(April 3) The media should stop clamoring for a nationally ordered lockdown, or “quarantine,” to respond to the current pandemic. The president almost certainly lacks constitutional authority to order one, and it may not even be the wisest approach.
To be clear, this is not a medical judgment. The argument here is one of political philosophy and of the law. Secondarily, it is an argument that common sense argues in favor of humility and caution about sweeping, one-size-fits-all solutions.
Again and again, cable commentators and national news outlets have been reporting that “President Donald Trump is resisting calls to issue a national stay-at-home order,” while explicitly or implicitly urging him to issue such an order pronto. The president, though, appears to have no such power.
USA Today, to its credit, ran an article saying definitively that the national emergency law, called the Stafford Act, “does not allow the federal government to impose mandatory quarantines.” And conservative legal veteran Andrew McCarthy, while arguing in favor of broad presidential authority to respond forcefully to a pandemic, including a potential ban of travel between states, nonetheless adjudges it a “more dubious proposition” to imagine that the president can order quarantines within states.
This distinction stems from the constitutional framers’ understanding that local authorities, not nationally centralized ones, are often best able to respond to unique local circumstances. As a matter of political theory, this is wise. In a state such as South Dakota, which is not densely populated, it is less likely that a “stay-at-home” order would be necessary. It might even prove counterproductive in such a place, whereas it might be vital in densely populated New York City.
Remember, we’re all in uncharted territory here. Even the conventional wisdom’s great hero of the hour, Dr. Anthony Fauci, was stupendously wrong on all of this as recently as late January….
[The rest of the column is at this link.]
