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

Present Reforms to Keep the Ghost of State Questions Past from Creating Future Headaches

Oklahoma, like many western states, allows its citizens to directly participate in the democratic process through citizen initiatives and referendums. In a referendum, the legislature directs a question to the people — usually to modify the state constitution, since the legislature can change statutes itself. An initiative requires no legislative involvement, but is initiated by the people via signature gathering, and can be used to modify statute or amend the constitution. Collectively, the initiatives and referendums that make it onto the ballot are known as State Questions.   Recently, there have been calls to make it more difficult to amend the constitution. At least two proposals are being discussed. One would diversify the signature requirement by demanding that a proportional amount of signatures come from each region of the state. The other would require a sixty percent majority to adopt a constitutional amendment rather than the fifty percent plus one currently in place. Both

Oklahoma Mayors Acted Unlawfully With COVID-19 Orders

In response to COVID-19, the mayors of Oklahoma’s three largest cities subjected their citizens to draconian shelter in place orders, restricting their freedom, damaging them financially, and undermining their constitutional rights. The mayoral decrees were more restrictive than those of the Governor, and in significant ways contradicted his policy. To this day, city-mandated social distancing rules remain in place in Oklahoma City, Tulsa, and Norman that are not required by the state’s reopening plan. The mayors claim that where their rules are more restrictive than the state’s, the city rules apply. Was any of this unilateral mayoral activity legally valid? For the reasons examined in my paper published today, An Argument Oklahoma’s Mayors Acted Unlawfully During COVID-19 , the short answer is no. (A summary of the paper can be found here .) A close examination of relevant city ordinances and state laws governing the mayors’ COVID-19 decrees forces the conclusion tha

If Data Is Supposed to Be Our Guide, the Great Coronavirus Shutdown of 2020 Should End

According to the most widely cited model projecting the course of the coronavirus outbreak, today is supposed to be Oklahoma’s peak in daily deaths. Now is a good time to go back to the beginning of the Great Coronavirus Shutdown of 2020, review the goal of our policy, and assess our current status. If our policy should be “data-driven,” as we are constantly told, then let’s actually look at the data and determine our next policy steps accordingly. Spoiler alert: according to the terms set out by those advocating for the shutdown policy, the policy’s continuance is no longer justified. The stated goal of the shutdown policy was to “flatten the curve” so as to prevent hospitals from becoming overwhelmed with COVID patients. The fear was that the virus would spread so fast that at its peak, the number of cases would exceed the overall capacity of the healthcare system. If that peak could be stretched out over a longer period of time, lives would be saved. This concept was il

When It Comes to the Cox Center, “What if I Get to Meet a Movie Star?” Isn’t Good Enough

In a recent   post , 1889 Institute expounded on the fiduciary duty of elected officials “to act in the best interest of the people of the state as a whole,” a “high duty, executed as a public trust … wherein one puts the people’s interest above one’s own.” This fiduciary duty must not stop with elected officials. Once an elected body or an elected official – the legislature, a city council, the governor, or a mayor – has taken final action, the faithful implementation of each enacted law, policy, or program falls to an army of bureaucrats. Thus, a fiduciary duty to execute laws and policies with diligence and integrity, tantamount to that of elected officials, must extend to government employees. Recently, I had a few moments to sit down and watch a show with my children. Unsurprisingly, my son picked a series entitled “The Stinky and Dirty Show.” I was naturally skeptical that the show would yield any real value. However, as I watched, I found myself pleasantly surprised. Each episod