Skip to main content

Can Government Force You to Close Your Business?


1889 Institute takes no position on whether any or all of these measures are warranted or necessary, or whether their economic fallout would inflict more human suffering than they prevent. We are simply evaluating whether they are legal. 

With the unprecedented (in the last 100 years at least) reaction surrounding the outbreak of Covid-19, questions that few living legal scholars have considered are suddenly relevant. 

    • Can a quarantine be ordered? 
    • Can a mass quarantine, lockdown, or “cordon sanitaire” be ordered?
    • Can businesses be ordered to change their behavior? 
    • Can businesses be ordered to close?
    • Can state governments order these measures?
    • Can local governments order these measures?

My legal brief addresses these issues from a statutory point of view; it is clear that state law gives the governor and mayors broad authority in a state of emergency. They must, of course, do so in a neutral way that they reasonably believe will help prevent the spread of infection. They cannot order quarantine of registered voters from the opposite political party while their own supporters remain free to go about their lives as usual. Nor could they nationalize the auto industry and force them to build tanks when the emergency is a microscopic virus. The less certain question is whether there is constitutional authority for extreme measures like quarantines. 

Those familiar with the 1889 Institute and our goal of limited, responsible government may be surprised to hear that we answer most of these questions with a “yes.” There really is not much to debate about whether someone in government has the powers listed. Quarantine powers have been part of the general police power since before Christopher Columbus’s famous voyage. America’s founders would not be surprised that the quarantine power was being invoked today, but rather at how sparingly the power has been used in the last century.  

When evaluating whether government actors may take an action, both statutory and constitutional authority must be considered. Statutory authority is fairly clear. State and federal statutes give broad quarantine powers to federal, state, and local officials. 

Constitutional Authority

While nothing in the U.S. Constitution explicitly grants these powers to the federal government, that does not necessarily mean they are unavailable. There are two possible legal bases for such an authority: the commerce clause, bolstered by the necessary and proper clause, could be (and has been) read to imbue the federal government with authority to wield great power to combat a pandemic crisis. In practice, this power has been used primarily to restrict those entering the country from abroad. 

The expansive view of the commerce clause - essentially that all aspects of economic life, and even public health and safety, eventually impact the stream of interstate commerce, and therefore falls to the federal government to regulate - has been criticized by originalists and small government advocates alike. If the founders had intended to give congress such sweeping powers, they would not have gone through the dog and pony show of the constitution and its federal model. There would be no reason to pretend that the federal government is one of limited and enumerated powers, unless the intent was to deceive the ratifiers, in which case their consent was based on a fraud, and was not freely given. No, it must be the case that wheat stored for personal use is not interstate commerce. Thus, the much of the new deal illegitimately seized power for the national government. 

So then, what is the basis for a domestic quarantine power? I mentioned two possible legal bases for the quarantine power: the second, and proper location is in the inherent police power of state and local government. The founders would have agreed that state and local authorities could properly force the sick to avoid infecting the healthy. They would agree that, under dire enough circumstances, people could be forced to shelter in their homes in order to keep those who were contagious, but not yet showing symptoms, from spreading sickness. This power was in the standard definition of a quarantine power, at least by the 1800’s. In case after case, dating to well before the national government expanded beyond the wildest dreams of the founding generation, the Supreme Court affirms that states have an inherent and expansive power to order quarantine. 

The recent lockdowns and forced closures are undoubtedly disruptive. They are undoubtedly disheartening. They are undoubted harming the economy, to a degree we don’t yet know. But they are also, undoubtedly, legal. 
Mike Davis is a Research Fellow at 1889 Institute. He can be reached at mdavis@1889institute.org. 


The opinions expressed in this blog are those of the author, and do not necessarily reflect the official position of 1889 Institute.

Popular posts from this blog

Be Careful What You Wish For

The state of Oklahoma has California in its sight s . People and businesses seeking greater opportunity are fleeing California, and justifiably so. The most humane thing for Oklahoma to do is open our borders and offer economic asylum to the oppressed refugees of the People’s Republic of California. However, I urge caution. In an age dominated by masked faces and super-sensitivity to the spread of viral conditions, I suggest the California Condition (condition) should be met with great trepidation.   What is the condition? It is the virulent spread of tyranny and oppression. Common symptoms include limited freedom and mobility accompanied by exorbitant costs of living, energy, doing business, and pretty much everything else. Those suffering under the condition often experience a diminished capacity for reason. Uncommon symptoms may include fever and fits of rage. The condition is progressive. It tends to worsen as reason diminishes and illogic consumes the mind. Many that experienc...
Read more

Higher Home Prices, Brought to You by Oklahoma's Occupational Licensing Machine

Increasingly, people across the ideological spectrum recognize the costs of occupational licensing. Almost since its inception, the 1889 Institute has highlighted several of the least justifiable licensing regimes in Oklahoma. Each individual license may seem, if not harmless , then at least only slightly harmful on its own. But the effects add up. It is estimated that licensing costs $203 billion each year, and results in up to 2.85 million fewer jobs nationwide. One of the principle ways Americans build lasting wealth is through home ownership. So a license that interferes with this process is particularly galling.  The transaction costs of buying and selling a home in Oklahoma are too high. This is not a matter of opinion, like “the price of gas is too high” or “the luxury goods I would like to own cost too much.” It is an empirical fact. The way Oklahoma regulates the Abstracting and Title Insurance industries tangibly and demonstrably impacts the cost of buying...
Read more

I Abstain: Why I Refuse to Vote in Judicial Retention Elections

Over a million Oklahomans voted in the recent November 3rd election. For most, the presidential race between Joe Biden and Donald Trump is what drove them to the polls. However, some were likely confused when they reached the bottom portion of their ballot marked “Judicial Retention Elections.” What are judicial retention elections? Every two years, certain judges are placed on the ballot for a simple yes/no retention vote. These elections stem from Oklahoma’s   judicial selection method , and ask voters whether they want to keep, or retain, certain judges. Elections are staggered so judges only face retention every six years. Many claim that the merit selection method is a more sophisticated, apolitical judicial selection method than the federal model or the partisan election model, but in reality it is   much worse   than either of the two. In essence, the retention vote was a patronizing attempt to make “merit” selection more palatable to   voters back in the...
Read more

The Truth About COVID-19: Better Than You Think

As the media turns its attention back to COVID-19, there is a renewed push to shut down the economy. Some states have even begun to scale back reopening plans for their economies; others continue to delay opening. It is essential to look past their catastrophizing and focus on the facts of COVID-19. One fact to consider: while testing has risen 23%, the rate of positive results has only risen 1.3 percentage points to 6.2%. Even as alarmists point to the rise in cases, they still admit that the boost in testing has played a role in the rise in the total number of known cases. Therefore, the total number of positive cases is not of much use in this case, as it only paints a partial picture. The rate of increase in total positive cases is a more meaningful measure, and it has barely increased. Even more important is who is getting infected. The data show that recent cases are primarily younger people. But that’s a good thing; these are precisely the people that are key to building herd ...
Read more