As grocery store shelves are being stripped bare of toilet paper, hand sanitizer, and other essentials because of fear about the spread of COVID-19, people across the United States are also dealing with limited supplies of the staple of the American way of life itself: freedom.
About 80 million Americans, as of this writing, are being told to shelter in place, while images of the Italian army and Spanish troops enforcing quarantines circulate on the internet.
Suddenly, questions such as who has the power to restrict the freedoms of Americans, what are the constitutional checks that curb federal military powers, and how far can emergency powers go, are at the forefront of Americans’ minds.
“I don’t think there are many people who woke up a month ago and thought, ‘I wonder what the power of the Virginia state governor is for quarantining in my town,’” said Charles Stimson, an expert in national security and homeland security, and a senior fellow at The Heritage Foundation.
“People are usually focused their jobs, their favorite sports team, their kids, and their family,” he told The Epoch Times. “They don’t think about the allocation of powers that they have given to their elected leaders and that are inherent in the governing documents under which they live.”
A “perfect example,” he said, was the public’s response to President Donald Trump’s recent invoking of the Defense Production Act.
Some people’s reaction was: “Sounds serious! Wow! He’s finally coming around to taking this seriously,” Stimson said. Or they “looked at it like it was a three-headed step-child—some arcane law that he ripped out of the closet.”
In fact, the Defense Production Act has been used by every president a total of 40 times since it was enacted in 1950, he said.
The act allows the federal government to demand industry produce a particular item, and to provide the money to pay them.
“President Obama used it in 2014 when we didn’t have body armor for the folks in Iraq because of all the IEDs.”
State Capitol Versus White House
Unlike those European countries, where the military is typically under national control, any shackles on freedom in the United States will most likely be executed at the state level, rather than the federal government or military.
For example, although tens of thousands of National Guard troops will likely be deployed, they will most likely answer to their commander in chief at the state capitol, not the Oval Office. And if they do come under presidential command, their powers will be curtailed somewhat.
“One of the hallmarks of the United States is that it is a federation, so powers are divided between the central government and the state governments,” said professor Robert Natelson, an expert in constitutional law and head of the Constitutional Studies Center.
“The federal government has no general police power outside of the federal territories and federal enclaves like D.C.,” he told The Epoch Times. “The reason that’s important is that police power generally includes the power to respond to emergencies, like quarantines, travel restrictions, business restrictions by lockdowns.”
People overlook the power and responsibility that exists at the state level, Stimson says.
“Because we are hyper-politicized, we tend to think that big Uncle Sam, the federal government, is going to be the one to solve all the problems, when, in fact, that’s not its constitutional duty,” he said.
Professor Lawrence Gostin, who directs the O’Neill Institute for National and Global Health Law, made a similar point talking to C-SPAN.
“We often think the president is all-powerful—and it is true that with international travel bans, he has extraordinarily broad powers,” he said. “But within the country, it’s the states, the cities, and the localities that have the primary, what we call ‘police,’ power.”
Every state constitution is different. But broadly speaking, according to Stimson, the governors have the authority to issue executive orders and to order the isolation of certain individuals and groups who are at risk, or a total quarantine in a part of the state or the whole state.
“What they’ve done in California is almost as draconian as you can get,” he said, referring to the shelter-at-home order.
The next step above that, Stimson says, is state quarantine.
“The step above that is to call in the state Guard to enforce those quarantine orders, which, we hope to God, it doesn’t get to.”
The Posse Comitatus Act
The image of military and police on the streets as European nations struggle to contain the CCP virus, commonly referred to as the novel coronavirus, has raised the specter of martial law.
“I do not envision that happening,” said Stimson, suggesting that it would take a dystopian nightmare with millions of people acting in “all sorts of horrible ways” for the president to try to enact it.
“Martial law is a term that’s not really well understood,” he said. “Martial law is rarely, if ever, invoked. It hasn’t been invoked in modern times in the United States.
“It allows either the state governor or the president to treat anybody who is in violation of his orders as if they are in the military, as if they are in violation of a military order, and to court-marshal him.”
Natelson says that martial law can result from legislation passed in a state or the federal legislature, or from a declaration by president or governor within an “actual field of hostilities.”
“Obviously, we have no hostilities in the United States,” he said. “I think it would be very difficult, certainly open to challenge, for a president or governor to declare martial law in the absence of legislation authorizing it.
“Even if there were legislation at the federal level, there are provisions in the constitution that check the ability of even Congress to declare martial law.”
Stimson said that he thinks that “a lot of constitutional scholars would say [the president] could do it without a statute.”
“The president, of course, would be better served if he could go to Congress and get a statute that allowed him to declare martial law,” he added.
