Lock Us Down; Suspend Habeas; Save the Nation

Posted in: Constitutional Law

The U.S. response to the COVID-19 outbreak has been grossly inadequate, hampered by a fateful early decision to reject tests from the World Health Organization and subsequent delays in producing sufficient tests to provide a clear picture of the scope of the domestic outbreak. Recent measures by localities, states, and Congress indicate a new urgency, but they will not suffice to prevent the crisis when severe cases overwhelm even the best-prepared hospitals and the most selfless health care workers. That tragic scenario is already unfolding in the Seattle area and will soon recur everywhere. To mitigate the death toll of the coronavirus, we need to lock down the country—now. Lockdown has worked in China, and while it is too early to know its impact in Italy, all experts agree that it should help “flatten the curve” and thus save many thousands of lives.

But China is governed by an authoritarian regime and Italy’s Prime Minister heads the government of a national system, not a federal one. In a frighteningly prescient 2007 article titled Stop Federalism Before It Kills Again: Reflections on Hurricane Katrina, Tulane Law Professor Steven Griffin explained how our system of divided government—usually so useful for safeguarding liberty and facilitating local experimentation—can lead to catastrophe in emergencies, when fractured authority leaves us rudderless. Will our traditions of individual rights and federalism doom us now?

They need not. Reversing course from just a week earlier, when he said that people’s “level of fear” of the coronavirus is “not connected to the facts,” New York Governor Andrew Cuomo issued a desperate plea to President Trump to allow wider state testing and to make the full resources of the federal government available to launch a coordinated response, including extensive closures. Cuomo did not call for the sort of national lockdown we have seen in Italy and that we will now likely see in Spain, France, and elsewhere, but he should have.

Would that be legal? The potential legal obstacles to a national lockdown can likely be overcome by swift decisive action from Congress and the President.

When I contemplated large-scale quarantines in response to the Ebola outbreak in 2014, I concluded that the U.S. Constitution leaves state and local governments with the power to restrict their populations. However, state law limits that power, and while state legislatures can repeal or modify statutes, state constitutional provisions take too much time to change. Furthermore, as Governor Cuomo notes, inconsistent state policies will be counterproductive, encouraging people to travel across state lines and thereby further spread the virus.

Fortunately, the U.S. Constitution’s Supremacy Clause gives Congress power to override state law. A national lockdown would be an exercise of the power to regulate foreign and interstate commerce—here temporarily halting both in the immediate hope of saving lives and ultimately reviving our economy. Congress should exercise that power, sweeping aside state law obstacles to the participation of state and local officials in the enforcement of a national lockdown.

To be sure, a 1997 Supreme Court decision forbids Congress or the President from ordering state and local officials to enforce federal law, but nothing in the Constitution forbids those officials from voluntarily doing so—and they likely would, especially if bipartisan legislation reimbursed state and local governments for the associated costs.

What about civil liberties? In normal times, the government may not confine people for the public safety absent “clear and convincing evidence” that they pose a danger to themselves or others. One would hope that during a pandemic the courts would construe that standard on a population basis rather than one by one. Thus, while there may not be clear and convincing evidence that any particular asymptomatic individual poses a threat, there is such evidence for the population as a whole.

Congress can avoid the risk that a judge would enjoin a nationwide lockdown by cutting the courts out of the equation. Congress has considerable power to eliminate jurisdiction over constitutional challenges to its own laws. Moreover, Congress can suspend the writ of habeas corpus, which ordinarily allows people to go to court to challenge any substantial restraint on liberty.

Wait. The Suspension Clause only allows that drastic action “when in Cases of Rebellion or Invasion the Public Safety may require it.” Is the coronavirus an “Invasion?”

The short answer is no one knows, because Congress has only ever suspended habeas in wartime. But there is reason to think that the courts would dismiss a habeas case following nearly any congressional suspension. In 2004, liberal Justice John Paul Stevens joined with conservative Justice Antonin Scalia, who wrote that what constitutes an invasion and whether it justifies habeas suspension “are questions for Congress rather than” the courts to decide.

Would locking down the nation and suspending habeas corpus in response to COVID-19 be an extreme measure? Undoubtedly, but Congress could include a relatively short sunset provision to ensure timely re-evaluation.

In the last week, Congress and the President have shown that even in our age of bitter polarization, bipartisanship in the face of grave national danger remains possible. They must do so again, and quickly.

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