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 

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

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 1960s . Unfortunately,

Why I Am Not Pro-Business

Most who consider themselves conservative, even many with libertarian leanings, are comfortable with describing themselves as pro-business. Not me. Don’t get me wrong. Just because I’m not pro-business doesn’t mean I’m anti-business. I’m pro-free enterprise, but that’s different from being pro-business. Chambers of Commerce across the nation are pro-business. They are established to represent their various business members, with large corporations usually the most influential amongst their numbers. Chambers of Commerce almost always favor measures that subsidize businesses, give special tax breaks to businesses, or exempt businesses from regulation, even when these measures favor only specific industries. Here is one example. Pro-business interests favor special discretionary funds at the state and local levels that are used to pay businesses to locate within the government’s jurisdiction. Often called “closing funds,” they allow the ruling class to take credit for cr

Cronyism: Feature, Not a Bug, for Used Car Dealer Licensing

Used car dealers in Oklahoma are governed by the Oklahoma Used Motor Vehicle and Parts Commission (UMPV). Like most licensing boards, it is made up of industry insiders. The UMVP's stated mission is to protect consumers from harm, but its structure and history indicate that its primary concern might be protecting licensed dealers from competition. This, of course, is the prime directive of all licensing boards. My recent paper deals with the licensing of used car dealers.   The person hit hardest by this is the hobbyist, especially in times of economic turmoil.   Imagine someone stuck at home due to coronavirus. We'll call him Frank. He can’t work due to the economic shutdown. Unfortunately, Frank’s lack of work does not mean he no longer has to put food on the table for his family. Fortunately for him, he is able to find a good deal on a used car that needs a little work. Frank has all the tools and garage space necessary to fix up the car and isn't violating any quar

The Sheriff of Nottingham Would Expand Medicaid

Robin Hood is famous for “taking from the rich and giving to the poor,” but the rich from whom he took were the Sheriff of Nottingham and his buddy, the usurper Prince John, and their cronies. The poor who benefitted from Robin Hood’s supposed brigandage were common folk subjected to the oppressive yoke of high taxes that the evil Sheriff and corrupt Prince distributed to their rich cronies in order to stay in power. Little is more evil than using government’s monopoly of force to take from those of modest means to create and serve a wealthy privileged class. Robin Hood was a freedom fighter, not a revolutionary. He didn’t grant largesse to the poverty-stricken masses toiling in an exploitive economic system after he robbed rich capitalists. He gave the common people their own hard-earned money first stolen from them by a corrupt government. Health Care: Crony Industry Over one-sixth of the nation’s economy is devoted to health care. Of the top-20 average-salaried occupations