Quarantine is a Power of the People, Not Executives

Printed from: https://newbostonpost.com/2020/05/17/quarantine-is-a-power-of-the-people-not-executives/

This is our responsibility. Before COVID-19, we the people lost our willingness, and yielded our powers, to make hard decisions. Now we have lost confidence in the experts and executive officials to whom we delegated our powers. But it’s no too late to learn from our mistake.

We are all discussing what our president, governors, mayors, and other executive officials should have done differently. But that is the wrong question. A better question is why executives made all the decisions in the first place. The task of deciding when to activate quarantine, war, or other emergency powers belongs to us, the people. After all, it is our lives, health, livelihoods, businesses, vocations, and liberty that are at stake.

In our constitutional tradition, we exercise our power to proclaim a war or quarantine, to state its objectives, and to declare its lawful limits in our institution, the legislature. That is where our elected representatives consider all the relevant goods, costs, and likelihoods; deliberate together about what is to be done; and then choose a plan of action. As the Wisconsin Supreme Court explained this past week while striking down Wisconsin’s executive prohibition against “non-essential” business and travel, the power to make rules governing the whole people is inherently a legislative power; the power to enforce those rules within the limits of law belongs to the executive.

Incrementally in recent decades, we handed over our powers of self-governance in times of emergencies to experts and executive officials. Now many of us seem disappointed to learn what generations of Americans before us knew from history and experience — that we cannot prevent all death and calamity, and that our princes are often no better than we at choosing among bad options.

American executive officials today call upon the best experts in the history of the world, whose understanding of disease and treatment is built upon insights that scientists and innovators have accumulated over several centuries. Yet expertise is not the same as practical wisdom. And information is not the same as knowledge.

Health experts and medical professionals can tell us what Coronavirus is and how it spreads. But their theoretical models do not always yield accurate predictions. And they cannot agree on a plan of action. This is not their fault. They are trained and qualified to tell us what is the case, not to tell us what to do.

The executive officials whom they advise have not done much better. To shut down an economy and destroy fragile civic institutions is to put human lives at risk, here and abroad. So, there are deaths to be counted on both sides of the quarantine ledger. But some governors dismiss concerns about the costs of lockdown, and deem certain occupations to be non-essential.

It seems that our princes can do nothing right. But in truth, the fault is ours. We expected them to do our job for us, to decide how best to care for our neighbors. And we demanded an ideal end state when all we can achieve is the least bad outcome.

Legislative abdication is not only unwise, it also empowers officials to ignore the law. Quarantine is a legal term of art. A lawful quarantine is a temporary period, literally forty days, during which some law or laws are suspended in their application to a particular person or group, such as a recent widow who is permitted to remain in her deceased husband’s estate, or persons temporarily confined to a house or ship infected by plague.

The power to suspend application of the law, even temporarily, is not to be handed over to executives lightly. And its use should be targeted to a particular, well-reasoned objective. The framers of American constitutions would have marveled to see how our governors are using the quarantine power without legislative oversight, clear goals, or legal limits.

Had our state legislatures done their job earlier, we might have avoided executive overreach and the protests it has occasioned. Our legislatures may have eschewed overbroad and lawless measures. We might have established outcomes for particular lockdowns and thus better measured their efficacy.

Before the next pandemic arrives, or before the next wave of this one, our legislative assemblies should reclaim their responsibility and power to proclaim and specify the terms of quarantines. There is no risk-free, costless path forward, either for individuals or for political communities. There will be unintended losses no matter what we do. But legislatures are best able to hear publicly from experts, planning professionals, and the public, to deliberate transparently, and to select a course of action that may do the least harm and some good.


Adam J. MacLeod is Professor of Law at Faulkner University in Montgomery, Alabama and Professorial Fellow of the Alabama Policy Institute.