The COVID-19 pandemic has raised many questions about how to constitutionally handle a public health crisis on both the state and national levels. Many wonder if a national lockdown can be put in place — a new dilemma that has little legal precedent to follow.

Can individual rights be limited to protect public health?

Short answer: Under Jacobson v. Massachusetts (1905), states may take measures to protect public health, even if it limits some individual rights.

In the early 1900s, a smallpox epidemic hit Massachusetts, and the city of Cambridge enacted a law that required all of its residents to be vaccinated against smallpox with a $5 fine of noncompliance. Henning Jacobson, a citizen of Cambridge, refused the vaccine and contested the fine, which ultimately led to the case reaching the Supreme Court in 1905.

This case, Jacobson v. Massachusetts (1905), has set Supreme Court precedent that individual states such as Massachusetts may take action to protect the health and safety of its citizens, even if it may abridge certain individual liberties, and that the fine against Jacobson was just. Since the case involves state power to protect public health, it can help us better understand the current situation regarding COVID-19 in the United States.

Many states, including California, New York, and Illinois, have taken statewide measures to limit the spread of the COVID-19 virus. On March 20, New York Governor Andrew Cuomo signed an executive order mandating that 100% of the workforce must stay home, excluding essential services. These measures enacted by states are valid exercises of power since states have the ability to take statewide measures in order to protect public health under Supreme Court precedent.

Is public health a state or national matter?

Short answer: While public health is traditionally under state jurisdiction, the federal government can become involved in several ways.

The issue becomes trickier when we look at the ability of the federal government to impose national mandates during the COVID-19 pandemic. This is difficult because public health has traditionally been viewed as under state jurisdiction. This state jurisdiction comes from the 10th Amendment of the Constitution, which says that any powers not delegated to the national government in the Constitution are reserved to the states. Since public health is not explicitly mentioned anywhere in the Constitution, it is widely interpreted that public health is considered under state jurisdiction.

Nevertheless, there are ways for the federal government to get involved in protecting public health. For instance, the federal government may choose to evoke the Commerce Clause of the Constitution, which expresses that the federal government has the authority to regulate interstate commerce. Thus, if a health crisis such as COVID-19 spreads beyond any individual states, the federal government may claim that they have the authority to prevent the spread of disease among states if it interferes with interstate commerce.

Another way that the federal government can influence health is through providing recommendations to the states. One of the main recommendations that the President has made during this pandemic has been the “stay-at-home” guideline, recommending that people stay at home until April 30. While this is only a recommendation, many states have made decisions congruent with national guidelines.

How does declaring a “national emergency” change things?

Short answer: Declaring a “national emergency” can give the president and executive branch more authority over a situation such as the COVID-19 epidemic.

Laws and policies often change during times of crisis. Once a president declares a “national emergency,” for instance, 100 special provisions become available for the executive branch to use. Some of the most relevant provisions for a public health crisis include waiving certifications necessary to supply public health services and authorizing the use of unapproved drugs. Moreover, courts and legislatures often defer more to the executive branch’s decisions made during a national emergency. In this case, judicial deference may mean that the Supreme Court will defer more to executive decisions made on COVID-19 since it has been declared a “national emergency.” This is all under the historical assumption that the president will act in the best interest of the country in times of crisis.

COVID-19 was declared a national emergency as of March 1, 2020, which means we may see more deference towards the President’s decisions in upcoming months. This is one of the few times that a national emergency has been declared due to a public health concern. Because of this, we may see new uses of national emergency powers.

One of the most discussed actions the President has taken after declaring COVID-19 a national emergency was evoking the Stafford Act on March 13, 2020. One such question has been whether the Stafford Act could be used to mandate a national lockdown, but it does not seem like the act itself could do so. The main intent of the Stafford Act is to enable the federal government to provide assistance to states and local governments through the Federal Emergency Management Agency. This means that while the federal government can provide resources to states, it still cannot directly intervene in the crisis response of the states.

Can President Trump mandate a national lockdown?

Unfortunately, it is a hard question to answer. Not much legal precedent exists on how to respond to a public health crisis like this pandemic on a national scale. There are many legal factors at play as well. Factors such as Jacobson v. Massachusetts (1905) and the Tenth Amendment may point to an argument that public health issues, including mandatory lockdowns, are primarily state concerns. However, if the president did choose to order a nationally mandated lockdown, other factors such as the federal power to regulate interstate commerce and presidential “national emergency” powers may help him in doing so.

With such little legal precedent, the decisions made in the next few months will be critical to better understand how both the state and federal governments should respond to public health crises.

Meghan Sharma is a medical student.

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