In light of the Corona Virus pandemic, this article has been written to address the questions about what authority the government has in regards to combating the disease. At this time, all across the US, the various state and local governments have taken steps towards slowing the spread of the disease. Just yesterday, the governor of California ordered the citizens of the entire state to shelter in place. Here in Florida, the State has not yet taken these extreme measures, but has closed all the beaches and ordered that people not congregate in groups of 10 or more.

The idea behind this article is to explain what power the government has to combat this disease, specifically a mass, nationwide quarantine. This is not an exhaustive legal analysis of all these issues, but is more meant to provide some basic information to people unfamiliar with how the government behaves in a time of a public health crisis.

There are 3 basic levels of government: Federal, State, and Local. Each has its own set of laws which govern what they can and can’t do. The biggest and most powerful document that governs this is the Constitution, which lays out the basic framework for the division of power between these levels of government.

At the Federal level, this consists of the President, Congress, and the Supreme Court. The law that seems to apply to a situation like the Corona Virus outbreak would be 42 US Code § 264 is entitled “Regulations to Control Communicable Diseases.” This law authorizes the Surgeon General to take steps necessary to prevent the (1) the introduction, (2) transmission, and (3) spread of communicable diseases from foreign countries into the US and its territories. The statutes goes on to list certain actions the Surgeon General may take in accomplishing this goal, but ultimately leaves it to his judgment. Additionally, the Surgeon General is authorized to take measures to prevent the entry and spread of communicable diseases from foreign countries into the United States and between states. The authority for carrying out these functions on a daily basis has been delegated to the Centers for Disease Control and Prevention (“CDC”).

Going specifically to the point of engaging in a quarantine, 42 CFR § 70.6 deals with the apprehension and detention of persons with quarantinable communicable diseases. This law allows for the quarantine of an individual believed to be infected with a disease and is still contagious. If an individual under this law is held, they must be held in a place with

  1. Adequate food and water,
  2. Appropriate accommodation,
  3. Appropriate medical treatment, and
  4. The means of necessary communication.

This would imply that the Federal Government cannot detain and quarantine a person with no food, water, medical care, or a means to communicate with a family member or representative. In general, 42 CFR § 70 & 71 seem to be the laws which explain what authority the Federal Government has during an infectious outbreak.

These laws allow the Federal Government to disinfect persons and things. If they think it carries the disease and that disease can be spread by being on that item, the CDC can disinfect the item up to the point of destroying the item. Obviously the person wouldn’t be destroyed, they would be quarantined. Additionally, the person or persons being quarantined may be surveilled and may have medical examinations conducted of them. Lastly, yet importantly, they have to reassess the quarantined individual’s status every 72 hours.

Nowhere in my research did I find any language expressly allowing the President or any branch of the Federal Government to enact a nationwide quarantine or any quarantine large than just a few individuals. It would seem the President may quarantine large groups of people coming into the country from overseas, but cannot do so for citizens who are already inside the county. At the beginning of the Covid-19 outbreak, a cruise ship was held at a port off the coast of California and was quarantined. This situation would seem to fall under the authority of the Federal Government being that the cruise ship was coming from outside the US from overseas.

The next level of government to discuss would be all the state governments. Each state has their own laws in place which affects what they are capable of doing to combat the spread of Covid-19. Since I practice in Florida, this will be Florida specific.

Florida Statute § 381.00315 is conveniently titled, “Public health advisories; public health emergencies; isolation and quarantines.” This law allows the State Health Office to:

  1. Order isolation and testing;
  2. Reactivate inactive licenses for doctors and nurses;
  3. Close businesses; as well as
  4. Move those exposed or infected.

Lastly, and most importantly,

“The department has the duty and the authority to declare, enforce, modify, and abolish the isolation and quarantine of persons, animals, and premises as the circumstances indicate for controlling communicable diseases or providing protection from unsafe conditions that pose a threat to public health.”

This is the bit where it would seem the State of Florida can enact a shelter in place style quarantine or more if the need arises much like California just did. This language seems to be lacking at the Federal level.

The last level is the municipal level which would be city governments, county governments, etc. All of these government entities will have their own laws which govern what they can and can’t do. Parking tickets, pot holes, and things like that are usually governed by these entities.

 However, in the State of Florida, Florida Statute § 381.00315 has a catch-all provision which seems to supersede all lower governmental organizations. This would include all the municipal governments in the State of Florida. If accurate, local governments would be permitted to act within their local charters until the State of Florida stepped in and ordered otherwise. Just recently, the City of Clearwater voted to keep the beaches open until Monday. However, Gov. DeSantis stepped in and ordered them closed Friday. This is likely where he got the authority to overrule the City of Clearwater.

The same would likely hold true if Gov. DeSantis ordered that all citizen of the State of Florida should shelter in place. Referencing back to Florida Statute § 381.00315, he would have the authority to do so as long as “the circumstances indicate” that doing so would “provide protection” for the public health.

In conclusion, my opinion is the Federal Government has broad authority to isolate and quarantine individuals. They may also do other things not previously discussed such as provide money and information to the state and local governments. However, it does not seem that the President or any other Federal entity has the authority to conduct widespread detentions or quarantine of the population. That authority seems to be left to the States to decide. In the case of Florida, Florida Statute § 381.00315 seems to give the State fairly broad authority to do as they see fit given our current Covid-19 situation. Lastly, that same statute seems to out rank any municipal government in authority to govern in a quarantine situation.

I hope this is helpful to some people. If you have any questions about any of this. Give me a call.