Until this January, the Federal government had not used its Federal quarantine power since the 1960’s – when the government detained an individual with a suspected case of smallpox. In early 2020, the outbreak of the Coronavirus (Formally COVID-19) has stoked worldwide fear of a pandemic, sent stock markets tumbling, and resulted in quarantines of people entering the United States. Many have asked if it is legal for the government to force people into quarantine, and if so, under what legal basis. As constitutional lawyers, we researched this issue in depth to provide a legal analysis of the basis for these forced quarantines.

The CDC and Federal Law

Section 361 of the Public Health Service Act (42 U.S. Code §264) empowers the Center for Disease Control to take measures to prevent the entry and spread of communicable diseases from foreign countries into the United States, and between the several states. In sum, this act delegated this power from congress and the executive branch, to the CDC. The exercise of this power derives from the “police power” functions of the government – which allows it to take action against an individual for the benefit of society writ large.

Specifically, 42 CFR 70 and 42 CFR 71 authorizes the CDC to detain, medically examine and then release any person arriving in the United States (or traveling between the several states), if they are suspected of carrying any communicable disease. As a result of this grant of authority, the CDC regularly monitors anyone arriving in the U.S. at land border crossings and ports of entry to identify potential signs or symptoms of certain diseases. If alerted by crew members or passengers about a potentially ill person, they will frequently detain that person until an investigation into the cause of illness is complete.

State and Local Laws

The Federal Government also shares police power with the States, that have co-extensive power to protect the “health, safety and welfare” of those people within their borders. As a result, States have laws aimed at preventing the spread of infectious disease through isolation and quarantine. For example, in Ohio, O.R.C 3701.13 states that the “Department of health shall have… ultimate authority in matters of quarantine and isolation.” In fact, O.R.C. 3703.09 provides for the appointment of “quarantine guards” to enforce a quarantine order:

The board of health of a city or general health district may employ as many persons as are necessary to execute its orders and properly guard any house or place containing any person affected with or exposed to a communicable disease declared quarantinable by the board or the department of health. The persons employed shall be sworn in as quarantine guards, shall have police powers, and may use all necessary means to enforce sections 3707.01 to 3707.53, inclusive, of the Revised Code, for the prevention of contagious or infectious disease, or the orders of any board made in pursuance thereof.

To see a complete list of quarantine and isolation Statutes by State, click here.

The Quarantine Process

When the Federal government identifies or suspects a “quarantinable disease”, it starts by issuing a federal isolation or quarantine order. In the case of COVID-19, there was an initial proclamation made by the White House that read in relevant part:

NOW, THEREFORE, I, DONALD J. TRUMP, President of the United States, by the authority vested in me by the Constitution and the laws of the United States of America, including sections 212(f) and 215(a) of the Immigration and Nationality Act (INA), 8 U.S.C. 1182(f) and 1185(a), and section 301 of title 3, United States Code, hereby find that the unrestricted entry into the United States of persons described in section 1 of this proclamation would, except as provided for in section 2 of this proclamation, be detrimental to the interests of the United States, and that their entry should be subject to certain restrictions, limitations, and exceptions.

This order affected two classes of people:

Foreign nationals who have visited China in the past 14 days may not enter the United States.
American citizens, lawful permanent residents, and their families who have been in China in the past 14 days will be allowed to enter the United States, but will be redirected to one of 11 airports to undergo health screening. Depending on their health and travel history, they will have some level of restrictions on their movements for 14 days from the time they left China.

In the event that an individual is detained or isolated beyond this timeframe, the Federal government issues a formal order that provides a rationale for the detention, information on where the individual will be held and the length of the order.

It’s also important to note that the violation of a Federal quarantine order can be punishable as a criminal offense. Large scale isolation and quarantine is relatively rare in U.S. history, with the last widespread use in 1918 during the “Spanish Flu” pandemic.

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