The coronavirus pandemic is stressing not only our healthcare systems, but our political and legal systems. The pandemic has challenged our sense of identity in humankind, pitching us back and forth between a spirit of global solidarity and a competition of human tribes for resources and survival. That tension plays out in our political and legal responses to the pandemic, manifesting the natural human temptation to tribalism in both international and international dimensions.
As policymakers struggle to respond to the pandemic and to curb the outbreak of COVID-19, I have been struck by the emergence of interstate tensions in the United States. The pressure of the pandemic, aggravated by a slow and uncertain governmental response at the federal level, has been an brusque reminder that the United States are a plural: a federation of states that famously endeavored “to form a more perfect Union,” but that, like human governance itself, remains a work in progress.
A Tale of Two States
I live in the State of Rhode Island and Providence Plantations, the smallest of the United States with the longest name. I’ve been pleased with the leadership of my Governor, Gina Raimondo. She’s been on TV every day and, to my perception, has responded to the evolving crisis with firm but measured restrictions on people and business. She has acted thoughtfully but decisively in planning for business-not-as-usual, for example, in postponing the state’s primary election from April to June and gearing up the machinery of electronic voting.
Governor Raimondo declared a “disaster emergency” on March 9 (RI EO 20-02). That declaration was mostly procedural in nature. The Governor activated the state emergency management agency and specifically precluded price gouging on emergency supplies. On March 13, Governor Raimondo ordered that anyone arriving in Rhode Island from outside the United States, or arriving in Rhode Island after having been outside the United States in the preceding two weeks, self-quarantine upon arrival in the state for 14 days (RI EO 20-03). That order applied to me; I was in Namibia before I arrived home via Johannesburg, London, and Boston on March 21. On March 16, the Governor closed restaurants and bars to on-premises consumption and limited gatherings to 25 people (RI EO 20-04). Later restrictions limited gatherings to ten (RI EO 20-08, Mar. 22), then five (RI EO 20-14, Mar. 28). She also loosened the state’s open meetings and open records laws to encourage electronic communication and relax response deadlines as necessary to manage the crisis (RI EO 20-05, Mar. 16).
On March 23, Governor Raimondo started to look with some circumspection on the evolving domestic situation in the United States. She extended the requirement of self-quarantine to domestic air arrivals (RI EO 20-10). By that time, The New York Times had described greater New York City as “an epicenter of the coronavirus,” with “roughly 5 percent of global cases” (McKinley, Mar. 22). (Never mind that “epicenter” is not really the right word (Zimmer, Politico, Mar. 28).) In her tenth emergency declaration, on March 26, Governor Raimondo singled out New York for the first time, extending the self-quarantine order specifically to persons arriving from New York State, and those who arrived from New York State in the last 14 days (RI EO 20-12). The order recognized New York State as a “hotspot,” “which has more than 37,000 confirmed cases of COVID-19, close to half of all reported cases in the United States” (id.).
The next day, Friday, March 27, the Governor deployed the State Police and the Rhode Island National Guard to enforce the self-quarantine order against arriving New Yorkers. On northbound interstate highway 95, Rhode Island state troopers directed cars with New York license plates off the highway to the Rhode Island Welcome Center, The Providence Journal reported (Mooney, Mar. 27). “There, a dozen members of the Rhode Island National Guard waited by a Humvee and a white tent to question travelers. Those who said they were just passing through Rhode Island were quickly waved through. Those who said they were staying were asked to give their names and addresses” (id.). The next day, The New York Times reported that “National Guard troops were trudging through [Rhode Island] resort towns with clipboards, knocking on doors. They [and police] were all hunting for fleeing New Yorkers and their telltale Empire State license plates” (Bogel-Burroughs, Mar. 28).
