Benjamin Franklin once said, "Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.”  But what would Franklin have given up to secure a lot of permanent safety—stopping a sometimes lethal microbe that has already killed thousands of Americans?  Like so much else in our world during these trying times, his maxim now faces a harsh test from COVID-19.

To save lives, all but a few states have already imposed aggressive measures almost never utilized outside wartime.  As the death toll climbs, more severe measures may be on the way.  Several prominent voices have now advocated imposition of a nationwide lockdown.  A noted progressive legal academic even implied such measures should be immune from judicial oversight.  And the Justice Department has suggested that Congress grant it draconian emergency powers.

While COVID-19 is no doubt frightening, so too is massive state power wielded in the name of "emergency."  Countries with even more authoritarian governments have responded by imposing military curfews.  Authorities there can arrest people simply for leaving their homes.  This is a stark contrast for Americans and those of us living in California where going outside and walking with families is possible—without fearing arrest.  Living in a country that is under complete martial law could be worse.

In this country, we are taught to pause when asked to trade liberty for security.  So we should take a moment to analyze the legal constraints governing potential lockdown proposals inside the United States.  Could the federal government or a state impose an authoritarian-style lockdown to stop the pandemic?  Could the courts be excluded from overseeing such emergency action?

Constitutional law provides substantial guidance for understanding the government’s authority to respond to the pandemic.  While court cases involving quarantines to control infectious disease are thankfully sparse, “lockdown” in its various forms is a species of preventive detention: a restriction on physical liberty without a finding of guilt after criminal trial.  Although the U.S. Supreme Court has stated that “in our society liberty is the norm, and detention…without trial is the carefully limited exception,” our constitutional system has long recognized several forms of preventive detention as lawful.  Most relevant here, the state can preventatively detain individuals who have a serious mental disorder and present a danger to themselves or others.

In general, any exercise of preventive detention authority raises three basic constitutional questions.  First, does the state have substantive authority in this context to detain without a criminal trial?  Second, is the state’s exercise of that authority reasonable in relation to its purpose—i.e., are the length and conditions of confinement necessary to address the harm at issue?  Third, has the state provided adequate procedures to ensure the criteria for exercise of that authority are met for the particular individual(s) involved?

Substantive Authority

Governmental authorities in this country—whether federal or state—almost certainly have the power to preventively detain people to protect public health.  One might argue the government should not have power to lockdown people who have done nothing wrong.  But the fact that individuals facing lockdown have committed no act that could be criminalized hypothetically might strengthen the argument for detention without trial in this context.  As with individuals whose insanity makes them dangerous, because the danger here does not arise from any voluntary conduct, the criminal justice system has limited power to address the threat to public safety.

The small handful of recent cases about quarantine thus recognizes the government’s power to detain people with deadly infectious diseases in the name of public safety.  Because we live in a federal system, there is a separate issue regarding a nationwide lockdown: does the federal government, as opposed to the states, have constitutional or statutory authority to address harms that arguably occur solely within a state’s borders?  Existing federal statutes do not clearly provide that authority.  See 42 U.S.C. 264, et seq.  However, the federal government has constitutional authority under the Commerce Clause to address matters affecting interstate commerce.  While modern jurisprudence requires such an effect on commerce to be substantial, “Congress’ power extends to activities that [substantially affect interstate commerce] only when aggregated with similar activities of others.”

Given the physical and economic devastation that the virus has already created directly and indirectly, it seems plausible that the federal government has authority to impose public health measures nationwide.  Even in distant regions—think rural North Dakota—where the virus has not yet struck, if public health experts believe that residents would risk the health of themselves and their neighbors by failing to comply with a lockdown order, the courts would likely defer to that judgment.  Because the virus itself sees no borders and because certain critical medical resources—gowns, masks, ventilators—are shared across the country and currently in short supply, the harms caused by COVID-19 in any given place substantially affect interstate commerce.

Reasonable in Relation to Purpose

Even when the government has authority to preventively detain, the Due Process Clause requires that the duration and conditions of preventive detention measures “be reasonable in relation to their purpose.”  Here, the details of any proposed lockdown really matter.  The government plainly can order social distancing in at least many parts of the country to prevent a catastrophic breakdown of healthcare systems.  But there is more than one way to impose a lockdown.

