I. Introduction

On November 7, 2020, the United States had over 9.5 million reported cases of Coronavirus Disease 2019 (COVID-19) resulting in over 230,000 deaths.[1] These statistics rank the United States as one of the worst developed countries in the world in terms of cases and deaths per capita.[2] While the breadth of quarantine power has traditionally belonged to the states,[3] a majority of Americans blame the federal government for its failure to properly address COVID‑19 and its spread.[4] Particularly in terms of federal power regarding intrastate quarantine or a nationwide mask mandate, members of the federal government—including both candidates for the 2020 presidential election—appear uncertain of its bounds.[5] This uncertainty was even projected in nationally televised events like the 2020 vice‑presidential debate, where candidates dodged the question of whether or not the federal government can intervene in intrastate quarantine.[6] This uncertainty, however, is not unfounded. Despite intrastate quarantine power having been historically held at the state level, the severe impact COVID-19 had on the U.S. economy and military is of such historic level as to warrant precedential change.[7]

This Comment will therefore answer two questions: First, if the power to enforce intrastate quarantine has traditionally belonged to the states, does the scope and magnitude of the impact of COVID-19 on the United States open the door for greater federal intervention by both the Legislative and the Executive Branches? And second, if the federal government can intervene, should it?

This Comment will answer these questions in four parts: First, this Comment will briefly overview the legal history behind intrastate quarantine power in the United States as it stands and how state and local health authorities currently operate.[8] Second, this Comment will analyze how the federal government would likely make a strong case for gaining intrastate quarantine power in the case of COVID-19 through Congress’s powers under the Commerce Clause and executive emergency powers.[9] Third, this Comment will compare the Unites States to other federalist countries with similar health systems to assess if the federal government should intervene and why.[10] Fourth, this Comment will conclude with a recommendation on whether the U.S. federal government should intervene in intrastate quarantine now and commentary on the timelessness of this issue for future pandemics.[11]

II. Federal Quarantine Power as It Stands

A. History of Quarantine Power

The power to regulate intrastate quarantine “has hitherto been exclusively exercised by the several States.”[12] While the issue in Gibbons v. Ogden was not about quarantine,[13] the Court’s dicta is an early example regarding a state’s exclusive power to enact intrastate quarantine, which has remained and was reaffirmed as recently as 2016.[14] This holding derives from the 10th Amendment to the Constitution, for “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”[15] Quarantine law—while commercial in nature—has historically fallen within the lines of the policing power of the states and has avoided regulation by the federal government for the fear that if it were considered commerce, “almost all the concerns of life” would be.[16]

Since Gibbons in 1824, the state power to regulate quarantine has ranged from isolating a single individual to forced vaccination and preventing residents of a city from traveling to a neighboring state by the end of a shotgun.[17] The power for the federal government to regulate quarantine, however, has been more limited, with Congress’s power to regulate interstate quarantine being derived from the Commerce Clause and Tax and Spending Clause of the Constitution.[18]

The Public Health Service Act and the Disaster Relief and Emergency Assistance Act are the statutory authorities that currently govern federal quarantine powers.[19] It is under the Public Health Service Act that the Center for Disease Control (CDC) has the ability to impose federal quarantine “to prevent the introduction, transmission, or spread of communicable diseases . . . from one State or possession into any other State or possession.”[20] Although the authority to impose intrastate quarantine has historically belonged to the states, congressional mandate allows for the Executive to intervene via the CDC whenever it deems “measures taken by health authorities of any State or possession (including political subdivisions thereof) are insufficient to prevent the spread of any of the communicable diseases from such State or possession to any other State or possession.”[21] While this authority exists under statute, “[t]his extensive use of federal quarantine powers has no modern precedent,” nor has the CDC exercised this authority in modern times.[22]

This Comment will argue below that the same constitutional authority that allows Congress to regulate interstate quarantine could—in the event of a COVID-19 scope pandemic—open the door to federal intrastate quarantine powers as well.[23] Furthermore, this Comment will argue that current quarantine statutory authority granted to the Executive, in conjunction with the Executive’s emergency powers, could also open the door to federal intrastate quarantine in the case of COVID-19 and future pandemics like it.[24]

