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Whether it is for the opening or closing of the States the federal government would have the constitutional powers to make those orders. States have the primar
by throwaway_USD 6y ago
Whether it is for the opening or closing of the States the federal government would have the constitutional powers to make those orders. States have the primary authority but essentially at anytime the Federal government could invoke the Commerce Clause.
From an American Bar Association (ABA) article from April 2020:
>Through the Commerce Clause, which gives Congress exclusive authority to regulate interstate and foreign commerce, the federal government has broad authority to quarantine and impose other health measures to prevent the spread of diseases from foreign countries, as well as between states although that has never been affirmed by the courts.
>In 1902, the Supreme Court directly addressed a state’s power to quarantine an entire geographical area. In Compagnie Francaise de Navigation a Vapeur v. Louisiana State Board of Health, the justices upheld a Louisiana Supreme Court decision that the state could enact and enforce quarantine laws unless Congress had decided to preempt them.
https://www.americanbar.org/news/abanews/publications/youraba/2020/youraba-april-2020/law-guides-legal-approach-to-pandemic/ https://www.americanbar.org/news/abanews/publications/yourab...
- AnimalMuppet 6y agoBetween the states. So the President could, for example, close the border between Georgia and South Carolina. But he couldn't, for example, close Georgia internally.
- throwaway_USD 6y agoWell that is how the law reads, but its not how it is applied. Put it this way the federal government uses the commerce clause to regulate everything from farmers growing marijuana; farmer feeding their live stock excess crops they grew; restaurants from discriminating against diners on race; etc... There is no shortage of case law over 200 years showing how States rights have all but completely eroded to the Federal Government through the commerce clause...you don't see many farms or restaurants crossing state boarders but federal government can regulate them on the basis of effecting interstate commerce.
- gamblor956 6y agoThe President could not order Georgia closed internally or close the border between Georgia and South Carolina because the President does not have that power. Congress could pass a law allowing the President to do so in response to health emergencies or other national disasters (a delegation of its powers under the Commerce Clause), but no such law currently exists.
- dragonwriter 6y ago> but no such law currently exists. It could effectively be done under the existing broad quarantine provisions of the Public Health Service Act, especially if it didn't expressly order a lockdown but instead ordered that anyone engaging in the kind of activities that would normally be prohibited in a lockdown was subject to summary detention for examination until shown not to be infectious.
- deleted 6y ago[deleted]
- gamblor956 6y agoThe PHSA only grants the power to quarantine someone who is infected, or reasonably believed to be infected. The PHSA does not grant the Executive the power to issue a broad quarantine that could cover non-infected individuals. https://www.law.cornell.edu/uscode/text/42/264 https://www.law.cornell.edu/uscode/text/42/264
- copenja 6y agoThese are interesting references thanks. The Commerce Clause seems to specifically give the federal government control over people ENTERING the country and people CROSSING state lines, but doesn't seem to address the federal government declaring statewide lockdowns. It does seem that the federal government can issue quarantine orders to individuals suspected of being infected, but again this is directed towards a specific person, and is an actual hard quarantine order. The "Compagnie Francaise de Navigation a Vapeur v. Louisiana State Board of Health" says that the state can enact quarantine laws unless Congress decided preempts them. It seems to handle the opposite case: can the federal government prevent my quarantine? And the answer is only if Congress passes a federal law. This is a big hurdle, because the decision doesn't lie in the Presidents or his administrations hands.
- gamblor956 6y agoNo, Congress has the power to issue a quarantine affecting the states, under the Commerce Clause. The Executive does not, absent a specific law authorizing such a shutdown (i.e., a delegation of Congress' Commerce Clause powers, and no such law currently exists.
- throwaway_USD 6y agoI never once said the Executive.
- dragonwriter 6y agoThe claim being debated was that Trump had the power to declare a national lockdown. Last I checked, Trump wasn't Congress but the head of the Executive branch.
- throwaway_USD 6y agoAt all times I said "federal government," someone else injected Trump into the thread, and the person I replied to replied directly to me saying my statement was wrong not the other poster, but clearly my statement references "federal government" and he says "no Congress." Last I checked, Congress is part of the federal government.