The Policy Voice

Liliana Polley

Contributing Writer

Pandemics are not new to this nation. Since its founding, the United States has had its fair share of health emergency crises. This country has experienced the loss of billions of American citizens to illnesses like Smallpox (1633), the Spanish Flu (1918), SARS (2002), the Swine Flu, H1N1 (2009), and now, the new “novel” coronavirus or COVID-19. Although the idea of quarantine and shelter-in-place isn’t new either, the most powerful country in the world was not prepared for the pandemic we are facing today.

What went wrong? Who is to blame for the loss of so many lives? And why isn’t the federal government doing more to try to save the American people? Under the Commerce Clause, in matters of public health, the federal government has the right to prevent the spread of a disease. However, according to the Center for Disease Control and Prevention (CDC), state governments, not the federal governments, have most of the power to place people in isolation or quarantine under specific circumstances. It is important to note that in some cases, federal-state officials have overlapping roles: a national emergency is one of those cases.

Furthermore, under the Welfare Clause, Article I, Section VIII, Clause I of the U.S. Constitution, on issues of public health, the federal government has the power and the authority to act on behalf of the American people’s well-being. Unfortunately, Congress has been silent about its powers or how to proceed during the COVID-19 crisis we are facing. In addition, the current administration has not issued a nationwide quarantine or shelter in place order forcing many states to establish such policies to mitigate the spread of the coronavirus. Nevertheless, there are still several states that have not adopted these types of policies, and the government’s failure to impose their power over those states will be catastrophic. The problem with states having most of the power is that some states have decided not to enforce closings, social distancing, quarantine, or shelter in place policies. Thus, how can a pandemic like the one we are experiencing ever be stopped without the coordination of the federal government? While I understand that a nationwide lockdown might not be necessary, a statewide federal quarantine and isolation recommendation or executive order could save thousands, if not millions of lives.

In a country like the United States, the idea of social distancing or sheltering-in-place is not possible for many citizens. Many workers are considered essential; some must work to survive, some are homeless, some lack paid family or sick days, and some feel that the state’s recommendation to shelter in place is a threat to their civil liberties. The latter one is one I cannot sympathize with, and it is hard to comprehend. The reason? My elderly father, a 78-year-old man with a severe heart condition who could potentially die if exposed to COVID-19 thanks to an irresponsible person who wants to enjoy his “civil liberties.” If it is true that we, as Americans, have rights, we also have responsibilities. During a national epidemic crisis, one of those responsibilities is to use the honor system and do whatever we can to help the most vulnerable. In the absence of strong federal government actions during a health crisis emergency, we must exercise these responsibilities. If on the contrary, you decide to exercise your civil liberties right, whether you are ill or not, you might – without knowing it – be killing my father, along with several hundred more Americans.

While a federal mandate might not entirely stop people from gathering with family and friends or wandering the isles of a Walmart, perhaps a cautionary word about social distancing from the federal government might encourage citizens to follow the honor system and help save the lives of those we love. The life you help save could perhaps be one of your loved ones.

A national health emergency such as this one should not be considered merely a state issue, and a federal response federal is required. This crisis is one where we need a strong leader providing guidance and encouragement, sadly, this is not the case. In the absence of a competent leader, it is up to us, to each one of us, to take the lead, to help our neighbors, and to lift each other up. Without a capable government, it is our duty and our responsibility to take charge and do whatever we can to stop this virus.

Please practice self-distancing, stay safe and healthy, and please, please, do not kill my father just because you want to enjoy your “civil liberties.”

By Micki Lee Coleman-Palansky ’20

Contributing Writer 

At 11:59 p.m. on New Year’s Eve people across America countdown the seconds to the New Year. 7,477 miles away from the New York ball drop another ball was about to be dropped in Wuhan, China. On December 31^st, the government in Wuhan confirmed that there were dozens of cases of an unknown virus. On January 11^th, China reported it’s first death. By January 21^th, the United States had confirmed its first case. Two days later, the boarders of Wuhan were cut off by the Chinese authorities. On January 30^th, the World Health Organization declared a global health emergency. [1] What ever happened to a happy New Year?

