Remember the Past: What Can a Governor Do When the Second COVID-19 Surge Comes?

Remember the Past: What Can a Governor Do When the Second COVID-19 Surge Comes?

Back on January 1st we thought that 2020 would bring clarity of vision and foresight. Since then the world has turned upside down; however, long-standing legal precedent of what states can do in times of epidemics and pandemics has not. Many are claiming that it is unlawful for any governmental entity or official, in an effort to reduce COVID-19 infections and deaths, to impose restrictions upon travel, either across state borders or in large crowds within a state.

I disagree.

COVID-19 is not the first, nor will it be the last, pandemic or epidemic to upend the world. It has killed more people in five months than the previous fifty years of epidemics combined. As of June 8, the U.S. has far more confirmed COVID-19 cases and deaths than any other country; indeed, while the U.S. has only 4.25% of the world’s population, in just three months it has almost 30% (over 2 million) of the confirmed cases and 28% (113,000) of the deaths worldwide.

George Santayana once wrote, “[t]hose who cannot remember the past are condemned to repeat it.” His famous words still apply a century later when evaluating how best to confront our current pandemic. The 1918–1919 Spanish Flu pandemic is one of several pandemics that featured multiple, more severe waves of infections than COVID-19. At the time, it was found that nonpharmaceutical interventions such as school closures, cancellation of public gatherings, and shelter-in-place or quarantine measures—when sustained—reduced the number of cases and deaths. In our current pandemic, epidemiological models and scientific testimony predict similar waves to occur throughout the year, especially given the premature lifting of nonpharmaceutical interventions. Almost no state has met the minimum standard of fourteen days of declining cases before reopening. States should take the lessons learned from the experience of the Spanish Flu to heart and exercise more caution before lifting nonpharmaceutical interventions to today’s pandemic.

There are now two critical questions as we enter June: what can the federal government do if it chooses to implement mandatory nonpharmaceutical measures, and can a state’s governor lawfully impose gathering, cross-border, or within-state travel restrictions?

Regarding the first question, Congress delegated power to the Surgeon General to act as “necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession.” Although earlier this year the Centers for Disease Control and Prevention issued a “No Sail” order for cruise ships aimed in part at “[p]reservation of human life [and] preventing the further introduction, transmission, and spread of COVID-19 into and throughout the United States,” it still has not issued a “No Non-Essential Travel” order with similar goals for movement across state borders.

Moving to the second question, given the likelihood of impending surges of infection and no federal action, can a governor legally impose stricter travel and gathering restrictions within her state and at its borders? Yes. First,the President cannot overrule such state action; federal law on communicable diseases cannot supersede state laws addressing diseases like COVID-19. Congress has decreed as such, stating that federal law relating to regulating communicable diseases does not supersede “any provision under State law (including regulations and including provisions established by political subdivisions of States), except to the extent that such a provision conflicts with an exercise of Federal authority under this section or section 266 [time of war] of this title.” No such exercise of federal authority, other than that relating to cruise ships, has been implemented, nor are we in time of war.

Second, since 1886 the Supreme Court has ruled against federal preemption of state quarantine laws in the absence of a conflicting federal law, holding that “the laws of the state on the subject are [presumptively] valid,” so long as states do not act in an unreasonable or arbitrary manner as to rights and liberties, such as the right to interstate travel and the right to exercise one’s religion through in-person mass gatherings.

Federal courts currently deciding challenges to state COVID-19 travel and gathering restrictions rely in part upon the 1905 Supreme Court decision of Jacobson v. Massachusetts which explains that “a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.” The decision later addresses the possibility of restrictions saying:

[I]n every well-ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.

In other words, during an emergency traditional constitutional scrutiny does not apply. Instead, as established by Jacobson and reaffirmed by recent court decisions discussed below, any measures that limit or suspend constitutional rights (1) must have a “real or substantial relation” to the crisis and (2) must not represent “plain, palpable” invasions of clearly protected rights.

One example of federal courts’ reliance on Jacobson can be found in the decisions regarding churches recent challenges to governors’ COVID-19 restrictions on in-person services. They have largely been unsuccessful. Federal judges have generally concluded that the Constitution does not guarantee an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. Said one federal court, “[r]ecognizing that the need to protect the public may trump individual rights during a crisis, the Supreme Court has held that states and municipalities have greater leeway to burden constitutionally protected rights during public emergencies.”

Of greater significance is U.S. Supreme Court Chief Justice John Roberts’ concurrence late Friday night on May 29th. The Court denied an application for injunctive relief brought by a California church challenging state guidelines limiting attendance at places of worship to 25% of the building capacity or a maximum of 100 attendees. Wrote the Chief Justice:

Our Constitution principally entrusts “[t]he safety and the health of the people” to the politically accountable officials of the States “to guard and protect.” Jacobson v. Massachusetts, 197 U.S. 11, 38 (1905). When those officials “undertake[ ] to act in areas fraught with medical and scientific uncertainties,” their latitude “must be especially broad.” Marshall v. United States, 414 U.S. 417, 427 (1974). Where those broad limits are not exceeded, they should not be subject to second-guessing by an “unelected federal judiciary,” which lacks the background, competence, and expertise to assess public health and is not accountable to the people. See Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 545 (1985).

Likewise, businesses have challenged fourteen-day quarantine orders for tourists crossing state borders into the host state on the ground that the orders unlawfully burden a right to interstate travel. These challenges, too, have been unsuccessful in enjoining such orders for two primary reasons: (1) there are no clear, more workable, and less restrictive means for the state to curb COVID-19 cases, and (2) the summertime “threat posed by a modern-day public inclined to migrate to Maine in numbers as high as 20 million over the course of a couple of months, the dearth of treatment modalities in relation to such a swollen population, and the impracticality of stemming the tide through the individualized assessment of persons having already arrived . . . .”

Or as an Oregon federal court held on May 20, “[a]t this stage, this Court is inclined to side with the chorus of other federal courts in pointing to Jacobson and rejecting similar constitutional claims brought by Plaintiffs challenging similar COVID-19 restrictions in other states.”

In sum, we should remember pandemic and legal history when devising 2020 strategies for minimizing COVID-19 related harms. During the Spanish Flu pandemic locations that lifted social distancing mandates too early experienced a second surge of deaths. Currently, many states are lifting nonpharmaceutical restrictions while still experiencing shortages of personal protective equipment and testing kits. This puts their own residents at risk, not to mention neighboring states that are still trying to shelter at home. Additionally, now is not the time for partisan politics. A state’s well-crafted stay-at-home restrictions should lawfully be allowed to continue for as long as its governor and public health officials reasonably deem it necessary. Each state should have the final say for the fundamental protection of its citizens’ public health, safety, and welfare.

In 2020, that is what the law, clear vision, and foresight require.

Jeff Thaler is a professor at the University of Maine School of Law, where he teaches courses on Administrative Law, Renewable Energy Law, and International Climate Change Litigation. His interest in COVID-19 and constitutional issues arose in March when a small Maine island tried to ban visitors coming ashore.

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