The power of the military is also kept in check by the Posse Comitatus Act, which forbids it from engaging in domestic law enforcement.
However, it can be used in other ways, such as logistics and engineering.
“U.S. military forces can be used for domestic emergencies and have seen such usage throughout U.S. history,” wrote Mark Cancian, a senior adviser at the Center for International Strategic Studies, in a briefing.
Examples include fighting the California forest fires and providing disaster relief after hurricanes Katrina and Sandy.
“The Insurrection Act of 1807 does allow federal troops to be used to suppress domestic lawlessness, insurrection, and rebellion,” wrote Cancian, adding that they have been used in rare situations, such as during the Los Angeles riots in 1992.
“That authority is intentionally narrow and would not seem to allow federal troops to be used in a humanitarian situation like suppressing a pandemic,” he wrote. “However, lawyers can be quite imaginative in finding ways to stretch statutory text.”
National Guard: A Misnomer
Although the National Guard is organized nationally by the Pentagon and is a military force, it functions separately from the rest of the military.
The use of “national” in the name is also potentially misleading because the National Guard is by constitutional default under the command of individual states—as the heir to the organized state militias.
“It’s a military force,” said Stimson. “The state of Maryland has the Maryland National Guard, the state of Virginia has the Virginia National Guard. Those are part-time reservist officers.
“The governor, as the commander-in-chief of the state, has the authority under their constitution to call up the National Guard to deal with fires, floods, hurricanes.”
The National Guard can also be brought under federal control if the president chooses.
Unlike the rest of the military, the National Guard can be used for law enforcement when under state command—a privilege that would be lost under presidential control because of the Posse Comitatus Act.
If the situation regarding a CCP virus outbreak in a state deteriorated far enough that people refused to obey even the police, then the Guard could be called in to control the situation, Stimson says.
“They have tanks,” he said. “They have guns, they have Humvees, they have machine guns—they have weapons of war. They can use water cannons.”
But states are generally reluctant to use the National Guard for law enforcement, Cancian says, because “soldiers make bad police officers.”
“Soldiers are heavily armed and are taught to regard the population as ‘threats.’ Police officers are lightly armed and are trained to protect the citizenry.”
The Public Health Service Act
The federal government could use the Public Health Service Act to quarantine all people from a particular state or states, Stimson wrote in a recent Wall Street Journal op-ed.
“But an attempt to do so would certainly result in litigation,” he noted. “Congress should promptly enact a statute that would affirm federal authority to impose a general quarantine if necessary.”
The Public Health Service Act enables the U.S. surgeon general, with the approval of the secretary of Health and Human Services, “to make and enforce such regulations as … are necessary to prevent the introduction, transmission, or spread of communicable diseases.”
COVID-19 was listed for this purpose in January.
Another potential clash of liberty and protection looms: the possibility of a vaccine, and of forced vaccination.
Stimson points to a Supreme Court ruling in 1905 that ruled that a mandatory vaccine in Massachusetts was constitutional.
“It makes quite clear that the governors have extraordinary power during extraordinary health crisis time,” said Stimson.
If someone questions the power of a state to enforce a COVID-19 vaccine, Stimson said, “The answer’s going to be, ‘Tough, dude, stick your arm out.’
“And if you don’t, they’ll strap you down and vaccinate you against your will. Any lawsuit challenge on that is going to lose.”
In writing for the majority for the 1905 judgment, Justice John Marshall Harlan said that “a community has the right to protect itself against an epidemic.” Its members “may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.”
‘The Constitution Is Not a Suicide Pact’
For now, perhaps few people are thinking of challenging the restrictions currently coming into play across the United States.
“It’s possible, if this goes on for a while, that there will be the litigation on the question of whether religious freedom is being impaired as a result of emergency regulations,” Natelson said.
He was referring to orders in some states, which have said people shouldn’t gather in groups of more than three, effectively preventing some people from their religious observances.
State powers are limited by the Bill of Rights, he says, which brings up some other uncertainties. State emergency statutes are also sometimes “simply unclear,” Natelson said.
While court challenges to emergency acts are more difficult because of time pressures, Natelson says that temporary orders can be granted to block actions.
“Traditionally, however, courts have been slow to act in emergency,” he said.
Americans need to be vigilant to ensure the “government neither does too much, nor too little, ” Natelson said.
“It has been said, ‘The Constitution continues even in an emergency.’ But it has also been said, by the Supreme Court, that ‘the Constitution is not a suicide pact.’
“Americans have to ensure that they don’t panic and say, ‘Gee, whatever the government declares is fine.’ And by contrast, they shouldn’t take the position that the government shouldn’t do anything—that it’s all a violation of our freedom.”