In the midst of the coronavirus, or COVID-19, pandemic, new terminology has been thrown at us on a daily basis: Stay-at-home. Safer-at-home. Shelter-in-place. Lockdown. Martial Law.
These terms, which have become commonplace, refer to government measures intended to compel residents to stay in their homes and limit movement as COVID-19 spreads across the globe.
But, do they all mean the same thing? The short answer is no. Let’s take them one at a time.
The Stay at Home order calls for just that — staying at home.
It requires everyone living in the city, county or state to limit travel outside the home only to essential activities and for outdoor exercise. That raises the question of what qualifies as essential activities. The answer varies between jurisdictions. In California, for example, essential services include convenience stores, laundromats, and take-out restaurants. In France, wine stores are considered essential, and in Italy newsstands remain open. Nonetheless, even the most restrictive stay-at-home orders allow banks, gas stations, pharmacies, and grocery stores to remain open.
Safer-at-Home orders are very similar to Stay-at-Home orders. Residents are required to stay at home as much as possible. However, non-essential businesses may remain open so long as they self-police when it comes to social distancing.
Shelter-in-place orders are more restrictive. These measures close all nonessential businesses, prohibit their employees from leaving their homes to work, and have the potential for fines or imprisonment if violated. However, the definition of “nonessential” may vary depending on the specifics of the order. Shelter-in-place orders are traditionally used by local officials in response to natural or environmental threats, like a tornado or a chemical spill.
In recent weeks, state and local officials have retooled the measure to help limit the spread of COVID-19 by mandating residents stay in their homes and limit travel to essential trips. Some shelter-in place orders have provisions permitting residents to walk or exercise outside in public spaces, so long as they stay 6 feet away from others.
On Thursday, Broward County Administrator, Bertha Henry, issued a Shelter-in-Place order closing all non-essential businesses.
A lockdown is a much stricter order, which could involve not being able to leave a certain area at all, or having a curfew. Lockdowns are most often utilized in response to something like an active shooter.
Italy has instituted a lockdown whereby people are allowed to leave their homes for essentials, but there is a 6 p.m. curfew in place. In Spain, a lockdown means that people caught leaving their homes without a valid reason were fined or arrested. Other lockdowns include travel restrictions. Some countries are banning visitors from countries with a high number of cases of COVID-19.
In the U.S., no state or municipality has instituted a lockdown as yet.
The most extreme measure that the Government may take in this situation is called “Martial Law.” Martial Law is a rare measure whereby military authority replaces civil rule to control a society during war or periods of civil unrest or chaos. Certain civil liberties may be suspended, such as the right to be free from unreasonable searches and seizures, freedom of association, freedom of movement, as well as the writ of habeas corpus (the right to a trial before imprisonment).
In the U.S., Martial law has been instituted on the national level only once, during the Civil War, and on a regional level only once, during World War II. Otherwise, it has been limited to the states. Uprisings, political protests, labor strikes, and riots have, at various times, caused several state governors to declare some measure of martial law.
Martial law can be declared by both the president and by Congress. However, Congress has never solely imposed it. The governor of a state may also declare martial law if it is included in that state’s constitution.
Fortunately, the U.S. is not expected to enact Martial law anytime soon. On Monday, Florida Senator Marco Rubio tweeted, requesting everyone stop sharing misinformation about the use of martial law to maintain stability in this ongoing crisis. Senator Rubio couldn’t be more right.
Is this Constitutional?
You may be wondering how the U.S. government has the power to enact any of these drastic measures. Such concerns are perfectly understandable.
The Contracts Clause of the Constitution prohibits the states from interfering with lawful contracts, such as leases and employment agreements. And the Due Process Clause of the Fourteenth Amendment prohibits the states from interfering with life, liberty or property without a trial at which the state must prove fault. The Takings Clause of the Fifth Amendment requires just compensation when the state meaningfully interferes with an owner’s chosen lawful use of his property. Taken together, these clauses clearly reveal the significant protections afforded by the Constitution as to private property.
Yet, in the face of this pandemic, mayors and governors across the U.S. have issued orders closing thousands of businesses, including most retail establishments, and putting more than 3 million people out of work. So – are we in a constitutional crisis?
No, not really. The 10th Amendment reserves to the states broad police power to regulate behavior and enforce order within their territory in order to protect the health, safety, and general welfare of their inhabitants. Significantly, the Supreme Court has held that states can invoke such authority—within reason—to respond to a health crisis.
In 1905, writing for the 7-2 majority in Jacobson v. Massachusetts, Justice John Marshall Harlan wrote “a community has the right to protect itself against an epidemic of disease which threatens the safety of its members,” and a state can subject its inhabitants “to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.”
Thus, governors, mayors, and county executives may use their police power to restrict large public gatherings, enact quarantines, and take other prophylactic measures to suppress the transmission of COVID-19.
The question is: how restrictive?
Does the Federal Government Have the Power to enact a National Quarantine?
Short answer – possibly.
The federal government derives its constitutional authority to quarantine people from the Commerce Clause, which gives Congress the power “to regulate Commerce with foreign Nations, and among the several States.” In 1944, Congress passed the Public Health Service Act, which gave the executive branch power to enforce quarantines.
Notably, on January 31, 2020, Health and Human Services Secretary Alex Azar declared a public health emergency. This allows the federal government to step in to manage disease whenever the director of the CDC “determines that the measures taken by health authorities of any State or possession . . . are insufficient to prevent the spread of any of the communicable diseases from such State or possession.” Additionally, the regulations state that the CDC director may, when acting under an executive order, “authorize the apprehension, medical examination, quarantine, isolation, or conditional release” of those who are “reasonably believed to be infected” and moving from state to state.
In plain English this means that the federal government may quarantine anyone who is reasonably believed to be infected with a communicable disease
But what about the Due Process Clause, which forbids the government from depriving individuals of liberty—including the freedom of movement—without some form of notice and process? The regulations set forth the “process” that the federal government must follow in issuing a quarantine order, which includes that it provides “an explanation of the factual basis” for the order. Additionally, an individual maintains the rights to habeas review, medical review, and to ask a federal court to review the order.
At the end of the day, it’s not at all certain how this would apply to large groups of people. Under the law, there is no explicit statutory authority for a blanket federal interstate quarantine, only for the isolation of individual people deemed infected. If there is a federally mandated quarantine in the U.S., these battles will end up in the courts. Even so, a federal court might be reluctant to second-guess public health authorities in the face of a national crisis.