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Under the Commerce Clause of the Constitution, the federal government has the power to regulate interstate and foreign commence, but the 10th Amendment and 200 years of case law give each individual state government the primary authority to control the spread of dangerous diseases within its jurisdiction, including the authority to make public health emergency decisions, such as setting quarantines and making business restrictions.

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Here is what a state governor can do:

The public health police power allows the states to pass and enforce isolation and quarantine, health, and inspection laws to interrupt or prevent the spread of disease.

  • Order quarantines to separate and restrict the movement of its residents who were exposed to a contagious disease to see if they become sick.
  • Direct those who are sick with a quarantinable, communicable disease to be isolated from people who are not sick.
  • Order residents to stay at home except for those doing essential work, such as food processing or necessary medical needs. If someone tests positive for COViD-19, for example, and refuses to self-isolate, state officials can obtain a court order forcing him to isolate, and post a law enforcement officer outside his home, as was recently done in Kentucky.
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In 1824, in the Supreme Court case of Gibbons v Ogden, in a unanimous ruling, Chief Justice Marshall cited the 10th Amendment in saying that police powers are largely reserved to the states for activities within its borders. He explained that those police powers include the ability to impose isolation and quarantine conditions, and that quarantine laws "form a portion of that immense mass of legislation which embraces everything within the territory of a state not surrendered to the general government."

In 1902 the Supreme Court further held that a state could exclude healthy persons from an area populated with persons with a contagious or infected disease, whether or not the persons came from within the state or not. Thus if a state has decided not to quarantine and has opened its borders to everyone, California, if it wished, could prevent persons from such states from entering California if we are still under quarantine and "shelter in place" orders.

The doctrine of state "police power" was adopted in early colonial America from firmly established English common law principles mandating the limitation of private rights when required for the preservation of the common good. The public health police power allows the states to pass and enforce isolation and quarantine, health, and inspection laws to interrupt or prevent the spread of disease.

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ted vaill

Ted Vaill

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