COVID-19 AND THE CONSTITUTION: What Government Can and Should Do

COVID-19The world-wide spread of COVID-19 (Novel Coronavirus) presents us all with rather interesting questions about the power and role of federal and state government. COVID-19 is the illness caused by a virus strain that began spreading in people in December 2019 in Wuhan, Hubei Province, China. It is not the same as the coronaviruses which arise seasonally and cause mild symptoms, such as the common cold. Coronaviruses are a large family of viruses that are common in both humans and animals. There are currently seven strains of human coronaviruses that have been identified. Four of these strains are common and found in the U.S. and elsewhere around the world. These common human coronaviruses typically cause a mild to moderate respiratory illness. Sometimes, new coronaviruses emerge, and COVID-19 is one of them.

According to the Wisconsin Department of Health Services, the main way COVID-19 is spread to others is when an infected person coughs or sneezes. This is similar to how influenza is spread. The virus is found in droplets from the throat and nose. When someone coughs or sneezes, other people near them can breathe in those droplets. As a result, the Centers of Disease Control (CDC) originally urged halting gatherings of 50 people or more. Consequently, church services, schools, sporting events, and concerts are cancelling, along with other events which involve a large gathering of people. Most of these cancellations are for the balance of the month of March, as Dr. Anthony Fauci, the federal government’s top infectious disease expert, said that a 14-day national shutdown should be sufficient to prevent the virus’s spread.

As of the moment this article was penned, the worldwide outbreak has sickened 235,166 people and left 9,774 dead. This seems insignificant when compared with the 45 million infections and more than 650,000 deaths each year from the common influenza. However, the goal is to nip the new virus in the bud until a vaccine is developed. GeoVax, a U.S.-based pharmaceutical company, and BravoVax, a China-based pharmaceutical company, have announced they are close to developing a coronavirus cure in the form of vaccine based on the former’s MVA-VLP vaccine platform.

State and municipal governments in Illinois, Washington, and New York originally announced plans to close bars, restaurants and clubs. Other states, including Wisconsin, have followed suit. Washington state Gov. Jay Inslee (D) said late Sunday he will sign a statewide emergency proclamation mandating the order, which will also ban any gatherings of 50 or more people. Many are wondering whether and when the government will close private companies where employees gather, and whether they have the authority to do that in the U.S. Up to now, the CDC has only recommended strategies for private employers, including:

  • Actively encourage sick employees to stay home.
  • Separate sick employees.
  • Emphasize staying home when sick, respiratory etiquette and hand hygiene by all employees.
  • Perform routine environmental cleaning.
  • Advise employees before traveling to take certain steps.
  • Additional Measures in Response to Currently Occurring Sporadic Importations of the COVID-19:
    • Employees who are well but who have a sick family member at home with COVID-19 should notify their supervisor and refer to CDC guidance for how to conduct a risk assessment of their potential exposure.
    • If an employee is confirmed to have COVID-19, employers should inform fellow employees of their possible exposure to COVID-19 in the workplace but maintain confidentiality as required by the Americans with Disabilities Act (ADA). Employees exposed to a co-worker with confirmed COVID-19 should refer to CDC guidance for how to conduct a risk assessment of their potential exposure.

COVID-19 government constitutionThere is talk about further shutdown of companies and small businesses across the country. This raises the question of whether the government has the authority to shut down a company and effectively put them out of business in conditions such as these. Every state, the District of Columbia and most territories have laws authorizing quarantine and isolation, usually through the state’s health authority. The laws in all 50 states granting the government authority regarding quarantine and isolation can be found HERE. However, the U.S. Constitution places fairly strict limits on the federal government’s power to quarantine individuals within a single state — though these limits do not apply to state officials. And the Constitution prohibits both federal and state governments from denying anyone “life, liberty, or property, without due process of law.” However, the details and limits of “due process” in the contest of quarantines is not very well defined. If and when the federal government steps in to require severe and painful actions on the part of small businesses, there is likely to be a lengthy period of legal chaos where lawsuits are filed and judges across the country try to make sense of existing precedents — often reaching contradictory results in the process — until the Supreme Court steps in to hand down a nationwide rule.

In 1944, the U.S. Supreme Court ruled in the Korematsu v. United States deciding that the federal government had the right as a military necessity to mandate that Japanese Americans leave their homes and jobs and be sent to internment camps. Over 117,000 Japanese were ultimately forced to leave their homes out of a national fear over subversion in the wake of the attack on Pearl Harbor. In June 2018, the U.S. Supreme Court in Hawaii v. Trump upheld President Trump’s travel restrictions against five majority-Muslim countries — Iran, Libya, Somalia, Syria, and Yemen. The decision officially overturned the Korematsu decision for the first time. Any legal challenge to a government decision telling a store or business owner that he or she is required to close her doors for the good of the public health will likely be decided in favor of the government.

On March 18, Detroit’s three automakers all closed due to employee fears about the coronavirus. Fiat Chrysler shut its doors indefinitely in the Motor City, while Ford and General motors closed all their North American factories through March 30. On the same day, President Trump announced he was invoking the Defense Production Act­—an obscure wartime law which gives the government more ability to direct industrial production of certain items (including medicine and medical supplies) during emergencies. It allows the federal government to accept and prioritize contracts for services and materials deemed necessary to national defense, gives the President authority to create incentives for industry to produce critical materials, and allows the government to abrogate agreements with private industry and halt foreign corporate mergers that would threaten national security. It also authorizes “the diversion of certain materials and facilities from ordinary use to national defense purposes, when national defense needs cannot otherwise be satisfied in a timely fashion.” President Obama had used the same power in 2011 requiring telecom companies like AT&T and Verizon to divulge where they get their network hardware and software to combat potential cyber-espionage.

Governments have expansive emergency powers when it comes to public health. The government’s power to quarantine actually lies with the CDC, but that organization does not have the kind of mechanisms in place to effect a sanitary quarantine of an entire American city, yet alone to enforce an order to close businesses with more than a certain number of employees. The U.S. military might be the most obvious government body tasked with using government’s “police power” to enforce such drastic measures, but statutes and long-standing constitutional norms weigh against calling up an army to enforce such measures. The concept of the state’s “police power” was adopted in early colonial America from English common law mandating a limitation on individual rights when needed for the preservation of the common good. It was one of the powers reserved by the states with the adoption of the federal Constitution and was limited only by the Constitution’s Supremacy Clause—which mandates preeminence of federal law in matters delegated to the federal government—and the individual rights protected in the subsequent Amendments. The application of police power has traditionally implied a capacity to (1) promote the public health, morals, or safety, and the general well-being of the community; (2) enact and enforce laws for the promotion of the general welfare; (3) regulate private rights in the public interest; and (4) extend measures to all great public needs. The courts have consequently held that states must demonstrate that public health actions are intended to further public health objectives in order to avoid criminal law constitutional limitations. Challenging any such extreme measures would likely involve an argument that the action is for more extreme than is necessary to fight COVID-19 and keep the virus from spreading.

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Gary L. Wickert
Partner

Gary L. Wickert is an insurance trial lawyer and partner with the law firm of Matthiesen, Wickert & Lehrer, S.C. Gary has nearly four decades of litigation experience and is regarded as one of the world’s leading experts on insurance subrogation. He is the author of several subrogation books and legal treatises and a national and international speaker and lecturer on subrogation and motivational topics.