B. Current Operation by State and Local Health Authorities

The separation of power between states and the federal government and the emphasis of state autonomy regarding quarantine laws is reflected in the variety of state and local health governance structures in the United States,[25] and is a common feature in other federalist countries as well.[26] In the United States in particular, there are over 2,600 state and local health departments.[27] The role of these local departments in a pandemic is to facilitate intrastate quarantine through their efforts to “investigate contagious disease outbreaks, coordinate control efforts, and provide public information.”[28]

Texas, in particular, has what the CDC considers a “largely decentralized” governance health structure.[29] Under this structure, local health authorities have “supervisory authority and control over the administration of communicable disease control measures within their jurisdiction unless specifically preempted by the state.”[30] During a public health emergency, however, these responsibilities are shared with the Executive Commissioner of the Texas Health and Human Services Commission and the Commissioner of the Texas Department of State Health Services.[31] Although local health authorities must be reputable professionals “legally qualified to practice medicine in [the] state,”[32] their authority may be preempted by the Texas Governor in the case of—or in imminent threat of—a disaster.[33]

In the case of COVID-19 in Texas, Governor Greg Abbott encouraged local health authorities to prepare for the impending spread of COVID-19 and on March 13, 2020, declared a State of Disaster for the entire state.[34] Soon thereafter, Governor Abbott announced the phased approach Texas would take to reopen businesses that were initially shut down from the State of Disaster, and through a series of executive orders, ensured that businesses stayed open, albeit with limited capacity.[35] Whereas Texas’s devotion to keeping businesses open has mitigated economic decline from the pandemic, it has also delayed a full economic and pandemic recovery by failing to contain the transmission of COVID-19.[36] And while Texas’s choice to stay open may have been beneficial to the state’s businesses, many other states responded differently, and “[l]ax stay-at-home orders in one area may foil much stricter measures in a neighboring [state].”[37]

Due to inconsistencies amongst state and local health governance between states, the United States’ federalist health system caused numerous issues in the face of this global pandemic. With inconsistencies in quarantine, residents of neighboring states are more likely to travel farther to seek goods and services that are available in one state but not in their own.[38] This travel creates contacts that would not have otherwise occurred, potentially increasing the very transmission states were aiming to prevent.[39] Not only do variations in neighboring states’ responses adversely impact one another but inconsistencies in data reporting amongst states cause an inability to track the virus and react appropriately to its spread.[40]

While it is apparent that the United States’ federalist system is failing to stop the spread of COVID-19, what is less apparent is whether a federalist health system itself is the problem. Below, this Comment will analyze other federalist countries’ responses to the COVID-19 pandemic as a tool of assessing whether this is the case.[41]

III. Can the Federal Government Intervene?

A. Congressional Intervention

Article I, Section 8 of the Constitution grants Congress its power to regulate commerce.[42] The Supreme Court in United States v. Lopez categorizes this power into three sections: regulating the channels of interstate commerce, regulating the instrumentalities of interstate commerce, and regulating activities having a substantial relation to interstate commerce.[43] Under the third section, intrastate economic activity that “substantially affects” interstate commerce is viewed as falling within Congress’s power to regulate under the Commerce Clause.[44] While the impact of COVID-19 on the economy is far‑reaching, the analysis of whether the impacts of intrastate quarantine are substantially related to interstate commerce is critical to determining if Congress can intervene.[45] Heart of Atlanta Motel, Inc. v. United States and Katzenbach v. McClung are two of the pinnacle cases that make up the framework by which the Supreme Court determines whether intrastate economic activity falls within this substantial relationship.[46]

