The media should stop clamoring for a nationally ordered lockdown, or “quarantine,” to respond to the current pandemic. The president almost certainly lacks constitutional authority to order one, and it may not even be the wisest approach.
To be clear, this is not a medical judgment. The argument here is one of political philosophy and of the law. Secondarily, it is an argument that common sense argues in favor of humility and caution about sweeping, one-size-fits-all solutions.
Again and again, cable commentators and national news outlets have been reporting that “President Donald Trump is resisting calls to issue a national stay-at-home order,” while explicitly or implicitly urging him to issue such an order pronto. The president, though, appears to have no such power.
USA Today, to its credit, ran an article saying definitively that the national emergency law, called the Stafford Act, “does not allow the federal government to impose mandatory quarantines.” And conservative legal veteran Andrew McCarthy, while arguing in favor of broad presidential authority to respond forcefully to a pandemic, including a potential ban of travel between states, nonetheless adjudges it a “more dubious proposition” to imagine that the president can order quarantines within states.
This distinction stems from the constitutional framers’ understanding that local authorities, not nationally centralized ones, are often best able to respond to unique local circumstances. As a matter of political theory, this is wise. In a state such as South Dakota, which is not densely populated, it is less likely that a “stay-at-home” order would be necessary. It might even prove counterproductive in such a place, whereas it might be vital in densely populated New York City.
Remember, we’re all in uncharted territory here. Even the conventional wisdom’s great hero of the hour, Dr. Anthony Fauci, was stupendously wrong on all of this as recently as late January, when on several different occasions he gave variations of a Jan. 21 assertion that “This is not a major threat for the people in United States, and this is not something the citizens of the United States right now should be worried about.” It is of course fathomable that Fauci’s prescriptions now are somewhat overreactive, even if not as bad as his original error was in the other direction.
Policymakers desperately need better data.
As Fauci said during the March 24 White House press briefing, we need “to be very flexible. And on a literally day-by-day and week-by-week basis, you need to evaluate the feasibility of what you’re trying to do … The country is a big country and there are areas of the country … that we really need to know more about what the penetrance is there. … [If] you find, after a period of time, that there are areas that are very different from other areas of the country, you may not want to essentially treat it as it – [not] just one force for the entire country, but look at flexibility in different areas.”
Alabama, for example, has no statewide shelter-in-place order. Mobile County, where I live, has (at this writing) still fewer than 80 confirmed cases. Yet it’s not as if governor Kay Ivey is doing nothing. She has ordered nonessential businesses to be closed, banned gatherings of more than ten people, and suspended regulations that otherwise ban out-of-state medical personnel from practicing in Alabama. In consultation with state health authorities, she has, in carefully calibrated ways, tweaked and expanded her emergency orders as circumstances seemed to merit.
What gives the pundits their certainty that Ivey is wrong? In Europe, Sweden is rejecting the full-shutdown response in favor of milder restrictions combined with strong exhortations for voluntary social distancing and adult common sense — without obviously bad results so far. Might it not be helpful for U.S. states likewise to try a variety of slightly differing responses, so we’ll have more data about what may work best?
Nobody is arguing that states should blithely ignore the crisis. Governors such as Florida’s Ron de Santis, who kept public beaches open against plenty of advice to the contrary, do merit criticism. Other governors who remain almost willfully ignorant, such as Georgia’s Brian Kemp bizarrely claiming he learned only this week that the coronavirus can be spread by asymptomatic people, deserve all the disdain that comes their way.
Still, the U.S. system of federalism rightly rejects universal, nationally ordered infringements on basic liberties. States that take slightly different approaches might give national authorities more and better data from which to learn — control cases, if you will — while better protecting the rights and livelihoods of their citizens.
