The spread of the new coronavirus across the U.S. raises important constitutional questions. Measures to combat a virus presents questions of federalism—do the states or the national government have authority to act and, if so, how?
It also raises issues of public health and safety versus individual rights.
Were the national or a state government to act to mandate vaccines or a quarantine, would an individual be able to prevail in a claim a violation of the Constitution? In the case of the federal government more likely the answer is yes; in the case of a state, less likely.
Health Issues Versus Public Security
Public health issues are distinct from public security issues implicated by events such as the Sept. 11 terrorist attacks. In the case of the latter, concerns of future or recurrent military or terrorist activity against the U.S. may be viewed as criminal or national defense issues and treated as such under rules that address criminal due process rights or the scope of American military authority.
In the case of the spread of a virus or other public health issue, individuals who are ill are not criminal defendants or military combatants. Nonetheless, because they might be able to infect others, they pose a threat of harm to others.
Individuals seriously ill with easily transmitted diseases or viruses such as tuberculosis, influenza, measles, mumps, or small pox, for example, can threaten the health and safety of others. If they are left to move about freely, they could infect others, jeopardizing others.
Additionally, what if some individuals fail to take certain precautions, such as take vaccinations, and they therefore risk transmitting certain illnesses to others—what can be done?
Usually Left to the States
Typically, questions of public health in America are typically matters for states to address.
States possess something called the “police power.” The police power is the authority of a state government to enact laws to protect the health, safety, welfare, and morals of its residents. The police power is the basic authority of states to enact criminal and public health measures. The U.S. Supreme Court has ruled that the police power is an inherent power of states, but that it is not a power given to the federal government by the U.S. Constitution.
For the federal government to step in, it must primarily rely on the Constitution’s Commerce Clause to directly regulate health matters. This clause was used by the federal government to ban discrimination in public accommodations across the county. Today, it is generally agreed that if an activity can be shown to impact interstate commerce, then the federal government may act.
Surely, as we see now, a pandemic can impact interstate commerce and presumably Congress should be able to step in and act.
Power of Congress
Yet the Supreme Court in 2012 in National Federation of Independent Businesses v. Sebelius struck down as unconstitutional the individual mandate to buy health insurance under the Affordable Care Act (Obamacare), raising questions about what Congress may do to regulate public health under this clause.
What needs to be shown is how a public health crisis, such as Covid-19, impacts interstate commerce. Lacking that showing, federal public health mandates are likely unconstitutional.
However, in the Sebelius case, the court did uphold the individual mandate under a different part of the Constitution. It was the General Welfare Clause in Article I, Section 8, Clause 1. This clause empowers Congress to raise money and spend it for the general welfare.
Congress may be able to use this clause to provide for lots of money to address public health issues, but its authority here may still be far more limited than what states have under the police power authority. It is unlikely there is federal authority to mandate vaccines or a quarantine.
Limited State Power
Protecting the public health is still primarily a matter of state authority and while they have a lot of power, it is not unlimited.
Four cases clarify how the Constitution addresses public health measures. The first, Jacobson v. Commonwealth of Massachusetts (1905), examines the constitutionality of state mandatory vaccination laws. The court upheld the law, finding they did not violate any personal liberty interests or rights. But this case dealt with a state law, not federal, and it is not clear that the national government could mandate vaccines any more than it could compel the purchase of health insurance.
The second case, Jew Ho v. Williamson (N.D. CA 1900), looks at the constitutionality of a state quarantine law. What makes the case fascinating is that the claims in this case were that the arguments in favor of a tuberculosis quarantine law were challenged on two grounds. One, there was no detected tuberculosis among a specific group of people within a particular area. Second, the claims that there was an infectious disease outbreak that necessitated a quarantine was a pretext to discriminate against Chinese-Americans.
The case is important for discussing how laws may be used to classify a group of people to be targeted by public health laws and how the courts will approach these laws. In general, while wide deference will be given to their constitutional validity, the courts will still police them to ensure that states do not exceed their authority.
In O’Connor v. Donaldson (1975), the Supreme Court ruled that a person involuntarily committed to a state mental hospital because he was adjudicated to be mentally ill was unconstitutional. The court ruled that the loss of liberty was a protected constitutional interest and that merely being mentally ill was not a ground to involuntarily deprive someone of their liberty. There had to be a showing that the person posed a threat to himself or others.
O’Connor is important because it suggests that merely being ill may not justify quarantining someone; you have to show how that person poses a danger to self or others.
Finally, in Best v. Bellevue (July 2, 2003 S.D.N.Y.), a federal court had to decide if the state of New York followed appropriate procedures in quarantining a person with tuberculosis. The court discussed how one cannot simply pick up and detain a person. There must be some due process or hearing according to established procedures before the government can involuntarily detain and quarantine an individual.
Overall, these cases suggest that there are important limits on the ability of the U.S. and state (and local) governments when it comes to some types of public health action. Mandatory vaccinations or quarantines may be constitutionally permissible, but there will be a significant burden on the government to show real harm. And in the case of quarantines, one is afforded due process and a hearing to challenge the decision.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
David Schultz is Hamline University professor of political science and legal studies and a professor of law at the University of Minnesota and University of Saint Thomas. He teaches both health care policy and constitutional law and is the author of more than 35 books and 200 articles on various aspects of politics, policy, and law.