Both Heart of Atlanta and McClung involve Congress regulating what appears to be strictly local activity—the discrimination against Black patrons in local businesses—but the Court concludes the activity does in fact affect interstate commerce.[47] The Court concludes this in both cases by looking at the impact these local activities have on interstate commerce, particularly on the airline industry and restaurant supply chains, and finding that Congress had a rational basis to regulate given the substantial relationship these activities had with interstate commerce.[48] Currently, the failure of states to properly quarantine within their local communities has led to a perpetuation of COVID-19 in the nation as a whole and has drastically impacted travel between states.[49] Not only does the prominence of COVID‑19 affect citizens’ willingness to travel for fear of infection but also hinder state‑by-state laws that have differing requirements for travel that can nullify a willingness to travel amongst the populace.[50]

1. Economic Impact: Airlines and Restaurant Industry.

The effects of this failure to quarantine have been felt tremendously by the airline industry from layoffs to profit loss.[51] In quarter three of 2020 alone, Boeing reported $449 million in losses, while U.S. airlines reported losses in the billions of dollars.[52] The existence of COVID-19 impacts airlines not only in the number of people willing to travel but also in their ability to fly passengers safely, as most airlines have decided to operate their airplanes at well below max capacity.[53] If the effect of the discriminatory operation of motels on the airline industry was sufficient for the Supreme Court to find a substantial relationship in Heart of Atlanta, it reasonably follows that the Court would find a substantial relationship between COVID-19 and intrastate quarantine’s effect on the airline industry in this instance as well.

Failure to quarantine and mitigate the spread of COVID-19 has also devastated the U.S. restaurant industry.[54] In an attempt to mitigate the spread of COVID-19, many states have implemented measures from total shutdown to take-out only or limited capacity, ultimately resulting in conditions unfeasible for restaurants to stay open.[55] Even within the first three months of the pandemic, “3% of restaurants have permanently closed as a result of COVID-19.”[56] While the closure of restaurants alone might not be enough to link COVID-19 quarantine to interstate commerce, the direct tie these restaurants have with industry supply chains likely does.[57] Not only did restaurant closure from COVID-19 restrictions affect interstate supply chain demand but also COVID-19 outbreaks in the slaughterhouse workforce caused numerous supply chain deficiencies through temporary and indefinite closures of meat producers nationwide.[58]

When viewed through the lens of Heart of Atlanta and McClung, it appears Congress would have a rational basis for regulating intrastate quarantine during a pandemic of COVID-19 proportion. Some may argue that regulating intrastate quarantine would be regulating noneconomic activity like that of United States v. Morrison and United States v. Lopez, but when viewed under its historic impacts on interstate industries like airlines and restaurants, this appears not to be the case.[59] The Court in Lopez found regulation of firearms in schools as outside of Congress’s Commerce power because to find firearms in school zones substantially related, the Court would “have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States.”[60] In the instance of COVID-19, the Court need not take a single inferential step as the economic impacts of intrastate quarantine on interstate commerce are clear and far-reaching.

2. Broccoli, Necessity, and Properness.

When looking at the scope of federal intrastate quarantine power, actions like a mask mandate might be viewed as beyond the scope of federal intervention under the reasoning of National Federation of Independent Business v. Sebelius. There, the Court found that under Obamacare, the “individual mandate forces individuals into commerce precisely because they elected to refrain from commercial activity” and is therefore an unconstitutional use of Congress’s Commerce power.[61] Like the Court’s argument that you can’t force someone to buy broccoli, some may argue that Congress could not force people to take action vis-à-vis wearing a mask.[62] Where this argument fails, however, is that by intervening in intrastate quarantine, Congress would not be forcing people into commerce but rather would be regulating how people interact in commerce during a limited time—a pandemic—where the threat to interstate commerce is extraordinarily heightened.[63] Mandating that people wear masks or that businesses require patrons to wear masks when engaging in public commerce (e.g., eating at restaurants, buying groceries, traveling on public transportation, etc.) does not force those people to wear masks but simply creates a temporary stipulation to engage in commerce for the protection of interstate commerce. Like that of quarantine and isolation measures, a mask mandate would be reasoned upon the same substantial relationship economic grounds discussed in this section.

