Chaos Brews in U.S. With Jumble of Conflicting Emergency Decrees
The limits of who has what emergency powers is being tested by the coronavirus outbreak as states restrict visitors and order residents to stay home — and as President Donald Trump mulls the lifting of precautions over the objections of governors.
Authorities can demand quarantines and the shuttering of businesses, Lawrence Gostin, a professor of public health at Georgetown University, said. That remains in force even if the president decides to urge the lifting of restrictions, as he suggested Tuesday he might do next month.
The president “implies he has legal power to order back to work. Untrue,” Gostin said in a tweet. “Feds have no power to force business to open.”
Trump’s assertion of powers he lacks is only one potential flashpoint exposed in the collision between the pandemic and the U.S. political system. From the White House down to governors and mayors, officials are creating a patchwork of orders restricting commerce, travel and public gatherings. Some of the laws being brought into play date to the early 20th century — long before commercial air travel or the U.S. Centers for Disease Control and Prevention.
Under an order from Florida Governor Ron Desantis, National Guard units are greeting passengers arriving from the New York area and ask where they plan to self-isolate while in Florida. Local sheriffs are also empowered to enforce the order.
What the Sunshine State can’t do is stop flights from coming in.
“Governors have no power to cancel flights or prevent people from going from State X to State Y,” Gostin said. “That would be a federal power.”
The Federal Aviation Administration, which does have power over flights, has given no indication it’s making plans to restrict domestic travel and on Wednesday refused to speculate on the situation. The FAA on Monday acted on a request from Puerto Rico and required incoming passenger flights to land in the capital San Juan so people could be screened for the virus.
Elsewhere, orders to curb the virus will be enforced by local and state police and prosecutors. That means the confusing mix of stay-home, stay-closed or restrict-gatherings orders from governors and mayors throughout the U.S.
While the police will have the authority to arrest violators of state and local restrictions, for the most part they are relying so far on persuasion. It’s the belligerent and the repeat offenders who will risk arrest and fines.
“It’s going to get dicey real fast,” said James Hodge, a law professor at Arizona State University. “This is far too big for everybody to cooperate for extended periods.”
Already, prison authorities around the U.S. are releasing people to lessen crowding in jails and prisons where the virus could spread quickly among a crowded population, according to the Prison Policy Initiative that works to reduce mass incarceration.
City sanitation departments in the U.S. have police units, said Howard Markel, director of the Center for the History of Medicine at the University of Michigan. While they can make arrests, Markel said in an interview, “I don’t know if they will.”
“They carry badges and have all the rights and powers to take you away,” Markel said. For instance, he said, sanitation police arrested “not a small number” of people in San Francisco during the 1918 Spanish flu outbreak for not wearing masks.
The federal CDC said it routinely monitors people arriving at borders and ports of entry for signs of communicable diseases, and can detain passengers and crew needed.
Authorities have “tremendous authority” to trace and isolate virus carriers, based on a “vast body of law” over communicable diseases, some of it dating back to tuberculosis and measles outbreaks in the early part of the 20th century, according to Henry Greenberg, president of the New York State Bar Association and a former general counsel of the state’s health department.
Courts have recognized that governments need to protect the public from health threats. But officials must avoid excesses when they balance those concerns against individual rights, Greenberg said.
Disputes stemming from measles and Ebola outbreaks in recent years offer a glimpse of the legal backlash authorities could face.
A New York state judge in April tossed out an order by state officials banning un-vaccinated children from all public places for 30 days in Rockland County following a measles outbreak. But the judge left intact an order prohibiting the children from entering schools or day care facilities.
In 2014, Kaci Hickox, a nurse, fought demands from two governors that she be quarantined after treating Ebola patients in Africa, before winning her freedom from a judge.
Hickox, who was healthy throughout, later filed suit against New Jersey, where she was isolated in a tent outside a Newark hospital. In a settlement the state agreed to procedural protections to ensure that quarantine only occurs when medically necessary, according to the American Civil Liberties Union that handled the case for her. The judge concluded the government didn’t prove the nurse posed a danger to others.
The rapidly evolving jigsaw of state and local restrictions in response to the novel coronavirus pose “an interesting test,” said Hodge, the Arizona State professor.
Businesses staying open against orders can be controlled by threats to revoke their licenses, or to fine them, he said.
Individuals present judgment calls — would police really want to raid a building to break up a gathering of, say 20 people?
“I would not get mesmerized by the thought that we’re going to see thousands of Americans imprisoned,” Hodge said. Punishment will be reserved for the “truly recalcitrant,” he said.
— With assistance by Alan Levin
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