As the Coronavirus pandemic grows and spreads, governments around the world are scrambling to understand and deal with the threat to society that the pandemic has created.
Overall, our country has been a little slow on the uptake, which is surprising considering that the CDC (Center for Disease Control and Prevention) is an American organization and they get involved in pretty much any outbreak of disease, on a worldwide basis.
In the beginning, our government was pooh-poohing the whole thing as not being all that serious. While there are those who are finger-pointing about that, it’s understandable. Little was known about the virus and China wasn’t exactly being forthcoming with information. They wouldn’t even let doctors from the CDC in the country.
Not only that, but it’s a totally new strain of the virus, which we’ve never encountered before. That’s bad, as it means that our bodies have no natural defenses against the virus. It also means that the medical community had no data to work with. A lot of hard research had to be undertaken, very quickly, to bring us to the point of even understanding what this disease is. Our government delay in reacting has been largely caused by waiting until the administration had enough information to act upon.
Could they have done some things sooner? Possibly. We can always look back from the 20/20 vision of hindsight and find fault with our government’s actions. But that fault is always found by people who don’t have to sit in the hot seat, having to make the decisions.
Why Suspend Flights Now?
If we look back over the last couple of months, the Coronavirus has been spreading rapidly. The first report came out of China on December 31st. But at first, it was just in China and then in surrounding countries. It wasn’t until January 19th that the first case came to the United States. That was through a man who had just returned from Wuhan, China.
But a major shift happened at the beginning of March. The first prong of this shift was a slowing down of new cases being reported in China. While there are still new cases every day, the number dropped to the double digits, not the thousands. At the same time, reports of new cases started to rise in Europe, especially in Italy. The epicenter of the disease shifted from China to Europe, with the world’s eyes fixed on what was happening there.
Italy was the first country to declare a quarantine in Europe, closing off the entire northern part of the country in an effort to contain the disease. That was announced just a few short days before the president announced his decision to suspend flights from Europe to the United States.
This action was not a startlingly new move for the president to undertake, as a number of American air carriers had already taken the same action in regards to their own flights from China. The only difference was that the president made the order to suspend the flights, rather than the decision being made in corporate boardrooms around the country.
It is perfectly within the president’s right to deny entrance to the United States. This is long-standing law, which was affirmed by the Supreme Court in the case of Trump’s banning of travel from six Muslim-controlled countries in the early days of his presidency. While a number of lower courts ruled against the president, mostly on the grounds that his actions were merely an outward manifestation of inward racism. Apparently, those lower courts, as well as those who brought the case against the President, though they could determine his heart and thoughts, based upon earlier comments he had made, mostly taken out of context.
The important thing here is that the Supreme Court has declared that the president can suspend travel from any country he so chooses, as long as he is doing it in the interest of national security. In this case, national security doesn’t have anything to do with terrorists or enemy armies, it has to do with protecting the American people from a deadly disease. Since the Supreme Court decision didn’t specifically specify any circumstances under which the president can’t close the borders to a particular group, he’s operating under the law, regardless of who might criticize him.
In a sense, the decision to suspend flights from Europe is an attempt at partial quarantine. While not as thorough a quarantine as that being imposed in Italy, it is a prudent measure for our government to take, because the epicenter of the disease has moved to Europe and most new coronavirus cases are coming from Europe.
Dr. Fauci, the head of the National Institute of Allergy and Infectious Diseases at the National Institute of Health was part of the team which looked at the data and made the recommendation to the president that the travel ban from Europe is put in place. He has publicly stated, unequivocally, that the travel ban for travel from China helped reduce the number of cases we are currently seeing here in the US and that the new travel ban will do the same.
So Why Not Quarantine?
The mayor of Lodi, Italy recently recorded a video, which is available online, encouraging the rest of Europe and the United States to institute a quarantine, like the one they are under. In that video, he said that if we didn’t do so now, then in two weeks, we’d be as bad off as they are now.
So, if that’s the case, why doesn’t the president just declare a nationwide quarantine, rather than just banning flights from countries which have the disease? Wouldn’t that ultimately make the pandemic die out quicker, with fewer people being infected by it?
The simple answer is… he can’t.
Oh, he can order a nationwide quarantine, but that doesn’t mean it will happen. Allow me to explain.
