Novel coronavirus raises novel legal issues

Visiting Associate Professor Jeff ThalerBy Visiting Associate Professor Jeff Thaler

Excerpt from an op-ed published in the Portland Press Herald

In Maine, one inhabited island tried to keep people from coming over from the mainland because of contagion concern; on a nearby island, several residents cut down trees to blockade a house occupied by people feared to be infected by COVID-19. Some states are stopping incoming cars based on their license plates; others are “suggesting” or “requiring” 14-day quarantines, but with no enforcement. All of this is in the context of no nationally mandated restrictions on movement within the U.S. in the face of a fast-spreading virus that knows no borders.

With almost 500,000 “confirmed” cases of infection in the U.S. and more than 18,000 deaths, one of the surprises has been how little experienced lawyers and government officials seem to know about what are limits of the law to more quickly flatten curves and reduce the exposure of healthy people to those who are infected but asymptomatic.

Can the constitutional right to interstate travel and commerce be limited in a time of a public health emergency? Likewise, few have answers for how local and state governments can either act on their own initiative without running afoul of federal law, or how federal officials could act more proactively based on existing laws and regulations.

COVID-19 is not the first pandemic affecting America, and will not be the last. One federal law authorizes the surgeon general – who has said this week will be our new Pearl Harbor or 9/11 in terms of deaths – to make and enforce regulations “necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession.”

And following the Ebola crisis of just three years ago, such federal regulations exist – but are not being applied, and must be strengthened on an emergency basis. One authorizes the apprehension, examination and detention “of any individual reasonably believed to be infected with a communicable disease and (A) to be moving or about to move from a State to another State; or (B) to be a probable source of infection to individuals who, while infected with such disease in a qualifying stage, will be moving from a State to another State.”

To read the full op-ed, please visit the Press Herald’s website.