Brion MacClanahan at the Tenth Amendment Center has a good, short article up answering Can the government legally set up a quarantine?
Last week I had several people email me asking if the government could legally establish a quarantine. Was this a violation of the Constitution or the Bill of Rights, particularly when church services were being mentioned as large social gatherings?
The morning I decided to respond, Judge Andrew Napolitano wrote a piece on the issue. His answer: a tepid yes, but only if they followed the proper legal procedures for due process.
He is partly correct, and this issue is, in fact, a think locally, act locally teachable moment.
And now that Donald Trump has issued a state of emergency declaration (unconstitutional) so that billions of unconstitutional dollars can flood the private sector, the legal question seems moot, but is it?
Trump has acknowledged that State governors can probably do a better job than he can to stem the COVID-19 outbreak.
Why? Because of the dirty little secret in American politics. The States ALWAYS have more real power than the general government.
If you want to close down domestic travel, have your State governor shut down State, county, or city owned airports, meaning most of the public commercial hubs in the United States. Florida Governor Ron DeSantis has begged the general government to shut down domestic air travel. This is backwards. DeSantis should just shut it down and then tell the Trump administration to stick it.
At the same time, the State governments can also shut down bars, restaurants, or any other public meeting place. The general government cannot.
It’s called federalism. So long as the law in question does not violate the State constitution, the State government has almost unlimited power. That is not the case with the United States Constitution. It is a grant of power from the States, meaning if the power is not delegated to the general government in clear language, the general government is prohibited from exercising that power.
As James Wilson said in the State House Yard speech in October 1787 (and I paraphrase), the State governments have all powers not prohibited by the State constitutions while the general government has only the powers granted by the United States Constitution.
And he was a firm nationalist.
The States could control this outbreak by any means necessary. This is not to say that some of these methods would not be Draconian–expect the worst. But we have to acknowledge the vast powers of the State governments in such a crisis. Each State is a state, meaning a sovereign political entity.
Perhaps this crisis with quicken our interest in federalism and decentralization. Alabama should watch out for Alabama, not California, and if it wants to exceed the directives of the CDC (or not), it should do so. The same holds true for California or any State in the Union.
Don’t look to Trump and the swamp bandits to save you. Take care of yourself and your family first. Do the best you can to practice good hygiene and exercise social distancing if possible. These are things we should all be doing during cold and flu season anyway. COVID-19 has made us more aware, but perhaps next cold and flu season we will do a better job of not slapping hands.
We’re not the Waterboy.