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Coronavirus: Can the U.S. Quarantine Its Citizens?

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When the COVID-19 virus began in Wuhan China, the Chinese government in effect quarantined an ENTIRE CITY – millions of people were not allowed to leave. 

Can the U.S. Government do something like that if the Corona-virus springs up in, for example, Los Angeles?

In China, right now, February 22, 2020 the Chinese Federal Government is limiting the movement of over 50 million people.  Roads are shutdown, people are not allowed to congregate, and infected people are being forcibly removed to quarantine. 

Could the U.S. Federal government (legally) shut down a city, restrict citizens ability to gather in the city and forcibly remove victims to hospitals?

The short answer is, basically no, unless it was to do something never really done before in history.  Let me explain briefly why.  The Tenth Amendment to the Constitution says that any power not given to the Federal Government remains with the States.  And, in general, the health and welfare of the people is a power that remains with the States. 

The Tenth Amendment, ever since the ink dried on our most sacred document has been the legal place of major constitutional battles – slavery, civil rights, all revolved around this push and pull between the Feds and the States. And so does the marijuana legalization battle as well – just in a much more chill way.

In any case, this Constitutional framework has left us with a limited Federal illness control department – the Center for Disease Control – known as “THE CDC.”  The CDC does have some power though but only at constitionally recognized places – our Borders, our ports of entry and at State lines.  That’s why you recently saw the CDC get involved with the cruise ships and the COVID19 infections and requiring those passengers to be quarantined.  In theory, the CDC could also prohibit infected individuals from crossing state lines.

But the true force of America’s defenses against the spread of COVID19 are the approximately 2,500 state, local , and tribal health departments. 

Now, the power of the States and local governments, I was suprised to find, is almost unlimited to quarantine people, force medical exams, even to take private property.  This issue was decided back in 1905 in Jacobson v. Massachusetts, The Court there said “Upon the principle of self-defense,  a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.”  And then during the Spanish Flu epidemic in 1918 you in fact did see state and city health departments extensively quarantine and restrict the gathering of people.

But remember, the quarantine power lies with the states, not the Feds.  For example when an American citizen recently wanted to leave the military base where he was quarantined with the Corona-virus, he was not allowed to leave not because the military or Feds said so, but because the State of California said so.

This system is inherently American but also obviously inherently not as cohesive as the Chinese system or even the Japanese system of risk containment. 

There is a always a price for freedom and… this is it.  The CDC can issue guidelines and recommendations but that doesn’t mean that Alabama has to follow the recommendations.   Live free or die!

So, what is the one exception I was thinking of?

How could the Feds step in and control a COVID19 epidemic. Well, it’s never been done before but the Federal Govt. has declared martial law in the past – martial law being where citizen rights are suspended and the military takes over.  IN the past, Martial law has been declared after natural disasters, after local rebellions or uprisings (usually improperly so).  Hawaii was under Martial law during most of WWII.  However, martial law has never been stretched to cover something like a flu epidemic. 

Who would make that call if the Feds wanted to try?  The President of the United States.  That would be interesting.

And on that note, I will leave you for today.

Jeremy Hogan
Jeremy Hogan
Attorney Jeremy Hogan is a partner at Hogan & Hogan.