As a handful of major metropolitan cities and states begin issuing shelter-in-place orders and possible future quarantine we are left asking ourselves questions such as, “Is it legal for me to go outside anymore?” “The airports are still open, can I fly?” “Will I get arrested for walking my dog?” That last question might sound a little ridiculous, but during an unprecedented time, with local officials issuing different statements around the country, its difficult to discern real news from fear-mongering.
What is definitely not fake is the power of the federal and state government to issue orders such as state-of-emergency, containment zones, shelter-in-place, and quarantines. Up to this point, each state is handling its school closures, group restrictions, and lockdowns at its individual discretion. But can the state or government quarantine a person, area, or the entire country against their will? The answer to that question is a murky “yes.” The federal government has the authority to issue isolation and quarantine orders, both locally and federally, form the Commerce Clause of the US Constitution.
However, it is extremely unlikely for a federal quarantine to be issued (to this reader’s knowledge the last federal quarantine was ordered during the Spanish Flu pandemic of 1918), and local quarantine is typically handled by the individual state. The CDC is the primary arm of the federal government tasked with issuing federal quarantine and managing quarantine directives for individuals entering the US from abroad. The CDC has the power to detain, medically examine, and release individuals arriving to the US via air, ground, and sea.
While the constitution prohibits state and federal government from denying anyone “life and liberty without due process of law” If you’re ordered to quarantine you do not necessarily have the right to just leave your house and go about endangering the lives of others. As seen in a few cases where individuals have refused to self-quarantine after testing positive for the coronavirus, there has been some degree of police intervention. Generally, if you are quarantined you do not have the right the leave, but you do have the right to demand some form of adjudicative process to justify the quarantine. T
To put this into different terms, take an individual who is extremely mentally ill and poses a clear threat to those around him or her. Cases such as these have occurred in nearly all states and have resulted in some degree of quarantine and isolation against the will of the mentally unstable person. While quarantine due to coronavirus is different from this example in regards to the illness, from a legal standpoint it is similar. In fact, in the case of mental illness, the degree of illness and risk to the public is likely harder to prove in a court of law versus the diagnoses of Covid-19, which is simply either positive or negative, with the risk to the public obvious.
Outside of individuals entering the US from abroad, the power of the federal government to quarantine individuals is fairly limited. The federal government can issue a nationwide quarantine, but the enforcement of that quarantine will likely still fall to local authorities. If this occurs an individual’s rights will be similar to what was described above, but fines and jail time for breaking quarantine may be more severe. Furthermore, federal authorities would mainly be involved if an individual is trying to cross state lines versus travel within the state, which would still fall to local authorities.
So can I leave the house or fly during a shelter in place? What about when quarantined after testing positive for coronavirus? What about walking my dog?!
Under shelter-in-place orders there is no hard and fast rule against going on a walk, playing at a park, etc. People should be able to leave their house for essential items such as groceries and medical care. Also, at the time of writing this, there have been no arrests or charges for flying if your state is under a shelter-in-place unless you have tested positive for coronavirus and have been ordered to self-quarantine. However, it does seem that the local authorities have the power to detain you under a shelter-in-place order if they see fit.
If a quarantine order is placed on a state or geographic area the likelihood of police intervention against nonessential personnel trying to fly may increase. This is an ongoing situation and its effect on the law will unfold over time.
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