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13-16 minutes
President Donald Trump holds a news conference on the growing coronavirus outbreak Friday. | Drew Angerer/Getty Images
President Donald Trump has declared a national emergency to combat the coronavirus — but he could go much further if he wanted.
Federal law gives Trump vast emergency powers in times of pandemic. He could direct the quarantine of people arriving in the United States who exhibit certain symptoms or even if they’re just suspected of having the virus. He could have the federal government detain individuals if their illness might wind up crossing state lines.
And under regulations revised and reissued just before Trump entered office, the government can stop and seize any plane, train or automobile to stymie the spread of contagious disease. Some even interpret the statute as meaning a president could deploy the military to cordon off a city or state.
Federal law gives Trump vast emergency powers in times of pandemic. He could direct the quarantine of people arriving in the United States who exhibit certain symptoms or even if they’re just suspected of having the virus. He could have the federal government detain individuals if their illness might wind up crossing state lines.
And under regulations revised and reissued just before Trump entered office, the government can stop and seize any plane, train or automobile to stymie the spread of contagious disease. Some even interpret the statute as meaning a president could deploy the military to cordon off a city or state.
“The
federal public health power is pretty awesome … awe-inspiring in its
breadth,” said Wendy Parmet, a law professor at Northeastern University.
“But there’s also obviously a lot of danger.”
Indeed,
it’s an extraordinary palette of options for a president often mocked
as enamored of dictatorial authority and who has claimed, “I have the
right to do whatever I want, as president.” And many of these powers
remain largely undefined, as they have rarely — if ever — been widely
used. It’s a troubling concept for those who are pressing Trump to take
more urgent action to combat the coronavirus as it infiltrates American
cities, but are wary that he will go too far.
“We
can’t divorce this from the context of a president who has shown a
willingness to abuse emergency power,” said Elizabeth Goitein of the
Brennan Center for Justice at New York University.
The
conflict was on display Friday as Trump declared a national emergency
to unlock funding and bypass regulations to accelerate the lagging
development of coronavirus testing options. While even some of Trump’s
most ardent opponents praised the move, they were anxious about what
might come next.
“As other steps
are considered, the president must not overstep his authority or indulge
his autocratic tendencies for purposes not truly related to this public
health crisis,” Senate Minority Leader Chuck Schumer (D-N.Y.) said in a
statement.
Fresh discussion of
Trump’s power to isolate regions of the U.S. was spurred Thursday by his
comments in response to a question about whether he was considering
travel restrictions to the states experiencing some of the most
widespread infections, such as Washington and California.
“We haven’t discussed that yet. Is it a possibility? Yes. If somebody
gets a little bit out of control, if an area gets too hot,” the
president said during an Oval Office photo-op with the Irish prime
minister.
While experts say such measures would be ineffective — diverting resources better devoted to scaling up hospitals and aiding people in dire straits due to other impacts of the virus — they might be legally possible.
Under the Public Health Service Act, federal authorities can quarantine individuals arriving in the U.S. by air, land or ship if they are suspected of infection with a list of diseases and syndromes set by executive order. The law also gives federal officials the power to try to check the spread of disease between states, although this authority is almost never used to fight human illnesses.
The Centers for Disease Control, however, maintains that its quarantine powers go quite far. Regulations finalized by the Obama administration claim that federal officials can detain individuals if their illness could spread to other states. The rules essentially give the federal government the authority to stop and seize commuters in a bid to halt the spread of contagious disease.
Whether it could allow a president to use the military to cordon off a city or a whole state is less clear, but experts say that the statutes and regulations could be read to allow for that.
“The ability to restrain interstate travel is something that could be done, but the question is would it be done?” said Jennifer Nuzzo of the Johns Hopkins Center for Health Security. “These are the kinds of scenarios that you think would never happen but here we are.”
But in this situation, Nuzzo said, it’s too late for that extreme measure.
While experts say such measures would be ineffective — diverting resources better devoted to scaling up hospitals and aiding people in dire straits due to other impacts of the virus — they might be legally possible.
Under the Public Health Service Act, federal authorities can quarantine individuals arriving in the U.S. by air, land or ship if they are suspected of infection with a list of diseases and syndromes set by executive order. The law also gives federal officials the power to try to check the spread of disease between states, although this authority is almost never used to fight human illnesses.
The Centers for Disease Control, however, maintains that its quarantine powers go quite far. Regulations finalized by the Obama administration claim that federal officials can detain individuals if their illness could spread to other states. The rules essentially give the federal government the authority to stop and seize commuters in a bid to halt the spread of contagious disease.
Whether it could allow a president to use the military to cordon off a city or a whole state is less clear, but experts say that the statutes and regulations could be read to allow for that.
“The ability to restrain interstate travel is something that could be done, but the question is would it be done?” said Jennifer Nuzzo of the Johns Hopkins Center for Health Security. “These are the kinds of scenarios that you think would never happen but here we are.”
But in this situation, Nuzzo said, it’s too late for that extreme measure.
“There
would be no public health benefit,” said Nuzzo, who studies government
responses to health crises. “Over 40 states are reporting cases. … The
horse is out of the barn. The disease is already here.”
On
Friday, Trump invoked his first significant emergency power since the
coronavirus first appeared in January, declaring a national emergency.
In its
declaration, the White House cited two laws — the 1988 Stafford Act, a
disaster relief law, and the 1976 National Emergencies Act, the law
Trump used to divert government funds to build a southern border wall.
For
days, though, Trump had balked at exercising the power, even as he
faced a chorus of calls from health groups, disaster relief specialists
and Democrats to do so. According to people familiar with the situation,
Trump had been reluctant to take the step because it could undermine
his contention that the coronavirus outbreak is similar to seasonal flu.
