Pandemic Police Powers of a State Should be Least Restrictive

During the pandemic, when an American citizen domiciled in a state is deprived of civil rights by the state, was the deprivation of civil rights done appropriately according to the Standards?  Second, if the state meted out consequences to an American domiciled in that state for not complying with pandemic restrictions, were the state’s consequences proportional or excessive?  We examine several Standards regarding civil rights and human rights in the age of COVID19.  There is an important Standard in case law, Jacobson v Massachussetts. 

Federal Standard from Centers for Disease Prevention and Control: Pandemic Powers should be Least Restrictive

According to the CDC, states should make police actions that are the ‘least restrictive,’ even during a pandemic. CDC guidance also notes that citizens should not be denied life, liberty, or property without due process.

Questions remain as to whether the consequences meted out to a citizen who chooses not to follow state restrictions were proportional.  

Now, when that citizen or group of citizens bring a lawsuit, new questions are being raised in court as to whether the restrictions of a state met specific Standards.  We present a balanced view of these interpretations, with citations to the original author and publication agreeing with CDC guidance and citing different interpretations of the U.S. Constitution and case law and international standards.

These include:

  1. the U.S. Health and Human Services Centers for Disease Prevention and Control,
  2. the Tenth Amendment of the U.S. Constitution,
  3. the Fourteenth Amendment of the U.S. Constitution,
  4. the U.S. Commerce Clause,
  5. citations to legal discussion and interpretation of case law,
  6. the American Bar Association
  7. International Standards such as guidance published by the United Nations High Commissioner on Human Rights

We anticipate seeing more litigation in the U.S. that touches on issues such as:

  1. the power to quarantine (i.e., to segregate any part of the population)
  2. the power to restrict commerce within a state

    Michael Arrigo medical ethics expert
    Michael Arrigo medical ethics expert
  3. the power to restrict commerce interstate
  4. the power to require vaccinations

Now, a federal appeals court is considering whether a legal challenge to some of Pennsylvania’s now-expired COVID-19 restrictions is moot, a question that other courts have heard in related pandemic-related litigation.

U.S. District Judge William Stickman of the Western District of Pennsylvania ruled last September that Wolf’s orders to help stop the spread of the coronavirus were unconstitutional, violating the First Amendment right of assembly and the equal protection and due process clauses of the 14th Amendment.

  • If a court determined that challenges to restrictions were moot where a citizen had allegedly been harmed, it could deny those citizens may need a legal remedy from their alleged deprivation of life, liberty, or property.
  • If, on the other hand, courts do not determine that the challenges to restrictions are moot, there will be massive ongoing costs to many cities, county, and state governments from litigation.
  • A byproduct of the pandemic has been that court closures due to COVID have delayed many cases, except for those with the highest urgency to be heard immediately.

What does this mean for your state? Read on.

The CDC Guidance States that even in a Pandemic, a State Should Use Least Restrictive Alternatives

CDC guidance provides that even during an epidemic, a state must use the least restrictive alternative that will achieve the state’s interest:

“In the exercise of its public health police powers, a state must use the least restrictive alternative that will achieve the state’s interest, particularly when the exercise involves limitation of an individual’s liberty. The standard used to determine that a government’s exercise of its public health police powers is appropriate is whether the government action is necessary, uses reasonable means, is proportional, and avoids harm.”  See Jacobson v. Massachusetts, 197 US 11; 25 S. Ct. 358 (1905).”

CDC Notes Fourteenth Amendment Provides for due process protection before depriving any person of life, liberty, or property

“The exercise of a state’s public health police powers has limitations. The U.S. Constitution provides safeguards to ensure that the exercise of these powers is not excessive or unrestrained. For example, the Fourth Amendment protects citizens from unreasonable searches and seizures. Whereas the Fifth Amendment prohibits the federal government from depriving anyone of life, liberty, or property without due process of law, the Fourteenth Amendment imposes similar due process protections on the individual states. “The guaranty of due process . . demands that the law shall not be unreasonable, arbitrary or capricious, and that the means selected shall have a real and substantial relation to the object sought to be attained” (see Nebbia v. New York, 291 US 502, 525, 54 S. Ct. 505, 510 (1934)).

The essential elements of due process include notice to the person involved and the opportunity for a hearing or similar proceeding.

Nevertheless, the Tenth Amendment provides that states have the authority to use stringent measures in the name of public health.

Authority of States to Quarantine Under the Tenth Amendment

As noted by an article in the American Bar Association in 2020,

“The power to quarantine and take even more stringent measures in the name of public health has belonged largely to the states for nearly 200 years. In 1824, the Supreme Court drew a clear line in Gibbons v. Ogden between the state and federal governments when it came to regulating activities within and between states. In a unanimous ruling, then-Chief Justice John Marshall cited the 10th Amendment in saying that police powers are largely reserved to states for activities within their borders.”

