The Federal Government Probably Can’t Order Statewide Quarantines

8 Pages Posted: 21 Apr 2020 Last revised: 12 May 2020

See all articles by Maryam Jamshidi

Maryam Jamshidi

University of Colorado Law School

Date Written: April 20, 2020

Abstract

On Saturday, March 28, 2020, President Donald Trump floated the possibility of issuing a “quarantine” order for the states of New York, New Jersey, and Connecticut because of their numerous COVID-19 cases. Later that day, Trump backtracked and declared that a quarantine order would “not be necessary.” While quarantines can differ in type and scope, they generally involve restricting the movement of those exposed or potentially exposed to an infectious disease during its period of communicability.

As for Trump’s quarantine order, it is unclear what it would have required: whether it would have affected all three states in their entirety or just partially, mandated that all people in those states stay at home, prohibited all travel into and out of those states, or some combination of these. What is certain, however, is that under current federal law, the president does not have authority to issue a quarantine order that is effectively statewide, including prohibiting all or nearly all travel within a state or into and out of the state. It is also unlikely that Congress could give the president new authority to do so under its Commerce Clause power, which is the basis for the current federal law on quarantine.

As COVID-19 continues to radically change daily life in the United States, it is vital to understand the limits on federal authority over mandatory, statewide quarantines—not only to avoid pitched legal battles between the government, quarantined individuals, and the states, but also to deal with current and future pandemics. Involuntary quarantines are often ineffective at resolving such health crises. Expanding federal power in this area is, as such, unlikely to be an effective health measure, both currently and going forward.

Keywords: COVID-19, pandemics, quarantine law, federalism, commerce clause, executive power

Suggested Citation

Jamshidi, Maryam, The Federal Government Probably Can’t Order Statewide Quarantines (April 20, 2020). University of Chicago Law Review Online, 2020, Available at SSRN: https://ssrn.com/abstract=3581209

Maryam Jamshidi (Contact Author)

University of Colorado Law School ( email )

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