Good. Aggressive steps like this are the only way we'll get a handle on what's happening. The alternative is exponential runaway and complete disaster.
Another Seattle resident here... I wonder if we're only a few days away from a Hubei/Italy-style lockdown where you can't go outside except for groceries and pharmaceuticals. Is there precedent for that in American history?
No precedent for it, and a lot of Supreme Court precedent against it. Nonetheless, as an also Seattle resident, it has dramatically changed the city through voluntary behavior of the population. This has been an incredibly destructive blow to everyone in the formerly thriving restaurant and bar industry in the city.
Citation? My understanding is that quarantine powers are well established in law. This isn’t the first epidemic.
Furthermore, the lockdown of the Boston area after the marathon bombings is a very clear and recent precedent relating to a different public safety emergency.
Worse comes to worst, I suspect we’ll see MRAPs on the streets first and any legal fallout, later.
> The C.D.C. rewrote its quarantine guidelines in 2017 and they have never been tested in court. The Supreme Court has also never dealt with an infectious disease quarantine case, [Lawrence O. Gostin, a professor at Georgetown University Law School who specializes in public health law] said.
Freedom of travel, upon which quarantine rests, has been thoroughly adjudicated in diverse public safety contexts. It is unlikely that the court will deviate dramatically in this specific case from centuries of precedent regarding restrictions on travel relating to public safety. The CDC's guidelines may be new but not unprecedented.
The outliers where the courts allowed the kind of special reasoning being proposed here, which has happened on occasion, have almost universally enabled shameful chapters in American history e.g. Japanese internment. Courts are understandably reluctant to allow this kind of expedient violation of Constitutional rights.
“The Court’s postponement of argument sessions in light of public health concerns is not unprecedented. The Court postponed scheduled arguments for October 1918 in response to the Spanish flu epidemic. The Court also shortened its argument calendars in August 1793 and August 1798 in response to yellow fever outbreaks.”
> No precedent for it, and a lot of Supreme Court precedent against it
Could you cite some of that precedent? When I did my research around quarantines, the things I found said that precedent was very thin. What precedent there was typically was extremely deferential to government responses during emergencies and pandemic outbreaks.
I didn't find any SCOTUS cases myself, so I would be very curious to read the SCOTUS precedent against it.
The precedent you are looking for is about the legal principles that limit the extent to which the government can prevent free travel, not quarantine per se. Quarantine must conform to that precedent, being one of many examples where the government may restrict travel. The No Fly List is a modern example of a government policy that violates free travel and has consistently suffered under judicial scrutiny -- it is insufficient for the government to deem someone a threat to public safety to deprive them of fundamental rights. You can no more violate rights because someone "might be a terrorist" than you can violate their rights because someone "might have COVID-19" absent strong and specific evidence. There is much more latitude to limit what people do than where they go or what they say.
Americans have a strong Constitutional right to free movement within the country. As with free speech, suspending that right for an individual requires either due process or specific imminent threat to public safety to withstand judicial scrutiny. That is the calculus. A good test would be "can the government suspend free speech" in this scenario, as similar legal constraints will apply to free travel. That the specific case involves disease quarantine doesn't matter that much, as the Constitution makes no such exception. I don't follow freedom of travel case law closely, I am only aware that loads of it exists and that it is extremely biased in favor of the individual right.
As a related point, in the US most quarantine authority resides with the States, not the Federal government. If the States don't enforce it, there is little the Federal government can do.
> The precedent you are looking for is about the legal principles that limit the extent to which the government can prevent free travel, not quarantine per se. Quarantine must conform to that precedent
As you noted, the highest level of judicial scrutiny for constitutionally protected rights (like the freedom of speech) is strict scrutiny.
That doesn't mean the government is unable to restrict those rights, but it generally means that the Government's regulations must meet the following criteria:
1. is necessary to a "compelling state interest";
2. that the law is "narrowly tailored" to achieving this compelling purpose;
3. and that the law uses the "least restrictive means" to achieve the purpose.
From all the descriptions of precedent around quarantine laws that I've seen, the judiciary was extremely deferential to Government decision making during a bona-fide epidemic.
Given that, I think a reasonable travel regulation to implement a regional quarantine would easily survive such scrutiny.
1. "compelling state interest" - maintaining the public health has long been held to be a compelling state interest.
2. "narrowly tailored" - if the regional quarantine was restricted to bona-fide epidemic outbreaks, and backed up by epidemiological experts, I think the courts will accept this. I think this is the criteria that the drafting will have to be most carefully tailored around.
3. "least restricted means" - I think the Governments have been demonstrating that they have been actively trying all the other less restrictive means, and they haven't been effective.
Based on this, I find it extremely unlikely that a court would rule against a regional lockdown quarantine.
In saying there was significant precedent against it, I was hoping you had something related to epidemiological outbreaks and public health quarantines. I find the argument that the courts have generally been skeptical of travel restriction to be quite unpersuasive. I don't think courts will view this as a "typical" travel restriction, and will give local / state / federal governments a lot of leeway in responding to this kind of an outbreak.
Agreed. Wish people were more responsible and this wouldn't have to happen. Drove by the mall today and would have expected it to be a ghost town, but the parking lots were full and people were still walking and queueing close together.
Full disclosure: I live in Seattle.