Commerce Clause Provides that Only the Federal Government can Restrict Interstate and Foreign Quarantine.

The public health authority of the states derives from the police powers granted by their constitutions and reserved to them by the 10th Amendment to the U.S. Constitution. The basis for the federal governments’ authority to prescribe a quarantine and other health measures is based on the Commerce Clause, which gives Congress exclusive authority to regulate interstate and foreign commerce.

To be specific, a comprehensive public health response to avert the spread of highly contagious diseases may call for the isolation of people, the quarantining of a community exposed to the infectious disease, or both. Quarantine typically refers to the “separation of individuals who have been exposed to an infection but are not yet ill from others who have not been exposed to the transmissible infection.” In contrast, isolation refers to the “(s)eperation of infected individuals from those who are not infected.” Primary quarantine authority typically resides with state health departments and health officials; however, the federal government has jurisdiction over interstate and foreign quarantine.

Authority to Require Vaccination: Differing Legal Interpretations of Jacobsen v. Massachusetts

Gostin States that Compulsory Vaccinations Can be Permitted

A different view was taken by an attorney, writing in 2005 that a state can require vaccinations, citing the same Jacobson v Massachusetts case law. As noted in 2005 by Lawrence O. Gostin, J.D., in his article, “Jacobson v Massachusetts at 100 Years: Police Power and Civil Liberties in Tension“:

“A century ago, the U.S. Supreme Court in Jacobson v Massachusetts upheld the exercise of the police power to protect the public’s health. Despite intervening in scientific and legal advances, public health practitioners still struggle with Jacobson’s essential tension between individual liberty and the common good.

In affirming Massachusetts’ compulsory vaccination law, the Court established a floor of constitutional protections that consists of 4 standards: necessity, reasonable means, proportionality, and harm avoidance. Under Jacobson, the courts are to support public health matters insofar as these standards are respected.

If the Court today were to decide Jacobson once again, the analysis would likely differ—to account for developments in constitutional law—but the outcome would undoubtedly reaffirm the essential power of government to safeguard the public’s health.”

Mariner, Annas, and Glantz Disagree, Stating that Involuntary Confinement is a Deprivation of Liberty that Cannot be Accomplished without Due Process of Law.

Nevertheless, in another view of Jacobsen v Massachusetts, Wendy K. Mariner, J.D., LLM, MPH, George J. Annas, J.D., MPH, and Leonard H. Glantz, J.D. noted:

“Public health and constitutional law have evolved to better protect both health and human rights. States’ sovereign power to make laws of all kinds has not changed in the past century. What has changed is the Court’s recognition of the importance of individual liberty and how it limits that power. Preserving the public’s health in the 21st century requires preserving respect for personal liberty.”

The authors continue:

“Even in an emergency, when there is a rapidly spreading contagious disease and an effective vaccine, the state is not permitted to forcibly vaccinate or medicate anyone. The constitutional alternative is to segregate infected and exposed people separately to prevent them from transmitting the disease to others. Here again, modern constitutional law demands a high level of justification. The Supreme Court has long recognized that “involuntary confinement of an individual for any reason, is a deprivation of liberty which the State cannot accomplish without due process of law,”

What we will Be Watching For

It will be important to monitor litigation proceedings on these Standards. In particular, whether state actions :

  1. were necessary
  2. used reasonable means
  3. were proportional
  4. avoided harm

Furthermore, when a state citizen was either allegedly deprived of civil rights or, if the state meted out consequences to a citizen who did not comply, whether the consequences met the same standards:

  1. was necessary,
  2. used reasonable means,
  3. was proportional (or in the alternative, where they found to be excessive)
  4. applied the due process before depriving any person of life, liberty, or property

Necessary

A state’s police power . . . may be lawfully resorted to for the purpose of preserving the public health, safety or morals, or the abatement of public nuisances, and a large discretion is necessarily vested in the legislature to determine not only what the interests of the public require, but what measures are necessary for the protection of such interests” (see Holden v. Hardy, 169 US 366, 392 (1898)).

Reasonable Means

Although the government may act under conditions of necessity, its methods must be reasonably designed to prevent or ameliorate the threat. Jacobson adopted a means/ends test that requires a reasonable relationship between the public health intervention and the achievement of a legitimate public health objective. See Jacobson v. Massachusetts, 197 US 11; 25 S. Ct. 358 (1905)

Proportional vs. Excessive

The Office of the High Commissioner for Human Rights (UN Human Rights) is the leading UN entity on human rights.  UN Human Rights is committed to the promotion and protection of the full range of human rights and freedoms set out in the Universal Declaration of Human Rights.  UN Human Rights provides:

“Emergency powers should be used within the parameters provided by international human rights law, particularly the International Covenant on Civil and Political Rights (ICCPR), which acknowledges that States may need additional powers to address exceptional situations. Such powers should be time-bound and only exercised on a temporary basis with the aim to restore a state of normalcy as soon as possible.

