next few weeks to a month, when the fear of the worst-case scenario is past or almost past. At that point, if the government restrictions appear to be unnecessarily oppressive to most people and many experts, AND if the enforced self-isolation/ quarantine becomes indefinite and is by fiat of individuals or the few, (even if they are judges), that might be the time for legal action. I say this because judges generally defer to public health officials and the government to ensure public health, and are reluctant to engage in second-guessing, in general, much more so during an epidemic like what faced the City of Cambridge in Jacobson, and even more so during a pandemic.
If there is to be a successful lawsuit, I predict that it will not be based on First Amendment rights to associate, because as indicated, that right will never win over the public’s right to safety and health, especially during a pandemic.
Rather, it will take a stronger right. The strongest right there is (in my opinion anyway) is the intersection between due process and habeas corpus. Meaning, if they start quarantining people indefinitely without a method of judicial redress, that is when I think the courts will show-up and protect people, and not a moment before.
Rick Jaffe, Esq.