Coronavirus and the Constitution

As of mid-February 2020, more than 45,000 people in China have been diagnosed with a disease called coronavirus. Officials there reported that more than 1,100 of them have died. Cases have been popping up in other countries in Asia, Europe, the Middle East, and in North America as well. If the spread continues, coronavirus could be considered a pandemic. (You can track the locations, spread, and fatalities in real time here, at a website maintained by Johns Hopkins University.)

Patients suffer from a range of symptoms, including headaches, backaches, fever, breathing difficulties, and diarrhea. Given the number of cases and deaths and the discomfort that even survivors experience, this sounds like a serious situation. But, as of mid-February, no one actually knows how serious. Like many coronaviruses, including ordinary colds, this particular virus (technically, COVID-19) spreads by human-to-human contact through sneezing or coughing or touching. Since some of these symptoms are similar to those for the flu, many people go undiagnosed. So, no one knows if those infected pass along the disease before they show symptoms. Nor is it known if it’s very contagious or just slightly contagious. It’s also unclear whether some people, such as the elderly, are more susceptible or if everyone is equally likely to catch it.

Above all, the death rate is uncertain. Unless doctors know and report every person who has contracted coronavirus, there’s no way to compute the percentage of people who die from it.

Still, government officials in some places have undertaken a number of actions to try to contain the spread of coronavirus. Some seem routine; others, drastic. For instance,

• Almost all of the 19 million people who live in Wuhan, China, where the outbreak began, have been quarantined. The city has been largely shut down.
• Overhead drones operated by the police in some Chinese cities hover over individuals on the street and warn them to wear masks or go indoors.
• The central Chinese government has declared that it is a crime for anyone to intentionally spread the disease—and the punishment for the crime can be execution.
• The government has also commandeered workers, land, and materials to quickly build a hospital large enough to hold a thousand people.
• With eight cases diagnosed in Britain, officials there also have allowed mandatory isolation of infected people.
• Travelers from China to Canada and the United States have been quarantined on military bases for two weeks.
• A cruise ship containing 135 infected passengers docked in Japan, and the 2,500 passengers have not been allowed to leave their cabins, let alone the ship. Meanwhile, crew members have bunked together, possibly threatening their health.

Since information is incomplete, some of these measures could turn out to be pointless or even harmful. This is where the US Constitution comes in. Chapter 19 of Fault Lines in the Constitution, which is titled “At War with Bugs: Habeas Corpus,” points out that the Constitution is vague about the circumstances under which our government can detain people during a state of emergency (For an update on Kaci Hickox, the nurse we discuss in that chapter, see “Coronavirus Quarantine“). Many people think of the attacks on September 11, 2001, as the most frightening national emergency. However, a pandemic that affects the health of millions of Americans might be even more threatening. We blogged about this issue in “What If the Plague Comes to America?” when that scourge also seemed to be on the rise. In addition, Chapter 18, “At War: Emergency Powers” shows how unclear the Constitution is about the circumstances under which the president can declare an emergency. We blogged about that issue in “What Can Presidents Do If (They Claim) There’s an Emergency?”

The Constitution states that people who are imprisoned have the right to ask for a writ of habeas corpus, which requires the government to explain their detention or release them. But, during times of “rebellion or invasion” we lose that right. Is a possible pandemic one of those times when Americans could be confined against their will? Does “invasion” refer only to attackers carrying guns or throwing bombs? Or, does it also include people who are unknowingly carrying a potentially dangerous virus? For instance,

• Could the White House or an agency, such as Health and Human Services, force everyone in New York City, say, or Los Angeles, to stay home for weeks on end? (Answer: Possibly, because of the powers of the Centers for Disease Control, which we explain in Chapter 19.)
• Would the government need to convince a court that widespread quarantines would reduce the spread of a disease? (Answer: Probably not, especially if the leader of the CDC, who is appointed by the president, agreed with the president that a quarantine would be helpful.)
• Could thousands of members of the military be deployed to build hospitals, as in China? Could doctors employed by the United States—say the Veterans Administration—be forced to move to the site of greatest infections? (Answer: Who knows?)

Even though coronavirus does not currently pose a danger to our homeland, many Americans are fearful of the disease. And, fear can provoke unnecessary and unfortunate policies. Sometimes the Constitution leaves us with no clear answers when we are facing the most fundamental questions about our rights and the limits on them.