Tuesday, March 24, 2020

1889 Institute: Can Government Legally Force You to Close Your Business? Yes.


Can Government Force You to Close Your Business?
by Mike Davis, 1889 Institute

(March 23, 2020) 1889 Institute takes no position on whether any or all of these measures are warranted or necessary, or whether their economic fallout would inflict more human suffering than they prevent. We are simply evaluating whether they are legal. 

With the unprecedented (in the last 100 years at least) reaction surrounding the outbreak of Covid-19, questions that few living legal scholars have considered are suddenly relevant.

  • Can a quarantine be ordered? 
  • Can a mass quarantine, lockdown, or “cordon sanitaire” be ordered?
  • Can businesses be ordered to change their behavior? 
  • Can businesses be ordered to close?
  • Can state governments order these measures?
  • Can local governments order these measures?

My legal brief addresses these issues from a statutory point of view; it is clear that state law gives the governor and mayors broad authority in a state of emergency. They must, of course, do so in a neutral way that they reasonably believe will help prevent the spread of infection. They cannot order quarantine of registered voters from the opposite political party while their own supporters remain free to go about their lives as usual. Nor could they nationalize the auto industry and force them to build tanks when the emergency is a microscopic virus. The less certain question is whether there is constitutional authority for extreme measures like quarantines.

Those familiar with the 1889 Institute and our goal of limited, responsible government may be surprised to hear that we answer most of these questions with a “yes.” There really is not much to debate about whether someone in government has the powers listed. Quarantine powers have been part of the general police power since before Christopher Columbus’s famous voyage. America’s founders would not be surprised that the quarantine power was being invoked today, but rather at how sparingly the power has been used in the last century.

When evaluating whether government actors may take an action, both statutory and constitutional authority must be considered. Statutory authority is fairly clear. State and federal statutes give broad quarantine powers to federal, state, and local officials.

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