A final critical step to this analysis is determining whether or not Congress’s action in intervening in intrastate quarantine would be necessary and proper.[64] United States v. Comstock gives a modern definition of Congress’s authority under this clause as “broad power to enact laws that are ‘convenient, or useful’ or ‘conducive’ to the authority’s ‘beneficial exercise.’”[65] The Court goes further to define its test for whether something is necessary and proper as looking to see “whether the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power.”[66] As detailed above, intrastate quarantine during a pandemic of COVID-19 proportions has a direct effect on interstate commerce. By intervening to ensure that states adhere to CDC guidelines, Congress would be intervening in a way that is directly related to their enumerated powers under the Commerce Clause.

It may be argued that Congress’s intervention would be improperly infringing upon states’ historic police and quarantine power.[67] However, the Court in Comstock addresses this argument. In Comstock, the Court reasoned that even though the power to criminalize and imprison individuals is not explicitly mentioned in the Constitution and appears to be a power of the states, in order to ensure the enforcement of federal criminal laws, Congress can erect prisons within any jurisdiction and, with that prison system established, can “ensure that system’s safe and responsible administration.”[68] Under the Commerce Clause, Congress has and must be given similar power. Where intrastate quarantine leads to unsafe and irresponsible administration of interstate commerce, it is necessary and proper for Congress to intervene.

Therefore, it is likely that Congress can regulate intrastate quarantine under the Commerce Clause in the case of a pandemic that impacts the economy to the degree that COVID-19 has. While this intervention would break the history of the Supreme Court’s acquiescence to states regarding intrastate quarantine, the substantial relationship that intrastate quarantine has to interstate commerce in the case of COVID-19 warrants this shift in precedent.

B. Executive Intervention

Though the express powers of the President are outlined in Article II of the Constitution, Youngstown Sheet & Tube Co. v. Sawyer and Dames & Moore v. Regan clarify what these powers look like in times of emergency, and these cases can be applied to help determine whether the Executive Branch could act to intervene in intrastate quarantine.[69] Both Youngstown and Dames & Moore define presidential powers as powers that are “not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress.”[70] Congress is the maker of laws, and the President “shall take Care that the Laws be faithfully executed.”[71] It is through this relationship between the Executive and Legislative Branches that Justice Jackson finds his three tiers of presidential emergency power in Youngstown, a tiered system that is recognized and elaborated on by then-Justice Rehnquist in Dames & Moore.[72] The most important of these tiers for this Comment’s analysis is the first, stating, “When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.”[73]

1. Express or Implied Authorization.

As explained above, the Public Health Service Act and Disaster Relief and Emergency Assistance Act govern federal quarantine powers.[74] Taken separately or together, these acts appear to create the express or implied congressional authorization that Justice Jackson required to put the Executive in its first tier of emergency power. A failure to properly mitigate the spread of disease by local health authorities has created a perpetuation of COVID-19 that has not only led to infection of people across state lines but also led to the detriment of interstate commerce.[75] Numerous states have taken measures contrary to the CDC’s guidelines that have directly correlated to increased infection rates in their localities and a perpetuation of COVID-19 throughout the nation.[76] Through interstate travel and commerce, infection has traveled from states with high infection rates to states with low infection rates, despite state authorities’ best efforts to mitigate this.[77] It is in situations like this that Congress contemplated the intervention of the Executive into intrastate quarantine. In pursuance of this statutory authority, the Executive would likely be well within its power to legally intervene.

2. Zone of Twilight.

Although it appears that the CDC could intervene in intrastate quarantine through express congressional authorization, a more difficult question is whether the President could intervene under Justice Jackson’s second tier, via the President’s express powers as the “Commander in Chief of the Army and Navy of the United States,” and via the “federal government’s [implied] responsibility to protect the nation from external threats.”[78] Justice Jackson’s second tier is a less clear zone where the President’s independent powers are weighed against “congressional inertia, indifference, or quiescence,” where “any actual test of power is likely to depend on the imperatives of events and contemporary imponderables.”[79]