Even without formally declaring states of emergency, States can adopt exceptional measures to protect public health that may restrict certain human rights. These restrictions must meet the requirements of legality, necessity and proportionality, and be non-discriminatory.

The suspension or derogation of certain civil and political rights is only allowed under specific situations of emergency that“threaten the life of the nation”. Some safeguards must be put in place including the respect of some fundamental rights that cannot be suspended under any circumstances.

The International Covenant on Economic, Social and Cultural Rights does not include a provision on derogations. State obligations associated with the core content of the rights to food, health, housing, social protection, water and sanitation, education and an adequate standard of living remain in effect even during situations of emergency.”

The U.N. continues,

“RESTRICTIONS ON HUMAN RIGHTS AS A RESULT OF EMERGENCY MEASURES

Some rights, such as freedom of movement, freedom of expression, or freedom of peaceful assembly may be subject to restrictions for public health reasons, even in the absence of a state of emergency. These restrictions, however, must meet the following requirements:

  • Legality: The restriction must be “provided by law”. This means that the limitation must be contained in a national lawof general application, which is in force at the time the limitation is applied. The law must not be arbitrary or unreasonable, and it must be clear and accessible to the public.
  • Necessity. The restriction must be necessary for the protection of one of the permissible grounds stated in the ICCPR, which include public health, and must respond to a pressing social need.
  • Proportionality. The restriction must be proportionate to the interest at stake, i.e. it must be appropriate to achieve its protective function; and it must be the least intrusive option among those that might achieve the desired result.
  • Non-discrimination. No restriction shall discriminate contrary to the provisions of international human rights law.”
  • All limitations should be interpreted strictly and in favour of the right at issue. No limitation can be applied in an arbitrary manner.
  • The authorities have the burden of justifying restrictions upon rights.
  • “In O’Neil v. Vermont (144 U.S. 323, 339–40 (1892). See also Howard v. Fleming, 191 U.S. 126, 135–36 (1903). Justice Field argued in dissent that, in addition to prohibiting punishments deemed barbarous and inhumane, the Eighth Amendment also condemned “all punishments which by their excessive length or severity are greatly disproportionate to the offenses charged.”
  • “In Weems v. the United States, (217 U.S. 349 (1910). The Court was here applying not the Eighth Amendment but a statutory bill of rights applying to the Philippines, which is interpreted as having the same meaning. Id. at 367) the Court adopted this view in striking down a sentence in the Philippine Islands of 15 years incarceration at hard labor with chains on the ankles, loss of all civil rights, and perpetual surveillance, for the offense of falsifying public documents. The Court compared the sentence with those meted out for other offenses and concluded: “This contrast shows more than different exercises of legislative judgment. It is greater than that. It condemns the sentence in this case as cruel and unusual. It exhibits a difference between unrestrained power and that which is exercised under the spirit of constitutional limitations formed to establish Justice.” (217 U.S. at 381.) Punishments as well as fines, therefore, can be condemned as excessive. (The Eighth Amendment succinctly prohibits ‘excessive’ sanctions.” Atkins v. Virginia, 536 U.S. 304, 311 (2002) (applying proportionality review to determine whether the execution of the mentally retarded is cruel and unusual). Proportionality in the context of capital punishment is considered under “Limitations on Capital Punishment: Proportionality,”).”
  • “In Robinson v. California (370 U.S. 660 (1962)) the Court carried the principle to new heights, setting aside a conviction under a law making it a crime to “be addicted to the use of narcotics.” The statute was unconstitutional because it punished the “mere status” of being an addict without any requirement of a showing that a defendant had ever used narcotics within the jurisdiction of the state or had committed any act at all within the state’s power to proscribe, and because addiction is an illness that—however it is acquired— physiologically compels the victim to continue using drugs. The case could stand for the principle; therefore, that one may not be punished for status in the absence of some act (a different approach to essentially the same problem was taken in Thompson v. Louisville, 362 U.S. 199, 206 (1960), which set aside a conviction for loitering and disorderly conduct as being supported by “no evidence whatever.” Cf. Johnson v. Florida, 391 U.S. 596 (1968) (no evidence that the defendant was “wandering or strolling around” in violation of vagrancy law).) or it could stand for the broader principle that it is cruel and unusual to punish someone for conduct that he is unable to control, which would make it a holding of far-reaching importance. (Fully applied, the principle would raise to constitutional status the concept of mens rea, and it would thereby constitutionalize some form of insanity defense as well as other capacity defenses.”
  • “For a somewhat different approach, see Lambert v. California, 355 U.S. 225 (1957)(due process denial for the city to apply felon registration requirement to someone present in city but lacking knowledge of requirement).”
  • “More recently, this controversy has become a due process matter, with the holding that the Due Process Clause requires the prosecution to prove beyond a reasonable doubt the facts necessary to constitute the crime charged, Mullaney v. Wilbur, 421 U.S. 684 (1975), raising the issue of the insanity defense and other such questions. See Rivera v. Delaware, 429 U.S. 877 (1976); Patterson v. New York, 432 U.S. 197, 202–05 (1977). In Solem v. Helm, 463 U.S. 277, 297 n.22 (1983), an Eighth Amendmentproportionality case, the Court suggested in dictum that life imprisonment without possibility of parole of a recidivist who was an alcoholic, and all of whose crimes had been influenced by his alcohol use, was “unlikely to advance the goals of our criminal justice system in any substantial way.” )”
  • “In Powell v. Texas, (392 U.S. 514 (1968). The plurality opinion by Justice Marshall, joined by Justices Black and Harlan and Chief Justice Warren, interpreted Robinson as proscribing only punishment of “status,” and not punishment for “acts,” and expressed a fear that a contrary holding would impel the Court into constitutional definitions of such matters as actus reusmens rea, insanity, mistake, justification, and duress. Id. at 532–37. Justice White concurred, but only because the record did not show that the defendant was unable to stay out of public; like the dissent, Justice White was willing to hold that if addiction as a status may not be punished, neither can the yielding to the compulsion of that addiction, whether to narcotics or to alcohol. Id. at 548. Dissenting Justices Fortas, Douglas, Brennan, and Stewart wished to adopt a rule that “criminal penalties may not be inflicted upon a person for being in a condition he is powerless to change.” That is, one under an irresistible compulsion to drink or to take narcotics may not be punished for those acts. Id. at 554, 567) a majority of the Justices took the latter view of Robinson, but the result, because of one Justice’s view of the facts, was a refusal to invalidate a conviction of an alcoholic for public drunkenness. Whether either the Eighth Amendment or the Due Process Clauses will govern the requirement of the recognition of capacity defenses to criminal charges remains to be decided.”

