Pandemic Politics: The Tenth Amendment

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Hello Everyone:

It is a very lovely afternoon in the blogosphere and The Candidate Forum is stepping in again for another session on The Politics of The Pandemic.  Before we get started on a rather interesting subject, The Pandemic and The Constitution, a little election news.  Remember the primaries?  Under the heading of foregone conclusion, VPOTUS Joe Biden (D-DE) clinched the Democratic nomination following last week's round of primaries.  Before The Candidate Forum forgets, now that the primaries are more or less over, The Candidate would like to remind all of its American readers to vote on Election Day, November 3, 2020.  If are not a registered voter (and why not), please go to usa.gov.   In a shocker of a United States Supreme Court ruling, the justices ruled 6-3 in favor of allowing LGBTQ people, wrongfully terminated because of their sexual orientation, to sue their employer.  The shocker was Trump-appointee Justice Neil Gorsuch siding with Chief Justice John Roberts and the four more liberal justices.  Actually, the shocker would have been Justice Brett Cavanaugh siding with the liberal justices.  Love is Love and onward.

The United States Constitution
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The United States Constitution and The Bill of Rights is one of the most remarkable documents in world history.  The very elegant prose, James Madison lays out how the newborn country is to be governed and the first set of rights granted to its citizens.  Truly remarkable for its day.  For over two hundred years, The Constitution has served as the foundation for every legal question and law enacted, at every level of government.  Pretty amazing, right?  However, what does it say about modern pandemics?  Shall we discuss?

The COVID-19 virus has tested state and federal powers to a greater extent than at any time in the nearly 244 year history of the United States.  The federal government's powers are limited to only specific circumstances.  For example, "...the Commerce Clause, which gives Congress exclusive authority to regulate interstate and foreign commerce, the federal government has broad authority to quarantine and impose other health measures to prevent the spread of diseases from foreign countries, as well as between states although that has never been affirmed by the courts" (americanbar.org; Apr. 2020; date accessed June 15, 2020).  Additionally, the federal Public Health Service Act authorized the Secretary of Health and Human Services, currently Alex Azar, the authority to lead the federal public health and medical response to public health emergencies, like the COVID-19 virus.

tenthamendmentcenter.com

The Tenth Amendment and 200 years' worth of SCOTUS decisions give the individual states the primary authority to control the spread of dangerously contagious diseases within their jurisdictions.  The Amendment, which grants the states powers not specifically given to the federal government; "allows them the authority to take public health emergency actions, such as setting quarantines and business restrictions"(americanbar.org; Apr. 2020).  For example, the state governments can order quarantines and restrict the movement of people who have been exposed to a contagious disease to see if they develop the full blown disease.  They can also instruct people who are sick with communicable disease into isolation.  "The governor's orders, akin to shelter-in-place directives, affect tens of million in affected states.  Curfews are another tool they can impose" (Ibid).

There is legal precedence for a state ordering a person or persons into isolation.  A man in the state of Kentucky test positive for the virus refused to self-isolate.  State officials obtained a court order to force him into isolation and posted a law enforcement officer outside his home to underscore the seriousness of the matter.

In 1824, the U.S. Supreme Court made a clear distinction in Gibbons v. Ogden between when state and federal governments can regulate activities within and between the states.  "In a unanimous ruling, then-Chief Justice John Marshall cited the 10th Amendment in saying that police powers are largely reserved to states for activities within their borders" (americanbar.org; Apr. 2020), including the ability to impose quarantine conditions.  Chief Justice Marshall explained those police powers,

...form a portion of that immense mass of legislation which embraces everything within the territory of a state not surrendered to the general government (Ibid)

In 1902, SCOTUS directly addressed a state's right to quarantine an entire geographical area.  In Compagnie Francise de Navigation a Vapeur v. Louisiana State Board of Health, "the justices upheld a Louisiana Supreme Court decision that the state could enact and enforce quarantine laws unless Congress decided to preempt them"(americanbar.org; Apr. 2020).  Under this ruling, the state of Louisiana could isolate healthy persons from an area inhabited with people with contagious or infectious disease--the Port of New Orleans in this case--further, this power applied to people seeking to enter the infected area whether or not they came from within the state.

Although the president initially dismissed COVID-19 as nothing more than a bad case of the flu and downplayed the need to impose a national quarantine, some interpreted it as his power under the Commerce Clause,  which governs foreign nations and among (Ibid) states.  The precedence for this was the 1918-19 Influenza pandemic, during which the federal government, under President Woodrow Wilson, also did not invoke the Commerce Clause. 

The president could have recommended the governors to issue "stay home" orders, following the examples of California and New York, the first states to issue such orders.  However, a 2014 Congressional Research Service explained that "...amid the Ebola threat, governors have broad powers to invoke restrictions in their state while the powers of the president is significantly more limited by law and Supreme Court precedent" (americanbar.org; Apr. 2020).

The takeaway here is we are confronted with a fascinating question of American federalism that has led to a an equally fascinating national debate over just who is in charge during a pandemic.  Suddenly, the Tenth Amendment is relevant and it is the governors of the progressives states (Gavin Newsom of California and Andrew Cuomo of New York) that are actively invoking this amendment.  Although the virus has affected some states more severely than others, a state-ordered lock down in New York or California may seem draconian in North Dakota or Alaska, which have experienced lower rates of infection.  There is not a manual on how to sort out the powers granted to the states and federal government, in a certain respect, everyone is making it up as they go along.  Be that as it may, the United States is fortunate to have the remarkable Constitution and over two centuries of sage Supreme Court rulings to guide us through these very trying time.