The Times’s characterization of soldiers “hunting for fleeing New Yorkers” proved an attractive storyline for national media (e.g., Gopal & Sullivan, Bloomberg, Mar. 27), and, perhaps predictably, drew criticism. A brief feud broke out between governors. New York Governor Andrew Cuomo threatened to sue over what he described as a “‘reactionary’ and unconstitutional” Rhode Island policy (“N.Y. Gov. Andrew Cuomo Threatens to Sue R.I.,” Providence J., Mar. 28). The governors spoke on the phone on Saturday, March 28, and Raimondo by executive order the same day extended the self-quarantine requirement to all out-of-state arrivals in Rhode Island, whether from New York or elsewhere (RI EO 20-13). According to Politico, “Cuomo suggested the shift was a reprieve for New Yorkers,” while Raimondo pointed to the changing situation: “‘Unfortunately, the rate of infection we’re seeing in New York City—unfortunately, we’re seeing that same rate of infection in other places, Connecticut, New Hampshire, New Jersey, etc.’” (Mahoney & Gerstein, Mar. 29). Of Cuomo, Raimondo said, “‘If he feels it’s important for him to take credit go ahead, I’m going to keep working here to keep Rhode Islanders safe’” (id.). She added, “‘I will say I think it’s odd that Gov. Cuomo is focused on this sort of politics at a time that we’re fighting disasters’” (id.). And with regard to the law, she said, “‘He’s welcome to sue if he likes. I think he would have a very hard time because I’m on firm legal ground’” (id.).
The American Civil Liberties Union (ACLU) shared Cuomo’s uneasiness with Rhode Island policy. In a statement, Rhode Island ACLU Executive Director Stephen Brown said that “[u]nder the Fourth Amendment [to the U.S. Constitution], having a New York state license plate simply does not, and cannot, constitute ‘probable cause’ to allow police to stop a car and interrogate the driver, no matter how laudable the goal of the stop may be” (ACLU Statement, Mar. 26). Brown lauded Raimondo, in sum, for “many steps to address this crisis that carefully balance public health needs and the civil rights of citizens” (id.). But he lamented that the New York policy went a step too far, concurring in Cuomo’s estimation of unconstitutionality. “While the Governor may have the power to suspend some state laws and regulations to address this medical emergency, she cannot suspend the Constitution” (id.).
There is precious little legal precedent for what’s happening now, in the United States and throughout the world, and that’s part of what makes the legal problems arising in the pandemic so compelling. War is the most often invoked analog for emergency governmental powers in time of a public health crisis.
Yet the U.S. Constitution does not afford special powers to the government in time of war, nor suspend civil liberties, short of the extraordinary habeas corpus Suspension Clause “in cases of rebellion or invasion” (art. I, sec. 9, cl. 2). U.S. Chief Justice Roger Taney refused to suspend the writ of habeas corpus for a federal prisoner at the start of the Civil War (Ex parte Merryman, (C.C.D. Md. 1861)), but President Lincoln held the prisoner anyway. The late Chief Justice William H. Rehnquist traced the Constitution’s tenuous protection of civil liberties in wartime from the Civil War to World War II in his 2000 book, All the Laws But One. The title refers to Lincoln’s response to the Taney ruling: “Are all the laws but one to go unexecuted and the government itself go to pieces lest that one be violated?” (U.S. National Park Service (last visited Mar. 30).) In like recognition of practical exigencies, the courts have been willing to construe executive war powers broadly, if not without limitation. Thus, the U.S. Supreme Court permitted the grossly excessive Japanese internment during World War II (Korematsu v. U.S. (1944)), but has insisted on access to civilian courts for military prisoners when the courts are available (Ex parte Milligan (1866) (treason charges during Civil War); Rasul v. Bush (2004) (terrorism charges against enemy combatants captured in Afghanistan)).
The de facto expansion of executive powers in a time of crisis does well characterize the response of the legal system to a public health emergency. The courts recognize that the executive branch of government is better suited to assess rapidly changing circumstances and to respond swiftly. And the political branches of government are, by design, more accountable to the electorate than the judiciary is. No judge wants blame for loss of human life laid at her or his feet. And if a politician is willing to go out on a limb in an emergency, voters will be able to call out any overstep at the next election. Moreover, a public health emergency is, by definition, less prone to political caprice than police suppression of an uprising, or even the outbreak of war. No one is on the virus’s side, and no one wants to be. Thus, even while cautioning Governor Raimondo on the Fourth Amendment, the Rhode Island ACLU was quick to evince appreciation for the fine line the Governor was walking.
When public health authorities responded to the 1918 “Spanish flu” pandemic by prohibiting public gatherings and closing churches and schools, Americans signed on with a patriotic zeal that could be the envy of Chinese communists a century later. It helped that World War I was under way. Patriotism already was the rule of the day, and it was easy to cast the flu alongside the Kaiser, “the Beast of Berlin” (1918), as a tandem threat to the very survival of the republic. In that climate, Americans were accepting of authoritarian measures to respond to unprecedented crisis. Legally, this was the time of the Selective Service Act of 1917, the Espionage Act of 1917, and the Sedition Act of 1918. The U.S. Supreme Court lent its imprimatur to the war effort by authorizing suppression of even feeble resistance to the draft (e.g., Schenck v. U.S. (1919)). One planted a victory garden, purchased government bonds, and refrained from spitting in public, because that’s what Uncle Sam asked of you in a time of war and flu.
