Over the weekend, a viral text message started circulating that claims President Trump will invoke a law known as the “Stafford Act” and implement a mandatory quarantine. There appear to be several variants of this text message, but this one is a representative example:
This is not true. While there is a law known as the Robert T. Stafford Disaster Relief and Emergency Assistance Act, which Trump used to declare a state of emergency over the coronavirus pandemic on Friday, that law primarily allows the federal government to assist states in their disaster relief efforts, or to provide assistance directly to disaster victims. It does not permit the president to unilaterally declare a nationwide quarantine.
Even if the Stafford Act did provide for mandatory quarantines, it would likely be unconstitutional. The Constitution places limits on the federal government’s power to protect the health and physical safety of individuals within the United States, so long as those individuals do not attempt to cross a state border.
The White House, it is worth noting, also denied that Trump intends to declare a “national lockdown.”
Admittedly, so long as Donald Trump is president, the White House is not a particularly reliable source of information. Nevertheless, in this instance, the White House is almost certainly telling the truth.
The Constitution likely does not permit the federal government to impose a nationwide quarantine
To understand the full scope of the federal government’s authority during a public health crisis, it’s helpful to understand how three particular provisions of the Constitution interact. The first is the commerce clause, which permits Congress to “regulate commerce with foreign nations, and among the several states.”
The word “commerce” includes travel, so the federal government can regulate individuals who enter the United States from abroad, or who travel across a state line. For this reason, the federal government does have the power to quarantine individuals seeking to enter the country or to cross from one state into another.
But the government’s power to protect the physical safety of individuals who remain within a particular state is much more limited. Though there is an argument that a pandemic has such a severe impact on the nation’s economy that the federal government has broad powers to combat it, the federal government does not claim such a power. Federal public health laws sometimes permit quarantines for people engaged in international or interstate travel, but they do not permit the president to impose a nationwide quarantine.
The second constitutional provision relevant to the coronavirus pandemic is the 10th Amendment, which provides that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” Among other things, this means that state governments do have the power to implement a quarantine within their borders — although such a quarantine order might be challenged if the government does not provide adequate procedural protections, such as by ordering people into a quarantine without sufficient evidence that such a measure is necessary.
The Supreme Court has also read the 10th Amendment to forbid the federal government from “commandeering” state officials. That means that even if a state government does issue a quarantine order, the federal government cannot dictate the actions of the state law enforcement agents that enforce such an order — though it could conceivably provide assistance to state officials enforcing a quarantine order, so long as it did so with the state government’s permission.
Finally, the Constitution permits the federal government to levy taxes and to use these revenues to “provide for the common defense and general welfare of the United States.” While the federal government may not hand down a nationwide quarantine order, it can provide financial assistance to states seeking to control the pandemic, or provide assistance directly to individuals.
What the Stafford Act actually does
Title IV of the Stafford Act permits the president to declare that a particular crisis is a “major disaster,” and such a declaration does provide the president with new powers that he may use to combat such a disaster. Such a declaration isn’t an unusual event. According to the Congressional Research Service, “the average number of major disasters declared per year from 1953 to 2016 was 35.8.”
Importantly, however, “all requests for a declaration by the President that a major disaster exists shall be made by the Governor of the affected State.” The president, in other words, cannot simply issue a declaration and seize broad new powers. Under Title IV, Trump must act pursuant to a state governor’s request.
Most of the powers available to the president after a declaration of a major disaster involve the power to disburse federal funds (the federal government’s power to spend money is much broader than its power to regulate individuals), or to direct federal personnel to assist ongoing state efforts.
After a declaration of a major disaster, for example, the president may “direct any Federal agency . . . to utilize its authorities and the resources granted to it under Federal law (including personnel, equipment, supplies, facilities, and managerial, technical, and advisory services) in support of State and local assistance response and recovery efforts.”
Admittedly, Title IV does give the federal government a fairly broad ability to assist state officials once a major disaster is declared, and it does permit the federal government to “coordinate all disaster relief assistance.” So if a state government were to hand down a quarantine order, it’s possible that federal officials might help enforce such an order — but, again, these federal officials could only do so if the state governor invites the president to declare a major disaster.
Title V of the Stafford Act, meanwhile, gives the president some freestanding power to act without a request from a state governor. Under Title V, the president may unilaterally declare an emergency, as Trump did on Friday, and he may exercise certain powers after declaring that emergency. But even these powers mostly involve supporting state governments, or providing direct assistance to individuals.
Trump, it should be noted, hasn’t exactly been clear to the American people about the scope of his authority, or about what he is likely to do in the future. He told reporters on Thursday that “We have very strong emergency powers under the Stafford Act,” and that “I have the right to do a lot of things that people don’t even know about.” It’s easy to see how a rumor got started that he plans to take drastic, illegal action under the Stafford Act.
But, for now, at least, it’s just a rumor.