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OPINION: Quarantine and National Lockdown Orders May Not Be Constitutional

“Can they do that?” is on everyone’s lips and fingertips in response to hearing about the federal government and more and more state Governors inching ever closer to a national lockdown in response to COVID-19’s spread

But mass quarantine orders, such as the shelter in place orders  (including New York’s PAUSE orders that have recently-extended been extended through April 15), and President Trump’s most recent “twitter” threat to lock-down NY for 2 weeks and to prevent all of its residents from leaving the state coupled with his threat of a “national lockdown,” all severely test the limit of what is a permissible exercise of “police power” under the US Constitution. 

Fundamentally, citizens have constitutionally-protected rights to enjoy, without unduly burdensome restriction or unwarranted “search and seizure,”  the freedom of travel and interstate commerce within the 50 states.  That means that generally you and your goods and services can’t be stopped at the border by a sister state and prevented from entering. 

Courts have yet to address the issue, and some judges may give government public health officials an initial pass—for now.  But soon, courts will no doubt put the laws to the test, and evaluate the claimed “compelling government interest” to determine if they are the least restrictive way to tamp down the contagion’s threat while still preserving an individual’s God-given, or at least constitutionally-provided, freedoms of interstate travel and commerce.

While the CDC has broad powers to attempt to stop infectious diseases from spreading among the states through forced quarantine, it has never been exercised,  and there is no prevailing law that would allow the federal government to impose a national lockdown as contemplated by President Trump, leaving a vacuum that local public health officials and governors have tried to fill using their own “police powers.”  

Suits are already being considered by the ACLU and similar rights organizations, and courts will be forced to confront whether the federal government or state Governors have the power to infringe on personal liberty, interstate commerce and travel, and the 4th Amendment preventing unlawful searches and seizures, to quarantine or even detain, non-infected individuals inside the US or prevent movement within  and between states.  

After the pandemic and current quarantine crisis subsides in the coming months, and things return to the new “normal,” federal courts all the way up to the US Supreme Court will no doubt be asked to sort out the hodge-podge mess created by local, state and federal attempts to stop the spread of COVID-19 while striking a proper balance between the public health crisis, and  personal liberties protected by the Constitution.

 

About the contributor:

Michael is a renowned national trial attorney and strategist, having successfully tried over 40 civil and federal criminal cases in his career, including in New York, Los Angeles, Chicago, Las Vegas and Miami.  The founding partner of a boutique litigation firm located in New York, Michael and his team represent plaintiffs and defendants  across the country in high-profile matters, including those focused in the areas of financial services, hospitality and retail, sports and sports gaming, employment including #metoo cases, construction and real estate, and general business disputes.  In addition, Michael draws on his being the most recent global head of litigation and employment matters for a publicly-traded Wall Street diversified financial services firm, to advise business clients as their outside general counsel. While in-house, Michael built and led a team of trial lawyers who tried 21 cases in a span of just 4 years, a feat very few lawyers can lay claim to. You can follow Michael on LinkedIn here.

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