The question in the case of COVID-19 could likely be framed as whether the pandemic’s prolongation from inadequate handling by local health authorities has detrimented national security to the degree as to warrant intervention by the Executive. As the Commander in Chief of the U.S. Armed Forces, the President is in the best position to assess this risk to national security, and presidents in the past have acknowledged the inherent risk disease could have on national security.[80] Though the full impact COVID-19 is having on the U.S. Military will likely never be entirely known by the public, many instances of its impact have been published.[81]

Through these publications, it seems apparent that COVID‑19 is a risk to the effective operation of the U.S. Armed Forces. Within the first few months of the presence of COVID‑19 in the United States, training operations with allies were canceled, naval warships were docked as crews were quarantined, and basic training operations to bring in new recruits were reduced or shut down.[82] Due to the integration of the military with the civilian populace, the effectiveness of intrastate quarantine measures directly affects unit readiness.[83] From the outset of the outbreak, the military considered not only restricting peacekeeping operations abroad but also reducing coordination with allied nations.[84] Despite it rarely seeing media attention, the United States has been, and still is, in a state of international conflict via the War on Terrorism, and the ineffectiveness of the military’s ability to operate puts our national security at risk.[85]

In Youngstown, the Court found a President’s power to regulate civilian affairs on the basis of national security moot; however, this determination was made largely due to the President acting in violation of a congressional mandate.[86] In the case of COVID‑19, Congress can be seen as having acquiesced power to the President in circumstances of inadequate intrastate quarantine through the CDC.[87] By doctoring the Public Health Security and Bioterrorism Preparedness Response Act of 2002, Congress admittedly contemplated the effects of disease on national security and recognized its risks, yet still maintained the CDC’s ability to intervene in intrastate quarantine if local authorities were ineffective.[88] Further lending support to the President’s powers in national security is the still-valid holding in Hirabayashi v. United States.[89] While many instances of Japanese internment have been found unconstitutional, the holding from Hirabayashi—that the President has the power to impose curfew or detain for national security—still remains.[90] Though the current risks of COVID-19 to national security might not warrant strict curfews or detention, its severity likely does allow for less debilitating regulations in compliance with CDC guidelines.

Thus, it is likely that the Executive has two possible paths towards intervention. Under Justice Jackson’s first tier, the Executive could likely intervene under the statutory authority granted to it by Congress. Furthermore, while less clear, there is an alternative argument that the Executive could also intervene under Justice Jackson’s second tier through emergency authorization given the impact of COVID-19 on the U.S. Armed Forces.

IV. Should the Federal Government Intervene?

While it may be likely that the federal government could intervene in intrastate quarantine, a perhaps equally as important question is whether it should. In answering this question, it is first necessary to determine whether a federalized health system itself is inherently at issue, or if such a system is merely problematic given the political environment of the United States today. To answer these questions, this Part will compare the success other countries with similarly structured federalized health systems have had in combating the spread of COVID-19 to that of the United States. This Part will then explore what appears to be the major difference between the approach of these countries in their response to COVID-19 and that of the United States. Finally, this Part will weigh the pros and cons of a federalist system in pandemic response before concluding whether the U.S. federal government should intervene.

A. Is Federalism the Problem?

When looking at other federalist countries that rely on local federalized health authorities, it appears that federalism is not the problem. Canada, Germany, and Australia are all federalist countries with federalized local health authorities, and all have done significantly better than the United States on handling COVID-19.[91] The United States ranks number one in the world for highest cumulative number of cases and, when compared to Canada, Germany, and Australia, has over 3.5 times more cumulative cases per million population than the worst of these three countries, and over 2.5 times more deaths per million population.[92]

Of the three previously mentioned countries, Canada is the closest neighbor to the United States geographically, but it is far from the United States in terms of COVID-19 response success. In Canada, “most health emergencies or crises are dealt with at the municipal and provincial level,” and most of these municipalities have passed their own health acts that govern their local areas during a pandemic.[93] While there is coordination with the federal government, each province and territory has its own reopening plans.[94] Australia and Germany also have very similar structures to the United States. In Australia, “[t]he National Health Security Agreement recognizes that state and territory governments have ‘primary responsibility for the public health response’ to public health events within their own jurisdictions.”[95] Like the United States, Australia’s federal government’s primary responsibility concerns interstate and international quarantine.[96] As a highly federalized country, Germany also implements a local public health strategy, where “the responsibility for public health lies primarily with intermediate and local public health authorities in 16 federal states and approximately 400 counties.”[97]

