On the Constitutionality of Quarantine

Disclaimer- IANAL- I am not a lawyer. TLDR; I dig deeper into quarantine constitutionality. Do I like this? No. Is it constitutional? Undoubtedly yes. Do I pray that it is short? YES!!!! I just had to have an argument with my son on which was the more important use of bandwidth, work from home earning money for the family or his daily homework.

Read on for a deeper analysis

Digging deeper on this whole Quarantine Constitutionality question, it's not as straightforward as I though. HUGE numbers of paragraphs in US Code 42 have been repealed by Congress over the years (in keeping, of course, with their Article I section 8 powers to govern the public welfare).

What President Trump (and by extension, Kate Brown) is only two paragraphs from the original quarantine code passed by Congress in 1793. The same Congress that gave us the Constitution to begin with.

But it is plenty of authority for this disruption of civilian lives.

President Trump's original authority to manage the CDC and public health is in Sections 1 and 1A, most of which has been repealed over the years except for

42 U.S. Code § 26 - for the protection of military personnel civilians may be detained under quarantine.

President Trump's authority, which has been duly delegated to Kate Brown, is in Section 2, and under the older numbering system (this is after all a 200 year old law),

42 U.S. Code § 97 states that local authority trumps federal authority in this matter. (Section 2 is 81-114 inclusive).

These have, of course, been modified by the Supreme Court's interpretation over the years, but largely in *support* of executive and executive department authority to order quarantines.

Starting with the "Cordon Sanitaire" of Philadelphia in 1798 (after 10 years of battling annual yellow fever epidemics), colonial era boards of health have historically enjoyed near godlike police powers.

However, starting in the mid 1840s, steamship and shipping companies started complaining.

At first they tried using jurisdictional arguments, as in Smith v. Turner, 48 U.S. 283, 340-41 (1849) and in Morgan's Steamship Co. v. Louisiana Board of Health (1886)

Then they tried arguing that local ports couldn't stop international ships from docking, Compagnie Francaise de Navigation a Vapeur v. Board of Health of State of Louisiana (1902) [a direct link to the liberal press complaints about President Trump banning air travel from affected countries]

Finally, early anti-vaccination efforts tried to attack 42 U.S. Code § 97 directly, giving the federal government power over the states in implementation, but the right of the state to require vaccination was upheld in Jacobson v. Massachusetts (1905).

And it was extended to mental health with a court case on sexual predators, Matthews v. Eldridge (1976), in which "due process" concerns were suppressed in conjunction with the public good.

Do I like this? No. Is it constitutional? Undoubtedly yes. Do I pray that it is short? YES!!!! I just had to have an argument with my son on which was the more important use of bandwidth, work from home earning money for the family or his daily homework.

---------------Edit and update

Steve Lehto adds an interesting take on this. If you don't like these laws- CHALLENGE THEM. If you don't like an executive order- file for an injunction in court!