Extraordinary legal measures to protect public health also form a vigorous tradition in the ancient history of Western law, whatever the 1789 U.S. Constitution said or didn’t say about it. The legal history of quarantine is often dated to the Eastern Roman Emperor Justinian I, one and the same of Justinian Code fame, who ordered isolation measures in the sixth century to contain the bubonic plague. The Book of Leviticus (ch. 13, passim., 14:8) counseled the quarantine and isolation of lepers at least a thousand years earlier (see also Numbers 5:2, 31:19; 2 Kings 15:5a; 2 Chronicles 26:21), and Western Church leaders followed suit in Justinian’s time. The very word “quarantine” derives from the 14th-century Venetian law holding ships at anchor for 40 (quaranta) days before landing to control the Black Death (e.g., Mayer, Science Friday, 2018). Call it Biblical commandment, civil law, customary law, or common law, the authority to curtail personal freedom to protect the greater good against contagion forms an indelible pattern in the legal tapestry on which Western constitutions are written.
Whether Governor Raimondo was in fact “on firm legal ground” in U.S. law is a question which is not likely to be tested in the courts, and which anyway might not be answerable in a legal context divorced from exigency. The theories underlying challenges hold water, but it is impossible to know how courts would be respond in the context of a genuine public health crisis.
Governor Cuomo seemed to base his objection to Rhode Island’s New York policy in the principle of comity. The Centers for Disease Control (CDC) in the United States locate federal power to respond to a public health emergency in the Commerce Clause of the U.S. Constitution (art. I, sec. 8, cl. 3), and a spate of federal statutes and regulations avail of the opportunity (see CDC, “Specific Laws” (last reviewed Apr. 10, 2019)). (Read more, including the thin recent history of legal quarantine in response to Ebola and measles outbreaks, from Parmet & Sinha, New Engl. J. Med., Mar. 18. Public health laws at the state level are compiled by the National Conference of State Legislatures, State Quarantine and Isolation Statutes (last updated Feb. 27).) Accordingly, commercial restrictions originating in state law invite challenge under “the dormant Commerce Clause” of U.S. constitutional law, the doctrine that preserves federal authority to regulate interstate commerce as against state infringement even in the absence of express or implied preemption. However, Raimondo said that commercial road traffic would not be stopped, minimizing the impact of the Rhode Island policy on interstate commerce.
Restriction simply on the free movement of people across state borders implicates the Comity Clause (“privileges and immunities”) of the U.S. Constitution (art. IV, sec. 2, cl. 1). The Comity Clause offers up murky waters in U.S. constitutional law, but has been read to implicate a right against discrimination based on origin in the freedom to travel between states (Paul v. Virginia (U.S. 1868); see also Saenz v. Roe (U.S. 1999) (part IV)). Significantly located in the Constitution’s structural Article IV, the clause was regarded by the Framers as key to national unity in the constitutional design (e.g., Federalist No. 80 (“basis of the union”)). The notion of New England stormtroopers weeding out New Yorkers smacks of the very conduct that the Comity Clause was designed to preclude. At the same time, the Rhode Island policy is laudable, epidemiologically, for seeking to track disease vectors, and, socially, for seeking to facilitate probably constitutional quarantine regulations.
The ACLU objection meanwhile posited a credible challenge under the Fourth Amendment right against unreasonable searches and seizures, made applicable to state officials by way of the due process clause of the Fourteenth Amendment (sec. 1) (and tangentially, the “privileges or immunities” clause of the Fourteenth Amendment insofar as a Fourth Amendment violation is accomplished with discriminatory intent). Referring to the “probable cause” standard for a warrant to issue under the Fourth Amendment, Brown wrote in the ACLU statement that a New York license plate “does not, and cannot, constitute ‘probable cause’ to allow police to stop a car and interrogate the driver.” A traffic stop might be permissible upon the lesser Fourth Amendment standard of reasonable suspicion to effect search or seizure. Regardless, it is not difficult for police to generate sufficient pretext for a traffic stop. (See generally LaFave, Mich. L. Rev., 2004, pp. 1846-52.)