When looking at the success of these countries’ responses to COVID-19, it appears that a federalist health system in and of itself could hardly be the problem. Both Germany and Australia rank among the best first-world countries in terms of COVID-19 response, with Australia having one of the lowest rates of infections and deaths per million capita in the world.[98] Understanding that federalist public health structure is not inherently the problem, the next question that begs answering is what makes the United States different than these countries that led it to be so unsuccessful at containing the spread of COVID-19.

B. If Not Federalism, Then What Is the Problem?

The key difference between the United States’ response and that of comparable nations is its disunity amongst states in preventing the spread of COVID-19. Where other nations have unified and found partisan consensus on approaches to mitigating the spread of COVID-19, the United States has faced political polarization.[99] Where leaders in other federalized nations have presented a unified message, the message of the United States’ leaders has been disjointed.[100]

Canada, Germany, and Australia have all warranted their success to collaboration amongst local health authorities and their federal governments. In Canada, studies show that the three national parties presented “a united front on the nature and severity of the COVID-19 pandemic.”[101] In Australia, national and state governments followed scientific guidelines from the beginning, fostering “relatively harmonious decision-making between the Commonwealth and the states.”[102] Germany was also effective, as it maintained transparency, communication, and collaboration amongst states despite having varied approaches.[103]

Given the need for social and economic sacrifice in order for quarantine to be successful, unity amongst political elites is paramount to avoid polarization of the public.[104] In the United States, political unity on the COVID-19 pandemic is pitiful, and partisanship is the most consistent predictor of how an American will respond to public health guidelines.[105] A recent study found that “Republicans are less likely than Democrats to report responding with CDC-recommended behavior,” and that Democrats are more likely to change their personal health behaviors and support policies towards testing and treatment.[106] COVID-19 arose at a time in the United States with “unprecedented partisan polarization, in an election year, and shortly after [an] impeachment trial of the president.”[107] This led to the reopening of the economy becoming a political issue, with social distancing measures becoming politicized instead of being taken as serious federal guidelines.[108]

Had local authorities been able to separate themselves from this disunity, the United States may very well look like its federalist neighbor and other federalist nations regarding COVID‑19. Federalism in its essence is not the issue. However, in the extremely polarized nation the United States has become, perhaps it is. With local health officials being unable to insulate themselves from politics, the election year appeared to weigh heavily on state decision-makers, as disunity appears to have brought the United States to be one of the worst-off countries in the world in terms of COVID-19 infection.

C. Are the Pros of Federalism Worth It?

While a federalist health system can be an effective way to combat a pandemic—as demonstrated by Canada, Germany, and Australia—it has been ineffective for the United States given its political disunity on the matter. However, there are still advantages to the United States’ current federalist system that need to be weighed before determining whether federal intervention in intrastate quarantine is what the United States should do.

“One of federalism’s chief virtues, of course, is that it promotes innovation by allowing for the possibility that ‘a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.’”[109] This advantage of individual states taking isolated risks to the benefit of others has proven true during COVID-19, especially during the early days of the pandemic.[110] For example, the spike in COVID-19 cases from restaurants reopening in some states caused Governors like Andrew Cuomo of New York and Phil Murphy of New Jersey to delay the reopening of indoor dining in their states.[111] Other federalist countries like Germany have also seen the benefit of giving flexibility at local levels.[112] When states like Texas reopen early, their risk in doing so provides valuable information that might be lost if the entire country was reopened in sync by a centralized authority.[113] Furthermore, when a single state experiences a massive influx of cases by reopening early, the country has the resources to flex and assist that state, whereas if all states made the same risky move at the same time, those same resources would be quickly expended and soon made unavailable.[114]

However, when weighed against the opportunity for disunity that federalism brings, it appears that federal intervention in intrastate quarantine is likely the best option in the case of a pandemic of COVID-19 proportion in a country as polarized as the United States. Although federalism certainly has its benefits in a pandemic, in the circumstance where health guidelines become political issues, federal intervention to the level of intrastate quarantine is necessary to preserve the economy, health, and security of the nation as a whole. Not only is federal intervention in intrastate quarantine something the government can do in such extreme circumstances but also something it should do.