But he insisted on Thursday that he was more than willing to invoke any of his emergency authorities.
“We
have very strong emergency powers under the Stafford Act. … And if I
need to do something, I'll do it,” he said, adding cryptically, “I have
the right to do a lot of things that people don't even know about.”
Trump
has not previously been bashful about exercising his emergency powers.
He was only seven days into his tenure when he issued the hugely
controversial travel ban, sharply restricting the flow of people to the
U.S. from mostly-Muslim countries. A series of court rulings blocked
enforcement of the original ban, prompting the administration to redraft
the order several times. The Supreme Court ultimately upheld a
substantially pared-back version of the initial order.
The
policy — which critics called a “Muslim ban” — was based on the same
legal authority Trump has since used to exclude foreign travelers from
China and, now, from much of Europe, in response to the current virus.
Many
White House statements about the new virus-related travel restrictions
go out of their way to explicitly cite the precise legal authority
tapped in both instances, giving the president the power to “suspend the
entry of all aliens or any class of aliens as immigrants or
nonimmigrants, or impose on the entry of aliens any restrictions he may
deem to be appropriate.”
The
mentions seem to echo arguments the Justice Department made in the
“Muslim ban” case. Lawyers repeatedly warned judges to be wary about
restricting the power because it may be needed in a crisis.
Perhaps
Trump’s most aggressive executive actions have involved money, namely
his moves to spend billions of dollars on construction of a border wall
with Mexico despite Congress’s unwillingness to fund that project — a
signature of his 2016 campaign — at anywhere near the levels he has
sought.
Trump’s lawyers have cited
powers Congress gave the president to reallocate military construction
funds and to tap other funds for counter-drug activities.
Lower
courts halted more than $6 billion of the funding, questioning Trump’s
claims of an emergency and noting Congress’s rather explicit refusal to
fund expansion of the wall. But the Supreme Court stepped in last year to allow Trump to proceed with the spending as litigation continues.
Historically,
officials at the state and local level have taken the most aggressive
measures to address public health emergencies.
In
1899 and 1900, officials in Honolulu and San Francisco cordoned off
those cities’ Chinatown districts in a bid to control the bubonic
plague, a move now viewed as heavily tainted by racism. Authorities in
Hawaii even lit one home on fire in order to try to squelch the disease,
but in the process burned down much of the neighborhood.
Nothing
similar has happened yet in the U.S. during the coronavirus outbreak,
although governors are increasingly flexing their legal muscle.
Maryland
Gov. Larry Hogan (R) on Thursday ordered the closure of all public
schools in the state for two weeks. On the same day, California Gov.
Gavin Newsom (D) issued an executive order
directing residents to eschew non-essential gatherings of more than 250
people. Newsom also tapped the state’s power to “commandeer” hotels, if
needed, as temporary hospitals or quarantine centers.
And
in New York, Gov. Andrew Cuomo (D) declared a “containment zone” in New
Rochelle, N.Y., to combat a virulent cluster of corona cases there. He
even called out the national guard to assist with food distribution and
other logistics in the city.
Trump
weighed in on the move at his photo-op Thursday, noting it isn’t a
flat-out ban on movement or work. While he called the action “not very
strong,” he seemed to welcome the fact that it would give locals the
feeling “they’re being watched.”
Some of the more severe travel limits the federal government can impose are quietly wielded in individual cases.
The
CDC maintains a little publicized “do-not-board” list for domestic and
international airline travel. Details on the list are thin, but it has
included people with tuberculosis and measles. In 2015, CDC formally declared that individuals could be added to the list if they were suspected simply of being exposed to hemorrhagic fevers, like Ebola.
Back
in 2007, an Atlanta lawyer drew national attention when he flew to
Paris to get married and returned to the U.S. while suffering from
drug-resistant tuberculosis. Doctors said they told him not to travel,
but he insisted they never told him he could be contagious. He was
eventually put under a federal quarantine order, but it turned out his
disease was not the type most resistant to treatment.
Typically, however, federal officials have relied on state and local
health departments to address most disease outbreaks, even sometimes
asking them to detain individuals who refuse to cooperate with doctors’
recommendations.
But Trump has hostile relationships with the Democratic governors of the most affected states — Washington, California and New York. And if he wanted, he could have the CDC step in. Federal regulations give the CDC sweeping powers if a state’s measures “are insufficient” to prevent a disease from spreading into another state. The CDC chief is authorized to do what he or she “deems reasonably necessary” under those circumstances. Whether that includes widespread restrictions on movement is unclear.
Parmet, the Northeastern University law professor, stresses that the Constitution still applies. Aggressive federal government action on such vague authority could face legal challenges, especially if the moves don’t have a scientific basis.
On the other hand, in a crisis judges tend to defer to executive authorities, including health officials.
“The real danger is that these moves are taken just for show,” Parmet said. “At this point, where we are in the curve of this pandemic, there’s no magical legal elixir.”
But Trump has hostile relationships with the Democratic governors of the most affected states — Washington, California and New York. And if he wanted, he could have the CDC step in. Federal regulations give the CDC sweeping powers if a state’s measures “are insufficient” to prevent a disease from spreading into another state. The CDC chief is authorized to do what he or she “deems reasonably necessary” under those circumstances. Whether that includes widespread restrictions on movement is unclear.
Parmet, the Northeastern University law professor, stresses that the Constitution still applies. Aggressive federal government action on such vague authority could face legal challenges, especially if the moves don’t have a scientific basis.
On the other hand, in a crisis judges tend to defer to executive authorities, including health officials.
“The real danger is that these moves are taken just for show,” Parmet said. “At this point, where we are in the curve of this pandemic, there’s no magical legal elixir.”
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