For example, shelter-in-place orders as mandated in California restrain liberty less than the curfew orders in countries with more extreme measures in place preventing people from leaving their homes and from even taking walks that doctors agree are good for public health.  Similarly, an order closing all businesses—including those providing food—could present serious constitutional concerns, particularly for those who might reasonably doubt whether the “government’s food truck” will make it to their house.  And while most lockdown proposals presumably intend to limit people to their homes, quarantine orders can also require people to go to other places for controlled isolation.  The orders applied to some people on cruise ships a few weeks ago apparently did this.

What if the government ordered anyone testing positive to leave their homes and go to a quarantine center to make sure they would follow proper social distancing protocols?  What if the state ordered at-risk groups (think: elderly with immunological problems) to self-isolate or be cocooned, perhaps at government isolation centers—a version of what the British government contemplated?

Such measures would rightly be subject to review to ensure they had an adequate medical justification and were not more restrictive upon personal liberty than necessary to serve the public health imperatively at hand.  Most obviously, if the government imposed a blanket curfew without evidence that shelter-in-place was insufficient, that measure might be unconstitutional, particularly as applied to people who might not be able to get enough food.

Existing federal statutory authority illustrates another important aspect of this reasonableness requirement.  The statute authorizing the federal government to impose quarantines for public health gives considerable authority to the Surgeon General, who in turn has delegated that authority to the Centers for Disease Control.  The law thus recognizes the role of public health experts in determining whether particular measures are needed, no doubt to safeguard against their politicization.

So, too, a court analyzing whether a restrictive measure is reasonable in relation to its purpose (and therefore satisfies the Due Process Clause) will more likely uphold the measure if public health experts have been involved in the development of the policy and endorsed it free from undue political influence.  The legitimacy created by such endorsement may also increase the public’s willingness to comply with the measure itself.  Who do you trust to tell you what you really should do to stay safe during the pandemic: non-medical personnel with political ties or medical experts without such ties?

Adequate Procedures

Even when a detention measure is no more restrictive than needed to protect public safety, law has historically provided individuals restrained of their liberty for any length of time with an opportunity to challenge the lawfulness of that restraint as applied to them.  Almost always this involves an opportunity to show a neutral decision-maker that the order—even if generally lawful—was mistakenly applied in a given individual’s case.

One might reasonably wonder whether any such protections would be necessary for the current pandemic.  After all, many medical experts seem to believe literally everyone in the country faces sufficient risk of infection to warrant socially distancing themselves.  If there is adequate medical justification to subject everyone to restraints, what procedural errors could possibly occur?

Sadly, the history of measures that give the government expansive power is rife with misapplication.  Imagine a governor ordering a total lockdown just days before an election to help his party win.  A prison guard wrongly accuses an inmate who he doesn’t like of having symptoms to send him to solitary confinement.  Here in Southern California another concern looms large.  What if police start arresting people who have no homes—there are at least 150,000 such people in Southern California—for being too near others on the streets or in public parks?

The early history of quarantine practices also includes several examples of abuse, including a quarantine in San Francisco that effectively imprisoned all ethnic Chinese people in Chinatown, but permitted whites to leave freely.  This history should not surprise us.  When the government effectively receives a blank check, those in power can be tempted to wield it for their own political ends, often to the detriment of the most vulnerable members of society.  We need not look too far back in history to see such repercussions: civil asset forfeiture laws, the USA PATRIOT Act, and scores of other legislation that have been misused by powerful government actors—top to bottom—to further their own agendas.

Some early data show African Americans may be disproportionately harmed by COVID-19.  We should all be concerned about how state and local governments that have historically discriminated against minorities would respond if handed immense powers to restrict personal liberties.  And even if nearly every enforcement decision ultimately proves to be justified, the existence of procedures that allow complaining individuals to raise concerns to neutral decision-makers serves an important role in preventing abuse.

We should all be concerned about how state and local governments that have historically discriminated against minorities would respond if handed immense powers to restrict personal liberties.

Final Thoughts

No one should underestimate the danger of this pandemic.  But neither should we underestimate the threat to our liberty arising from the government’s response.  While other countries may slide into martial law or worse during this time, we can respond to COVID-19 without destroying the precious freedom we enjoy in this country.

The current precarious situation of worldwide total governmental control is a slippery slope, particularly here in America.  If there is one thing we should have already learned it is this: authoritarian power given to government officials at the expense of sacrificing liberty is a one-way street.  Once the “crisis” is gone, the freedom and liberty we have sacrificed is too.