It’s an odd time to argue in favor of a national quarantine, given the fact that most states around the country are now beginning to lift stay-at-home orders and allowing most businesses to re-open, albeit under social distancing measures. Still, law professor and former assistant U.S. Attorney Kimberly Wehle isn’t just advocating for the Trump administration to impose a national lockdown, she’s laying out the case for a constitutional infringement of individual rights (which sounds like an oxymoron to me).
During the next pandemic—which is all but inevitable—Washington can and should impose an immediate, nationwide program of contact tracing and mandatory quarantine for infected people. The stunningly low death toll in South Korea (fewer than 300 people), which reported its first coronavirus infection on the same day as the United States, has been credited to the country’s policy of aggressively tracing infected individuals’ recent movements and isolating people they may have come in contact with. This common-sense approach, if executed properly in the U.S., would enable many people to go back to their daily lives—inevitably spurring the economy—while at the same time minimizing the spread of the deadly virus by keeping the highest-risk spreaders at home.
A federal order of this magnitude will sound to some like a step toward tyranny. But the question is whether saving thousands of lives and staving off another Depression are worth the price of finite, albeit substantial, infringements on individual liberties. The Trump administration has resisted such drastic measures, shunting responsibility onto the states, but the power is nevertheless within the executive branch, and it can be imposed without violating the Constitution.
There are several bold assertions there, including the idea that an even more stringent lockdown in the near future could stave off a depression after the stay-at-home orders over the last couple of months have already gutted our economy, but let’s focus on Wehle’s legal argument, which simply isn’t as strong as she makes it out to be.
One reason the federal government can constitutionally infringe on all kinds of individual rights is that sometimes protecting the greater public good requires it. Threatening the president is a felony even though the Constitution guarantees free speech, for example. Nor does the Second Amendment give every civilian an unqualified right to own military-grade weapons.
By the same token, in 1905, the Supreme Court in Jacobson v. Massachusetts upheld a mandatory vaccine law under the Constitution. It held—in a criminal action against a defendant who refused a smallpox vaccination—that a state can constitutionally “require and enforce the vaccination and revaccination of all the inhabitants thereof” notwithstanding the Bill of Rights. Such a law must be reasonable, not arbitrary, and tailored to the government’s interest in preserving public safety. This category of state power is known as the police power, and it means that states can “enact quarantine laws and health laws of every description . . . to protect the public health and the public safety.”
Wehle’s argument seems to be that because the Supreme Court has recognized some limitations on the exercise of Constitutionally-protected rights, that there’s no impediment whatsoever to a president imposing a national quarantine that would impose severe restrictions on virtually all of our rights. That’s absurd. Even in the Jacobson case cited by Wehle, she quotes the majority opinion written by Justice John Marshall Harlan, but leaves out Harlan’s admonition that “”general terms [of restrictions on liberty during health emergencies] should be so limited in their application as not to lead to injustice, oppression or absurd consequence.”
A national quarantine would lead to all three. A national one-size-fits-all policy would inevitably lead to injustice and oppression for some. Trying to enforce such a policy, even if it were upheld by the courts, would also lead to absurd consequences, as Wehle backhandedly acknowledges while promoting the idea of using the military to enforce quarantine measures.
Congress has the constitutional power to raise and support armed forces, without any express limitations, and it can call forth the militia “to execute the laws of the union.” The president, in turn, has the power to “take care that the laws are faithfully executed.” But Congress has long prohibited the federal government from engaging military forces for law enforcement purposes and, for the most part, that law’s exceptions require that there be a specific request or at least cooperation from the states. (The U.S. Coast Guard is an exception to the exception.)
It’s also possible that the current Supreme Court—despite the conservative majority’s apparent sympathies for broad presidential power—might not condone a unified federal response to a pandemic. Constitutional law has evolved substantially since 1905, and the court has never explicitly addressed the propriety of what was known from the 1870s to the early 1900s as “shotgun quarantines,” whereby armed men prevented people infected with yellow fever from entering certain districts. Nor has the court considered the extent to which the federal government could override state and local quarantines as a matter of federalism if Congress were to amend federal laws to give the president more power to protect the nation during pandemics.
In other words, as much as Wehle might claim that the Constitution allows for the president to establish a national quarantine, the courts and Congress have said no such thing. In order for Wehle’s thesis to be true, not only would the judicial and legislative branches have to sign off on a dramatic expansion of presidential power, the American people would have to buy in as well. In the 50-50 nation that we live in today, does that seem likely to you?
Police departments across the country are starting to back away from heavy-handed enforcement of social distancing orders, including mask mandates, in part because every arrest or citation caught on camera becomes a public relations nightmare for the departments. Gov. Mike DeWine originally imposed a mask requirement for all Ohioans, but he too reversed course after a few days, stating his mask order “went too far.”
“It became clear to me that that was just a bridge too far. People were not going to accept the government telling them what to do,” he said on ABC’s “This Week.”
Ironically, Wehle’s written quite a bit over the past few years about her belief that Donald Trump is taking powers that aren’t constitutionally reserved for the executive branch. Last year, the professor even wrote a piece about the impeachment at The Bulwark entitled “King Trump.”
People can fairly debate whether we are in a full-blown “constitutional crisis,” a question that hinges on one’s subjective take on that term. But at least one thing is for sure: The Constitution sets up a structure of checks and balances among the branches of government. Congress—both through its express powers, like impeachment, and its implied powers, like its oversight practices—is legitimately empowered to check abuses by the president.
The president, his lawyer Cipollone, and various Trump spokespeople have argued that Congress is abusing the president by exercising its impeachment prerogative. This claim is not routine, politics-as-usual stuff. It is deeply concerning. If Team Trump wins its all-out assault on executive branch accountability, the Constitution as we know it will be dead. Yet by then, it will be too late to wave the constitutional-crisis flag to any avail.
In just a few months Wehle’s gone from encouraging Congress to check abuses by the president to calling on Congress to empower the president to use the military to enforce a nationwide quarantine, which in itself would be an abuse of the Constitution. Perhaps I’m being a little too cynical, but I can’t help but think that Wehle’s op/ed was written with a President Biden, not President Trump, in mind. It certainly didn’t give much thought to how the American people would react to any attempt to use military force to impose quarantine measures.