The Rhode Island policy is problematic under the legal paradigm, because at the time a New Yorker drives into the state, there is not yet even a suspicion that the law has been violated. Rhode Island law enforcement officers also are stopping persons entering the state by plane, train, and bus, and the same is true for those personal stops. Rather than investigating compliance with the law ex post, Rhode Island seeks to extract compliance with the law ex ante by informing drivers of recent regulation and soliciting information that will facilitate later law enforcement. And later non-compliance with the self-quarantine requirement can mean a fine of up to $500 and imprisonment for up to 90 days. Thus, collecting information that may later serve to indict, the Rhode Island policy plants a poisonous tree to later reap its fruit.
Constitutionally, that crosses the line. But does it cross the line so egregiously as to forfeit the buffer of exigency? Again, collecting contact data constitutes sound health policy in response to a rampant contagion. (Immigration officers manually entered my contact information into a database when I landed in Boston, a reasonable measure free of legal complication at a port of entry.) The ACLU might rightly and additionally be concerned that a public health stop, if ruled not poisonous, could yield evidentiary fruit, whether in plain view or upon an incidental search, that inculpates a driver or passenger in an unrelated criminal offense. On balance, the ACLU appropriately faulted Rhode Island’s New York policy for overreach: “a blunderbuss approach that cannot be justified in light of its substantial impact on civil liberties.” The Rhode Island plan might hold up insofar as it seeks to notify travelers of emergency measures. But it crosses into a gray area as it seeks to extract information in circumstances that feel heavily custodial.
At least the churlishness of Rhode Island policy vis-à-vis New Yorkers was diminished by the Governor’s extension of the self-quarantine rule to all out-of-staters. But Rhode Island is alone in neither its interstate circumspection nor its willingness to parse by point of origin. While Hawaii and Alaska availed of their non-contiguous borders to adopt all-air-arrival quarantines (Jones, L.A. Times, Mar. 26), Texas announced a quarantine requirement on air passengers arriving from New York, New Jersey, Connecticut, and New Orleans (Weinberg, Ft. Worth Star-Telegram, Mar. 26). The discriminatory rule does not apply on Texas highways, though that difference matters more for implementation and appearances than for legal analysis. We’re accustomed to authoritarian surveillance in airports, but a stop after an air arrival, when security concerns have abated, is no less a law enforcement stop under the Fourth Amendment.
Leadership from the Top
While the states snip at one another over travel policy, a much more urgent threat to human health looms large in state rivalries over response to the pandemic. Governor Cuomo “warned that states are counter-productively bidding up the prices of critical medical equipment and protective gear as they attempt to amass supplies from manufacturers amid the coronavirus pandemic” (Relman, Bus. Insider, Mar. 23, 2020). Governor Raimondo complained similarly, “Every state is vying for the resources” (Estes, Forbes, Mar. 28). Besides Cuomo and Raimondo, governors and mayors from both sides of the aisle and all over the country have blamed a lack of federal leadership for aggravating interstate strife and stunting the national response to the pandemic (see, e.g., id.).
As early as March 18, President Trump declared himself “a wartime president” (Oprysko & Luthi, Politico, Mar. 18). Skeptics accused Trump of posturing for reelection (e.g., Beinhart, Al Jazeera, Mar. 20). Political motives notwithstanding, a declaration of war might be just the thing America needs to spark a coherent and effective response to the pandemic, and to rally the states to play on the same team.
Despite his declaration, the President has been reluctant to employ the Defense Production Act (50 U.S.C. ch. 55), a Cold War-era law that would allow the White House to mobilize industry in support of medical-supply production. Such a coordinated effort could abate the presently unfolding calamity of interstate competition for resources. A war footing would provide a framework familiar to the law and legal tradition, allowing for exaggeration of executive and legislative powers at the national level. The federal government could more effectively implement nationwide health policy that would protect both people and the economy, as politicians purport to desire. Even while constrained by the Commerce Clause, a war approach would broaden the permissible space for nationwide social policy, allowing federal lawmakers to step in, set standards, and alleviate interstate strife in only indirectly commercial areas, such as personal interstate travel. The courts would afford latitude for a federal executive and legislature united against a universally recognized enemy that is willing to attack Americans regardless of their political persuasion.
We have precious little legal precedent for pandemic. But we have precedent for war. That’s the legal arsenal we might ought now consult if we hope “to flatten the curve” in the United States, and, doubtless, elsewhere in the Western legal tradition.