By March 26^th the United States lead the world in confirmed COVID-19 cases, when exactly a week earlier China reported no new local infections from the previous day. [2] China was successful in combatting COVID-19 by imploring draconian measures. China enforced unprecedented containment and quarantining measures. The government, by the use of phone location and facial recognition data tracked all citizens movements. Anyone who had exposure was sent to designated facilities. Temporary isolation facilities, fever clinics, and fever checkpoints were around every corner. 60 million people were placed under lockdown in one central province of China alone. These measures won China a victory lap around the outbreak. [3] So why can’t the United States, the most capable, robust, strongest pass China in the race?

Americans’ obsession with liberty is the reason it will not win this race. “The Constitution puts few limits on the legal power to protect the nation from epidemic disease. But power without expertise and resources means little.” [4] While there is little expertise on this issue, everyone in America is an expert on personal freedom. We the People of the United States, in Order to form a more perfect Union, establish justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity. When imposing isolation or quarantine orders, there is a liberty interest. There is a loss of liberty, a protected interest. [5] For many Americans, that liberty interest is much stronger than any health interest—it is the same reason why the government cannot get any significant federal gun, environmental, and healthcare reforms passed. America’s liberty interest trumps its’ life interest.

Brady Sluder: “If I get corona, I get corona. At the end of the day, I’m not going to let it stop me from partying.” Concerningly, this was the sentiment of people across America. Herds of people continue to usher themselves into churches, stores, and other clustered areas, despite the federal order to participate in social distancing.[6]

In Gibbons v. Ogden (1824) the Court held that state police powers include quarantine and isolation enforcement, although even before then it had been an assumed power of the state. Later, In 1905, the Supreme Court really addresses the core issue in public health law, which is the right of the state to endanger the individual for the benefit of society, in the case Jacobson v. Massachusetts. Here, the Court flushed out the fundamental difference between public health law and personal care services law or medical law. Medical care law is about the individual. There the worry is about autonomy, informed consent, and most of the modern scholarship tends to come from that direction. Public health law is about the protection of the State, or the protection of the heard.[7]

The language in Jacobson v. Massachusetts parallels the language in the national security issue at hand today. “The Court saw epidemic disease as the same level of threat to the state as invasion by a hostile military force and one that was much more frequent… From an original intent analysis, the power of the states to take decisive action to stop the spread of disease is clear.” However, “Power does not equate to wisdom.”[8]

A national lockdown could not be established by statute, but it could come as an executive order. However, the practical part of a federal lockdown would mean a member of the national guard every 100 square feet, which is difficult in practice and execution.[9] More challenging than these logistics of federal and local enforcement is the likely chance that a national quarantine order would result in some sort of revolt. Many people can tolerate minor restrictions and limitations on their liberty, but once that fine line is crossed, it is hard to turn back. Liberty over life— it is the trend we see time and time again. If Americans refuse to quarantine and the government fears too strongly of the draconian approach of China, the end of this nightmare will remain a distant dream.

[1] Taylor, Derrick B. “A Timeline of the Coronavirus Pandemic.” The New York Times, The New York Times Company, 13 Feb. 2020, http://www.nytimes.com/article/coronavirus-timeline.html.

[2] Ibid.

[3] Cowling, Benjamin J., and Wey Wen Lim. “They’ve Contained the Coronavirus. Here’s How.” The New York Times, The New York Times, 13 Mar. 2020, http://www.nytimes.com/2020/03/13/opinion/coronavirus-best-response.html.

[4] Volokh, Eugene. “The Coronavirus and the Constitution.” Reason, 9 Feb. 2020, reason.com/2020/02/10/the-coronavirus-and-the-constitution/.

[5] “The Constitution and the Coronavirus.” We the People Podcast, The National Constitution Center, 19 Mar. 2020, constitutioncenter.org/interactive-constitution/podcast/the-constitution-and-the-coronavirus.

[6] Brito, Christopher. “Spring Breakers Say Coronavirus Pandemic Won’t Stop Them from Partying.” CBS News, 25 Mar. 2020, http://www.cbsnews.com/news/spring-break-party-coronavirus-pandemic-miami-beaches/.

[7] Ibid.

[8] Volokh, Eugene. “The Coronavirus and the Constitution,” 2020.

[9] “The Constitution and the Coronavirus,” 2020.