To start with, let’s define what we mean by a nationwide quarantine. It’s not enough just to seal our borders. If you look at any of the data about the number of cases there are in the US today, there are only two states which are disease-free. But the number of cases varies, with several states only having one case of the disease reported to date, while the state of Washington leads the nation with over 400 cases. So an effective quarantine isn’t just about closing the borders with other countries but also closing the borders between states.
There’s just one problem… that’s illegal.
Since 1823 the Privileges and Immunities Clause (Article 4) of the US Constitution has been interpreted to mean that US citizens had unrestricted rights to cross state lines. The power to uphold this right wasn’t invested in the federal government but in the states.
Should the president decide to take a stand against this interpretation of the Constitution and sign an Executive Order declaring a quarantine, it would most likely be challenged in court, as fast as his opponents could file a motion and get on the docket of their favorite judge. Chances are pretty high that the Executive Order would be countermanded.
But it gets even more complicated than that. For any quarantine to actually happen, it would have to be enforced. That would involve many more people with guns than are currently working for Border Patrol, the FBI, the US Marshall’s service and every other federal law enforcement organization there is. It would most likely require the participation of the US Army and other armed forces.
That’s not going to work either; at least not legally. The Posse Comitatus Act, which was passed as part of the Army Appropriations Act of 1878, forbids the federal government to use federal military forces to enforce any domestic policy within the territory of the United States.
At the time of its writing, the Posse Comitatus Act only applied to the US Army. But in 19565, it was amended to include the US Air Force. While the Navy and Marines are not mentioned by name in the act, the Department of the Navy regulations extends this same limitation on the Navy and Marine Corps. The only military forces our government has available to it, which are allowed to operate on US soil are the Coast Guard and the National Guard.
The National Guard is unique in that it has both a state and federal function. While belonging to the states, with the state governor serving as their Commander in Chief, the National Guard, and the Air Guard can be activated for federal service at any time. Such activation takes precedence over any orders from the state governor.
But once National Guard forces are called up for federal service, it can be argued that Posse Comitatus applies to them as well. So the only way they can be used to enforce the quarantine is if they are doing so under the orders of their individual states. So all it would take is for the 26 governors of the opposing political party to disagree with the president and order their states’ Adjutant Generals to disobey federal orders, and the quarantine falls apart.
This leaves only one possible way for the president to impose a quarantine on the country, and that’s to declare martial law. While he technically and legally has the power to declare martial law, there would be opposition to it. Part of that opposition would come from Congress, which must support his use of federal forces within the United States, again according to the Posse Comitatus Act.
Looking at all this, the possibility of an effective quarantine is somewhere between slim and none. It would require cooperation across party lines, at all levels of our government. Considering how divided our country is political, that’s not likely to happen.
Where Does this Leave Us?
Although I don’t have access to the president and can’t ask him his reasons for suspending travel from Europe, it seems fairly obvious that the reason for his actions is that he did what he could. Even if he wanted to do more, his hands were tied by the law. And if there’s one thing we can see, looking at the current president’s track record, is that he understands and respects that his power is limited by the law. He might look for a way around the law, but he won’t outright break it.
The upshot is, the federal government can’t protect us. They are doing all they can, but liberty is a two-edged sword. As long as we are free to make our own decisions, we have to take responsibility for them. In this case, that means taking responsibility for our own lives and protecting ourselves.
You and I are going to have to do what’s right for ourselves and our families. Maybe, just maybe, if enough of us do that, this disease will die out and we’ll be able to get back to life as normal. But if we don’t, then we can expect to see the disease continuing on into the next year, infecting and killing people.
In that, COVID-19 is worse than the flu, in that you can catch it over and over again. While people catch the flu several times, that’s because there are so many variants of the flu; so they’re actually catching new strains of it. With the Coronavirus, you can catch the same one over and over again; and each time there’s a risk of it being fatal. That sounds a whole lot worse to me.
So don’t panic, but get ready. The Coronavirus is coming to a city near you; probably very near you. Do what you can, take care of yourself, and hopefully if you catch it, it will only be a mild case. If you do catch that mild case, please stay home and protect everyone else from catching it from you. We’ve all got to do our part to defeat this disease and not allow it to defeat us.