V. Conclusion

The loss of life due to the COVID-19 pandemic is tragic. However, those deaths do not need to be in vain. U.S. legislators have the potential to learn a valuable lesson from COVID-19, as the pandemic proved that during times of political disunity a federalist health system can be ineffective,[115] and, with the interconnectedness of the U.S. economy, dysfunctional.[116] While COVID-19 is a highly contagious disease with a low mortality rate,[117] it is quite possible that a disease much more deadly and equally as contagious could ravage the globe as diseases have over mankind’s history.[118] In such a future instance, it is imperative that the federal government either unify the states through a concerted effort or intervene to protect the interests of all Americans.

Though the history of the United States’ laws disallowed federal intervention of intrastate quarantine, the precedential weight of the impact that COVID-19 has had on interstate commerce opens the door for intervention. Under the holdings of Heart of Atlanta and McClung, the Commerce Clause grants Congress the power to intervene in local activities when those activities are substantially related to interstate commerce.[119] The relationship between intrastate quarantine and interstate commerce in the case of the COVID-19 pandemic is beyond substantial.[120] Under this enumerated power, Congress has already given the Executive Branch the emergency authority it needs to intervene when local health authorities’ efforts are insufficient.[121] Given continued ignorance towards CDC guidelines by state health officials and the perpetuation of the spread of the pandemic in the United States, it appears that the Executive Branch is empowered to intervene under its synergistic authorization by Congress.[122] While the ability for the President to intervene under emergency authorization is less clear, it is a possibility, and if the impact of the COVID-19 pandemic on the U.S. Armed Forces was severe enough the Supreme Court would likely find the circumstances sufficient.[123]

With all of this said, a federalist health system has numerous benefits, many of which have been leveraged in conjunction with a successful COVID-19 response by other nations.[124] Though the necessity for federal intervention may arise during times of an extreme global pandemic, under current laws intervention would be limited to just that.[125] History has proven that another pandemic of COVID-19 proportion is likely an inevitability, and therefore it is important to know that were the U.S. government to find itself in a similar situation again, it can, and should, intervene.

Kevin Philip Donovan

  1. WHO Coronavirus (COVID-19) Dashboard, World Health Org. [hereinafter World Health Org.], https://covid19.who.int/table [https://perma.cc/PD4P-88SY] (last visited Oct. 17, 2021).

  2. Id.

  3. See infra Section II.A.

  4. See Matthew Lee, Poll: Many Americans Blame Virus Crisis on US Government, AP News, Oct. 5, 2020, https://apnews.com/article/virus-outbreak-donald-trump-health-united-states-china-89f3f568802f32e6bafdbeee1c53abe2 [https://perma.cc/UZ5W-ZXYD]; see also Most Americans Say Federal Government Has Primary Responsibility for COVID-19 Testing, Pew Rsch. Ctr. (May 12, 2020), https://www.pewresearch.org/politics/2020/05/12/most-americans-say-federal-government-has-primary-responsibility-for-covid-19-testing/ [https://perma.cc/K5C4-JT6J].

  5. Emily Jacobs, Joe Biden Says Legal Team Thinks Mask Mandate Is Constitutional, N.Y. Post, https://nypost.com/2020/09/17/joe-biden-says-legal-team-thinks-mask-mandate-is-constitutional/ [https://perma.cc/P295-2P7U] (Sept. 17, 2020, 10:52 AM); Matt Perez, A Trump Pattern—Claiming ‘Total Authority,’ Then Backing Down—Continues, Forbes (Apr. 18, 2020, 6:41 PM), https://www.forbes.com/sites/mattperez/2020/04/18/a-trump-pattern-claiming-total-authority-then-backing-down-continues/ [https://perma.cc/E9QM-RBJ4]; Paulina Firozi, The Health 202: Trump Administration Resists Federal Mask Mandate as Other Nations Implement Them, Wash. Post (July 21, 2020), https://www.washingtonpost.com/politics/2020/07/21/health-202-trump-administration-resists-federal-mask-mandate-other-nations-implement-them/ [https://perma.cc/Q57R-LXNC].

