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A woman in a surgical mask

What is the Legal Authority for Public Health Orders?

A woman in a surgical mask

Typically, the government cannot restrict a person’s liberty without due process of law – which usually means a criminal proceeding ending in a finding of guilt. But in recent days, we’ve heard about cruise ships being kept from coming into port and people placed in quarantine. So what is the legal authority for the federal government to restrict travel and deny citizens the ability to enter the country in light of a public health crisis like the one we are currently facing?

The Commerce Clause

The federal government derives its power to place people in to quarantine and isolation from the Commerce Clause of the United States Constitution. This clause grants the federal government the power to regulate commerce between the states, and the power has been broadly defined to allow regulation of issues that may affect commerce between the United States. There is little doubt that a pandemic such as the one threatened by the COVID-19 outbreak could affect interstate commerce, making it well within the purview of federal regulation authorized by the commerce clause.

The Public Health Service ACt

Section 361 of the Public Health Service Act (42 U.S. Code § 264) authorizes the U.S. Secretary of Health and Human Services to take measures to prevent the entry and spread of communicable diseases from foreign countries into the United States and between states. The authority to carry these functions out has been delegated to the United States Centers for Disease Control and Prevention (CDC).

The Role of the CDC

Federal regulations authorize the CDC to detain, examine, and release individuals arriving in the country and between states who are suspected of carrying communicable diseases.  When the agency is informed about an ill passenger or crew member on an airplane or a ship, it may detain individuals to determine whether the illness was caused by a communicable disease and take further action if it is deemed necessary.

States Authority to Issue Public Health Orders

States have the authority to protect public safety through their police power and have laws in place that authorize them to take steps to control the spread of disease through isolation and quarantine. 

In Practice, Public Health Actions are a Joint Effort

In many cases, public health orders involving efforts to stop the spread of communicable diseases in the United States are a joint effort that involve federal and state efforts. Often, public health authorities work with local law enforcement to enforce public health orders.

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