Mr. President: A Federal Quarantine Is Unjustified

            The president has spoken, sort of, announcing hours ago on Twitter that he is considering a quarantine order for portions of New York, Connecticut and New Jersey.  I write from Connecticut, an easy drive from New York City. My message is simple: Don’t do it, Mr. President.

            Creating federal precedent for a public health quarantine would forever darken constitutional doctrine in this country. Long after the COVID-19 crisis has passed, and it will, we will be left with precedent more terrifying than the virus itself.           

            During the influenza of 1917, 650,000 Americans died. We had no federal quarantine. People hunkered down. We marshalled the resources to fight the illness as best we could, and we soldiered on. We did not resort to martial law.

            Under our federal system, the police power, the power to act in the name of the health, safety and welfare of the public, belongs to the state governments.  Asserting a federal police power in a time of crisis is an experiment with lasting consequences. At a time when we should be focusing of combatting disease, the president is considering wasting resources policing the streets.

            It’s crazy. Utter madness. I join the chorus of those wondering whether the president has quite literally lost his mind.

            In a matter of days he’s gone from asserting the crisis will pass to the cusp of a declaration of something akin to martial law.

            You lack the lawful authority to take this step, Mr. President.

            We have from time-to-time lurched in the direction of expanded federal powers in times of crisis. I think of the internment of Japanese-Americans during the Second World War. Years after the war ended, we came to our senses and realized the error.

            Does the president really think it is better to ask forgiveness than permission?

            Will President Trump’ s lasting legacy be the creation of a federal police power?

            When will use it next? To confiscate firearms because each year 40,000 Americans are killed by them? Or perhaps we’ll mandate automatically driven cars, since nearly 40,000 of us are killed in self-driven cars each year?  Or perhaps to harness the nation’s resources to address climate change? Aren’t these public health crises demanding a solution as well?  

           Yes, this is a terrifying pandemic.

            I write this from my home, a place I’ve not left in days. I sit looking with guilt out the window as delivery people leaving things on my doorstep, regarding them as something like heroes for taking risks I won’t.

            And last night, there was a meltdown of sorts among the folks with whom I work. We let each person in the office decide for themselves whether to work from home or alone. Now some feel taken advantage of. Clearly, I didn’t think things through well enough.  

          But who among us has lived through something like this? What are the rules? What is the right thing to do?  

          The virus in our midst will kill thousands. Already nearly 2,000 Americans have died as a result. We’re called to rally together, to stay calm, to work together to fight the disease, find a vaccine, and then begin the work of repairing the damage caused this sad chapter in our lives. But no pandemic justifies altering the fundamental compact we have struck with one another. Disease does not justify damage to the Constitution. When this virus is tamed, we will still be a people bound together by the rule of law.

            COVID-19 is no excuse to amend the Constitution on the fly, by executive decree. President Trump, if you truly care about the Constitution you swore to uphold, then hold fast to fundamental principles of that document. You lack the authority to impose a quarantine. It you enact it, you will have done more damage than the virus ever can do to our way of life.

           The Constitution is not a suicide pact, folks said in the wake of 9/11, when civil liberties were up for grabs in a nation wracked by fear. That fear is more fundamental now – every handshake carries the potential lethal consequence of a suicide bomber.

           But tonight, more than ever, we need a president clear-eyed, courageous and principled. Fight the virus, yes. But don’t abandon principle in the name of panic.

          Viruses come and go. The Constitution was meant to endure crises large and small. It has survived far worse than this. We have a republic; let's see if we can keep it.                

Comments: (8)

  • I applaud you
    I applaud you attorney Pattis for a well written and timely opinion (perhaps Trump indeed lost his mind, if he ever had one).
    How can I add to such an inspiring opinion. Perhaps I will just remind my fellow citizens that the University of Connecticut continued to admit Japanese students during WWII. We did not do then and will not succumb now to bullying by our government of innocent people.
    Posted on March 28, 2020 at 8:23 pm by Moshe Gai
  • The Constitution Is Immune from Covid-19
    The series of constitutional insults by Mr Trump preceding this one allows cure by the elections. This particular insult, however, is so over the line that even a Supreme Court composed in part by a manipulation of the constitutional process for advice and consent will not permit it.
    Fear has a grip on the population, but the constitution is specifically designed to prevent such passing passions from governing us.
    Well said Mr. Pattis
    Posted on March 28, 2020 at 8:39 pm by Jim Bergenn
  • Constitutional Law
    Dear readers
    Re: Tyranny by proxy
    Governments have no AUTHORITY to suspend Constitutional God given rights in this case. Only thru Unlawful insurrection or Invasion can Congress offer a declaration of war in which the President of the United States can temporarily suspend those rights.
    During WW2 and imprisonment of citizens expected of espionage because of family ties to a foreign power was Constitutional!
    The President has full AUTHORITY and EXECUTION to lock up Governors, Mayors, Police Chiefs et al that have created unconstitutional "sanctuary cities" for foreign nationals thereby defrauding citizen taxation and violating RICO statute.
    Posted on March 28, 2020 at 9:52 pm by John Kociuba
  • Well written thank you.
    I hope the President gets to read this and take it to heart
    Posted on March 28, 2020 at 10:05 pm by Shannon Scott
  • Primus Inter Pares
    Well, we can walk into any courtroom in the United States and watch judges violate 3 of 5 Canons. Should we start there?
    Posted on March 28, 2020 at 10:17 pm by John Kociuba
  • President recants
    Hon. Norm pattis,
    Maybe your eloquent piece was like warm honey potion to the President's ear?
    Posted on March 28, 2020 at 10:36 pm by John Kociuba
  • 2020 24/7/365 500%
    You sir just prevented A federal Quarantine. Thank you for your service... I see what he did as sterilized clam chowder for the Democrats to eat upp. His mission right now is exposing evil. Shining light ever so bright. Using the engine of reason through artistic deals. U da man Norris. I DISAGREE with ONLY the notion of you joining the chorus of him going mad as you know we all go through waves of thoughts through our body experience using strategy all day erry day.
    Posted on March 28, 2020 at 10:42 pm by James Stokes
  • Coronavirus ... martial law threat by POTUS
    TV is all virus – all the time. If it were true, it wouldn’t need so much promotion. I turned it all off. Thanks for your letter of sound advice to the POTUS. Hopefully he’ll listen and regain his sanity. Viruses can’t live in the air ... despite the hype that they do! Solomon is not a liar – there’s nothing new under the Sun. Coronavirus is not new, nor deadly. The reported numbers are false. The Lord didn’t give us a spirit of fear.
    Posted on March 29, 2020 at 12:13 am by Carol Blackmon

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