In the space of a few hours on Saturday, President Trump went from threatening an ALL-CAPS federal “QUARANTINE of developing ‘hot spots’, New York, New Jersey, and Connecticut” to… having CDC issue a “strong Travel Advisory” for the tristate area instead.
It’s hardly the first time this president has floated some eye‐poppingly authoritarian proposal, only to back away from the Rubicon shortly thereafter. By now, the pattern should be familiar:
Trump hits “send tweet” on some crank theory of absolute executive power. Law professors and pundits cancel their weekend plans, scrambling to figure out “Can he do that?”—only to realize, weeks later, that they needn’t have taken him literally or seriously.
But when I wrote that in Reason magazine a year ago, “weekend plans” were still a thing. In the pre‐COVID‐19 era, it was usually safe to take the president’s autocratic reveries with a grain of salt. We’re in new territory now. The pressures for bold action in times of crisis have led far cooler‐headed presidents to make desperate and dangerous moves, and there are far rougher days ahead. Our radically changed circumstances make this particular proposal worth worrying about.
A number of questions come to mind: first among them, “can he do that?”—is there any plausible legal authority for a domestic Travel Ban encircling three states and some 30 million Americans? Second, if he tried, how could the feds enforce it? And finally, just how nightmarish would that scenario be?
Let’s start with the legal question. The key statute for federal quarantine authority is the Public Health Service Act (PHSA), which has been used, in recent outbreaks, primarily for international travel restrictions. However, the PHSA also provides authority to issue regulations aimed at preventing disease spreading across state lines, and authorizes the apprehension and examination of
[A]ny 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.…
The PHSA seems to envision individual testing, not interstate blockades. Regulations issued under its authority:
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.
That language does not appear to support a federal power to impose a cordon sanitaire around the Tristate Area unless virtually any person attempting to leave can be “reasonably believed” to already have COVID-19. Still, even more tortured interpretations of federal law have prevailed, at least temporarily, in past crises. I wouldn’t necessarily count on the courts to enjoin this one.
If the administration opted for an “enforceable quarantine,” how would the feds enforce it? “One option,” as George W. Bush put it in the wake of the Katrina debacle, “is the use of a military that’s able to plan and move.”
Indeed, for an operation on the scale Trump suggested, it may be the only option. “Neither the Public Health Services Act nor CDC regulations specifically authorize military enforcement of federal quarantine orders. But neither HHS nor CDC possess sufficient resources to enforce mass quarantines,” observes Jesse T. Greene in a 2015 Harvard National Security Journal article, “Federal Enforcement of Mass Involuntary Quarantines” (here’s hoping your social‐distancing reading list consists of somewhat more soothing titles).
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