Everyone agrees that states have broad internal police power to take action to stop the spread of a public health crisis. You know, kind of like the federal government has power to stop the security and health crisis at our border, yet failed to act upon it for over a year. But are there no limits whatsoever to these internal powers? Can any governor or county executive simply flick his pen and shut every business even if it doesn’t create crowds? Can they unilaterally restrict every aspect of the Bill of Rights indefinitely without any oversight, due process, benchmarks, or transparency?
In Jacobson v. Massachusetts (1905), the Supreme Court ruled, “It is within the police power of a State to enact a compulsory vaccination law, and it is for the legislature, and not for the courts, to determine.” It therefore held that the state’s mandatory vaccine against smallpox was within its constitutional authority. This built upon the established concept alluded to in the landmark Gibbons v. Ogden (1824) case that “reasonable regulations established directly by legislative enactment as will protect the public health and the public safety.”
However, that same court made it clear that there is a point where states can enact policies in “such an arbitrary, unreasonable manner, or might go so far beyond what was reasonably required for the safety of the public” that they would be outside constitutional bounds.
A vaccine is a onetime action that helps an entire community. But what about governors and mayors holding press conferences every day trying to outdo each other with broad, arbitrary, and indefinite restrictions on people’s movement outside their homes with few exceptions, even when they never tested positive for the virus? Traditionally, our quarantine laws throughout history were targeted to those who had the disease or to those aliens or even Americans landing at a port of entry, not applied against an entire state.
It is true that in Compagnie Francaise de Navigation a Vapeur v. Louisiana State Board of Health (1902), the Supreme Court sided with a Louisiana quarantine law barring even healthy people from entering the ports of an infected part of the state. However, even there it was not a shelter-in-place law against every single citizen already residing in the state; rather, it walled off certain parts of the state from new entrants, primarily foreign nationals, disembarking from ships.
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Horowitz: Is this quarantine or tyranny?
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Wed Apr 01, 2020 1:03 pm
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