 

Michael F. Arrigo

Michael is Managing Partner & CEO of No World Borders, a leading healthcare management and IT consulting firm. He serves as an expert witness in Federal and State Court and was recently ruled as an expert by a 9th Circuit Federal Judge. He serves as a patent expert witness on intellectual property disputes, both as a Technical Expert and a Damages expert. His vision for the firm is to continue acquisition of skills and technology that support the intersection of clinical data and administrative health data where the eligibility for medically necessary care is determined. He leads a team that provides litigation consulting as well as advisory regarding medical coding, medical billing, medical bill review and HIPAA Privacy and Security best practices for healthcare clients, Meaningful Use of Electronic Health Records. He advises legal teams as an expert witness in HIPAA Privacy and Security, medical coding and billing and usual and customary cost of care, the Affordable Care Act and benefits enrollment, white collar crime, False Claims Act, Anti-Kickback, Stark Law, physician compensation, Insurance bad faith, payor-provider disputes, ERISA plan-third-party administrator disputes, third-party liability, and the Medicare Secondary Payer Act (MSPA) MMSEA Section 111 reporting. He uses these skills in disputes regarding the valuation of pharmaceuticals and drug costs and in the review and audit of pain management and opioid prescribers under state Standards and the Controlled Substances Act. He consults to venture capital and private equity firms on mHealth, Cloud Computing in Healthcare, and Software as a Service. He advises ERISA self-insured employers on cost of care and regulations. Arrigo was recently retained by the U.S. Department of Justice (DOJ) regarding a significant false claims act investigation. He has provided opinions on over $1 billion in health care claims and due diligence on over $8 billion in healthcare mergers and acquisitions. Education: UC Irvine - Economics and Computer Science, University of Southern California - Business, studies at Stanford Medical School - Biomedical Informatics, studies at Harvard Medical School - Bioethics. Trained in over 10 medical specialties in medical billing and coding. Trained by U.S. Patent and Trademark Office (USPTO) and PTAB Judges on patent statutes, rules and case law (as a non-attorney to better advise clients on Technical and Damages aspects of patent construction and claims). Mr. Arrigo has been interviewed quoted in the Wall Street Journal, New York Times, and National Public Radio, Fortune, KNX 1070 Radio, Kaiser Health News, NBC Television News, The Capitol Forum and other media outlets. See https://www.noworldborders.com/news/ and https://www.noworldborders.com/clients/ for more about the company.

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