As the weeks and potentially months unfold, individuals and businesses affected by containment efforts and shelter-in-place orders might consider going to court to seek to have them lifted or relaxed. That might be perceived as a selfish act. In fact, it could be a positive development.
Even in the midst of what is undoubtedly an emergency, government action is subject to scrutiny and intervention by the courts. Constitutionally protected civil liberties are not absolute. In times of crisis, just as in routine times, courts balance individual rights against collective needs. The balancing mandated by our Constitution demands that leaders communicate not only the purpose of their actions — which is breathtakingly compelling in this crisis — but also how the unprecedented public health orders they have issued will further a rational, evidence-based plan to achieve that goal. A constitutional challenge might be an appropriate and necessary step in developing a sustainable, long-term strategy that abides by the rule of law.
The Supreme Court has not decided a case directly addressing the scope of quarantine authority, but Jacobson v. Massachusetts, a 1905 case in which the court upheld a mandatory vaccination law adopted in the midst of a smallpox outbreak, provides some guidance. The court noted that compulsory public health measures must be based on the “necessity of the case” and may not be exercised in “an arbitrary, unreasonable manner” or go “beyond what is reasonably required for the safety of the public.”
The federal courts last reviewed a geographic quarantine more than a century ago, when San Francisco and other local governments imposed sanitary cordons around Chinese American neighborhoods during an outbreak of bubonic plague. A resident and business owner in a quarantined district in San Francisco sued in federal district court, asking officials to “show cause” for why the quarantine should not be lifted.
Judge William Morrow assured authorities that he would “give the widest discretion” to actions taken “in the presence of a great calamity.” But he also affirmed his constitutional responsibility to review government intrusions upon civil liberties. “Is the regulation in this case a reasonable one?” he asked. “Is it a proper regulation, directed to accomplish the purpose that appears to have been in view? That is a question for this court to determine.”
A little more than two weeks after it went into effect, Morrow ruled that a quarantine “thrown around the entire district” was “unreasonable, unjust, and oppressive.” He examined authorities’ evidence, noting that infections had been detected only in some parts of the quarantined area. He also pointed to the discriminatory way in which the restrictions were executed against people of Chinese descent. The judge issued an injunction lifting the general quarantine of the whole district, but permitting health authorities “to maintain a quarantine around such places as it may have reason to believe are infected.”
If individuals or businesses affected by long-term interventions to combat the pandemic choose to sue, the courts would not be limited to an all-or-nothing approach. Judicial orders could require authorities to demonstrate that they are implementing public health surveillance measures to determine which areas are affected by significant community transmission and will, in due course, implement widespread testing and surveillance to tailor the timing, geographic scope and severity of public health restrictions so as to maximize benefits while minimizing harms.
In a challenge brought by individuals seeking the right to move freely outside their homes, authorities would need to justify wholesale restrictions in the absence of the case-by-case risk assessment and procedural protections typically required to quarantine a person believed to have been exposed. Though some restrictions (such as bans on gatherings of a specified size) might be permissible in theory, enforcement on the ground could be highly problematic. Even in the absence of prohibited discrimination based on race or ethnicity, a plaintiff could claim that spotty police enforcement was arbitrary and capricious.
Businesses that have been ordered to close could also bring suit. Some states have closed places where crowds tend to gather (such as movie theaters, indoor shopping malls and gyms), while others have closed all non-essential businesses. Businesses could argue that orders to close on uncrowded shops where customers may maintain physical distance are arbitrary and not grounded in evidence about how coronavirus is transmitted.
For restrictions on liberty to be reasonable, necessary and carefully tailored — as required by our Constitution — health authorities must systematically assess the degree of community transmission at the local level. If our leaders do not articulate a timeline for periodic reassessment, the criteria they will use to ease restrictions and how they are using this pause to act swiftly, decisively and collaboratively on a long-term solution, then community-minded citizens may rightly call on the judiciary to hold them accountable.