The year 1892, when a cholera outbreak struck New York, provides two vivid examples. 1, 203 (1824). Even though there was no evidence of symptoms of the fever or other disease on board, the court held that a state was justified to keep people out in order to protect the citizens of the state; that to do so did not violate the Constitution. The difference between an isolation and quarantine situation is important. (Source: Official National Guard photo by 1st Lt. Kyle Kilner). Some upper-class passengers protested their detention in the media and to politicians, but no passenger filed a lawsuit challenging the detention. Adam Klein is chairman of the Privacy and Civil Liberties Oversight Board, an independent executive branch agency tasked with ensuring that efforts to protect the nation from terrorism appropriately safeguard privacy and civil liberties. So far, people exposed to the COVID-19 virus have agreed to “self-quarantine,” or voluntarily remain in isolation in consultation with medical authorities. Colonies and, later, states have imposed such measures since the beginning of American history, though they have become less frequent as modern hygiene and medicine have reduced the prevalence of infectious disease. Likewise, violation of federal quarantine orders can result in fines and imprisonment under Title 42 of the U.S. Code. The customer usually asserts some unspecified disability that prevents them from wearing a mask. Since 1973, donor-supported PLF has successfully litigated to enforce the Constitution’s guarantee of individual liberty, with an unmatched track record at the U.S. Supreme Court.
Several basic themes emerge from a survey of the history and law of quarantine in the United States.

In Gibbons v. Ogden , the Supreme Court listed “quarantine laws” and “health laws of every description” as within the reserved police powers of the states, whose legitimate exercise, even when applied to interstate commerce, is not precluded by the Commerce Clause. Consider this. Quarantine laws had never been challenged, but dicta in the Court's opinions since Gibbons v. Ogden in 1824 had recognized them as a justifiable use of state power.

Any person infected, residing in an infected house or even being present in one could be “shut-up” in that house until the authorities chose to lift the quarantine, a tactic reportedly used by China to contain COVID-19 in Hubei province. Under section 361 of the Public Health Service Act, the U.S. Secretary of Health and Human Services has the power to take measures to contain communicable diseases from foreign countries into the United States and between states. The police power grants each state the right to enact laws and measures designed to protect the public’s health, safety ,and welfare. 1900). It explained that “the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. The decision confirmed that the Commerce Clause of the Constitution granted Congress the power to regulate interstate commerce, including the commercial use of navigable waterways. In 1824, Supreme Court Chief Justice John Marshall’s opinion in Gibbons v. Ogden drew a clear line between the federal government and the state governments when it came to regulating activities within and between states. Gibbons v. Ogden (1824) Summary. The bill stated an assignment from Livingston and Fulton to one John R. Livingston, and from him to the complainant, Ogden, of the right to navigate the waters between Elizabethtown, and other places in New Jersey, and the City of New York, and that Gibbons, the defendant below, was in possession of two steamboats, called the Stoudinger and the Bellona, which were actually employed in running between …

A conversation exploring Justice Ruth Bader Ginsburg's legacy as a constitutional icon with two of her former clerks. After independence, coastal states commonly enacted quarantine laws requiring ships’ crews and passengers to remain aboard for a specified period before disembarking. Your support empowers countless Americans to fight back and win, at the same time you safeguard the liberties of everyone.

The second is that courts should review such judgments deferentially, intervening only if they are arbitrary, unreasonable or far beyond what is reasonably necessary: [I]t might be that an acknowledged power of a local community to protect itself against an epidemic threatening the safety of all might be exercised in particular circumstances and in reference to particular persons in such an arbitrary, unreasonable manner, or might go so far beyond what was reasonably required for the safety of the public, as to authorize or compel the courts to interfere for the protection of such persons. [Q]uarantine and health laws…are considered as flowing from the acknowledged power of …

Americans should watch their government officials carefully to make sure they do not exploit this emergency after it ends.
The first formal quarantine law enacted by one of the American colonies followed in 1647, in Massachusetts. State courts have upheld these statutes—imposing additional procedural safeguards in some cases but finding the detentions themselves substantively unproblematic. This federal detention authority was used only once between 1963 and 2011, when our article was published, to detain Andrew Speaker, the Atlanta lawyer who traveled with drug-resistant TB in 2007. The lockdown orders have been necessary to “flatten the curve” of infection, ensuring that hospitals and front-line health care workers are not overwhelmed by a crush of cases. Marshall wrote that quarantine laws “form a portion of that immense mass of legislation which embraces everything within the territory of a State not surrendered to the General Government.”.

In Gibbons v. Ogden, the Supreme Court listed “quarantine laws” and “health laws of every description” as within the reserved police powers of the states, whose legitimate exercise, even when applied to interstate commerce, is not precluded by the Commerce Clause. Second, state and federal laws continue to authorize compulsory quarantine or isolation of disease carriers. Or what rights do individuals retain in border-entry situations? For example, in 1900 courts ruled against the city of San Francisco when it tried to inoculate and then quarantine Chinese residents against the bubonic plague when the courts had doubts that plague conditions existed. Get the National Constitution Center’s weekly roundup of constitutional news and debate. Protecting the public must be paramount; if the government appears to allow some violations of quarantine orders but arbitrarily prohibits others, the people will lose faith in their leaders and fail to heed otherwise justified quarantine orders. In a 1905 case, Jacobson v. Massachusetts, the Supreme Court upheld compulsory vaccination during a smallpox outbreak. Exploring the legal implications of COVID-19 and the public health response, Public Health Law and Policy in the Time of COVID-19, Understanding the Science Behind the Policy: Defining the “New Normal”. [Q]uarantine and health laws…are considered as flowing from the acknowledged power of a State to provide for the health of its citizens.” Because a cardinal command of public health law is to use the least restrictive alternative in the face of health threats, authorities aim for voluntary confinement where possible. Is the government quarantining an individual as a pretext for some other improper reason to hold that individual? In Gibbons, the Court noted that although quarantine laws may affect commerce, they are, by nature, health laws, and thus fall under the authority of state and local governments. This is an unprecedented accomplishment. Federal public health and welfare statutes also give the federal government authority to isolate and quarantine persons with certain diseases, based on an executive order issued by President George W. Bush in 2003. Occasionally, the customer is already in the store and has removed the mask but has to get through the checkout line; these customers, having already shopped and stood on line, some go limp, others get violent or throw the items from their cart onto the floor when they are not allowed to check out — to put their maskless face just a few feet from that of a cashier who’s had to stand in one spot and come into contact with likely hundreds of people all day while making not much more than minimum wage. Governments must also ensure that quarantines or other measures appear equitable and rest on clearly articulated ethical principles—something not always true in the past, as New York’s divergent treatment of steerage and cabin passengers during the 1892 cholera outbreak shows.

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