By Erwin Chemerinsky: Dean and professor of law at the UC Berkeley Law School
The law is clear: the government has broad power in a public health emergency to take the steps needed to stop the spread of a communicable disease. In 1905, the Supreme Court declared: “Upon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.”Some conservative voices are now questioning the legality of stay-at-home orders. One conservative commentator called stay-at-home orders “totalitarian” and cast doubt on their constitutionality. These claims have no basis in law.
There is no right to put the health of others in danger and to act in a way that risks the collapse of our health care system. The government can, if it chooses, impose criminal penalties on those who willfully disobey orders designed to limit the spread of the coronavirus.
This is not a new principle. A few years after the end of the Revolutionary War, Philadelphia was isolated to control the spread of yellow fever. By the time the Constitution was drafted and approved, quarantine was already a well-established form of public health regulation. States, as part of their police power, were deemed to have the authority to order quarantines to prevent the spread of communicable diseases. In 1926, the Supreme Court wrote: “it is well settled that a state, in the exercise of its police power, may establish quarantines against human beings, or animals, or plants.”
In Jacobson v. Massachusetts, in 1905, the court upheld laws requiring compulsory vaccination against smallpox. A challenge was brought to this law on the ground that it interfered with the liberty of people to choose to not be vaccinated and to decide how to protect their own health. The court emphatically rejected this argument and stated: “But 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. There are manifold restraints to which every person is necessarily subject for the common good.”
Every challenge to a compulsory vaccination law, even without exceptions for religious beliefs, has been rejected with courts always upholding the government’s power to protect public health. A person’s liberty does not include the right to injure or endanger others. It long has been recognized that my ability to swing my fist stops at another person’s nose.
Thus, there is no doubt that a state has the authority to impose the restrictions necessary to limit the spread of a communicable disease. State laws give governors and city officials broad authority to deal with public health emergencies.
If the government can quarantine individuals and prevent them from leaving their homes, then it also has the power to do something less restrictive, such as shelter in place requirements. Likewise, the law is clear that the government can close businesses when necessary for the sake of public health. The orders for restaurants, bars and non-essential businesses are thus unquestionably constitutional. I hope that arrests and criminal prosecutions are not needed to enforce these restrictions, but the government has that power if needed.
These enormous powers do restrict freedoms and therefore are not to be lightly undertaken. Courts would step in if the government used this authority when it was not needed or in an unreasonable manner. But under the current circumstances with the spread of coronavirus COVID-19, courts certainly would back up the government’s authority to protect society from “an epidemic of disease which threatens the safety of its members.”
I am discouraged to hear conservatives questioning the government’s authority to take the measures necessary to protect public health. They are not only wrong as a matter of law, but those who advocate disobeying restrictions may be contributing to the spread of disease, deaths and the overburdening of the health care system. I would hope in our deeply politically polarized times that all of us, regardless of ideology, can come together to protect the health of all of us and deal with a pandemic.
Also appeared at Fresnobee.com. Published with permission granted to us by author Prof. Erwin Chemerinsky Dean and Professor of Law at U.C. Berkeley Law school in California