In the Constitutional Battle over Quarantines Between Trump and Cuomo, The President Loses

SAINT PAUL, Minn., March 30, 2020 /PRNewswire-PRWeb/ -- Hamline University professor David Schultz, noted expert on American constitutional law, says that President Trump does not have the constitutional authority to impose a quarantine. In fact, governors such as Andrew Cuomo have far more authority to address public health crises such as Covid-19 than does the President of the United States.

Writing both in a recent Bloomberg Law piece and in his newly released "Public Health and the Constitution" supplement to his constitutional law casebook, Schultz argues that: "There is nothing in the text or history of the Constitution that gives the President the inherent authority to impose quarantines for public health purposes, and it is also not clear that Congress has this authority to do that or delegate such authority to the president. For the President or national government to do this, one would have to show that the Commerce or General Welfare Clauses of the Constitution grant the power to do this. Yet in light of recent Supreme Court decisions, including the 2012 opinion limiting the power of national government to requires individuals to buy health insurance, it is less clear what are the scope of the powers Donald Trump has in public health matters."

This basic state authority to regulate public health matters is located in what is called its "police power." This is the ability of states to act to protect the health, welfare, and safety of its people. The police power is the basis of all types of state laws ranging from zoning, fire and sanitation codes, to public health measures. Schultz points out that" "It is a well-established constitutional principle that the national government lacks this important police power that states have. This makes the federal government a weaker player, at least when it comes to quarantines and many other public health measures, in comparison to states."

Schultz did point out that states and governors do not have unlimited authority to impose quarantines, shelter-in-place orders, or mandate other public health measures. There are still many civil liberties and due process issues that many constrain what they do, and perhaps there may be legal tests in the coming months that will test these limits.

Finally, Schultz does point out that the president and the federal government are not powerless when it comes to acting in the Covid-19 crisis. The federal government can provide important research, coordination, logistics, and funding to assist states protect the public health. "But at the end of the day, in the constitutional battle between Donald Trump and Andrew Cuomo regarding quarantines and other public health measures, the constitutional principle of federalism is on the side of the states."

David Schultz is a professor in the departments of Political Science and Legal Studies at Hamline University and also a Professor of Law at the University of Minnesota and University of Saint Thomas. He has taught classes on American government, health care policy, state and local law, and constitutional law for more than 30 years. A three-time Fulbright scholar and winner of the Leslie A. Whittington national award for excellence in public affairs teaching, David Schultz is the author and editor of 35 books and 200 articles including his casebook Constitutional Law in Contemporary America, as well as the Encyclopedia of the United States Constitution; Encyclopedia of American Law; Encyclopedia of the Supreme Court; and the Encyclopedia of Civil Liberties

SOURCE Hamline University