  6. See Susan Page, Read the Full Transcript of Vice Presidential Debate Between Mike Pence and Kamala Harris, USA Today, https://www.usatoday.com/story/news/politics/elections/2020/10/08/vice-presidential-debate-full-transcript-mike-pence-and-kamala-harris/5920773002/ [https://perma.cc/P3SA-HHN7] (Oct. 8, 2020, 11:37 AM).

  7. See infra Part III.

  8. See infra Part II.

  9. See infra Part III.

  10. See infra Part IV.

  11. See infra Part V.

  12. Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 116 (1824).

  13. See id. at 2–3.

  14. See Hickox v. Christie, 205 F. Supp. 3d 579, 591 (D.N.J. 2016) (“[T]he power of States to enact and enforce quarantine laws for the safety and the protection of the health of their inhabitants . . . is beyond question.” (quoting Compagnie Francaise de Navigation a Vapeur v. La. State Bd. of Health, 186 U.S. 380, 387 (1902))).

  15. U.S. Const. amend. X.

  16. Gibbons, 22 U.S. at 112.

  17. See Hickox, 205 F. Supp. 3d at 586, 603 (holding that a New Jersey Governor’s decision to involuntarily confine an individual that potentially contracted Ebola was within the Governor’s rights); Jacobson v. Massachusetts, 197 U.S. 11, 39 (1905) (holding that a state’s law requiring vaccination of inhabitants was valid); Louisiana v. Texas, 176 U.S. 1, 3–4, 22–23 (1900) (dismissing suit filed by Louisiana to enjoin Texas from placing an embargo on all commerce from New Orleans under the guise of preventing the spread of Yellow Fever for lack of jurisdiction); see also Polly J. Price, Epidemics, Outsiders, and Local Protection: Federalism Theater in the Era of the Shotgun Quarantine, 19 U. Pa. J. Const. L. 369, 379, 392–93 (2016) (outlining the history of shotgun quarantine to include the events of Louisiana v. Texas).

  18. See U.S. Const. art. I, § 8, cl. 3; U.S. Const. art. I, § 9, cl. 1; Leah R. Fowler et al., Univ. of Hous. L. Ctr. Health L. & Pol’y Inst., Control Measures and Public Health Emergencies: A Texas Bench Book 11 (Leah R. Fowler ed., 2020).

  19. Laura K. Donohue, Biodefense and Constitutional Constraints, 4 U. Miami Nat’l Sec. & Armed Conflict L. Rev. 82, 152–53 (2013). The Public Health Service Act is codified in 42 U.S.C. § 264; the Disaster Relief and Emergency Assistance Act is codified in 42 U.S.C. § 5121.

  20. 42 U.S.C. § 264(a); Jared P. Cole, Cong. Rsch. Servs., Federal and State Quarantine and Isolation Authority 1–2 (2014). The power originally belonged to the Secretary of Health and Human Services but was transferred to the CDC in 2000 Id. at 1–2.

  21. 42 C.F.R § 70.2.

  22. Lawrence O. Gostin et al., Presidential Powers and Response to COVID-19, 323 JAMA 1547, 1547 (2020).

  23. See infra Section III.A.

  24. See infra Section III.B.

  25. See Health Department Governance, Ctr. for Disease Control & Prevention, https://www.cdc.gov/publichealthgateway/sitesgovernance/index.html [https://perma.cc/6866-6LR9] (Nov. 13, 2020) (classifying state and local health department governance into centralized, decentralized, or mixed structures).

  26. See infra Section IV.A.

  27. Polly J. Price, Do State Lines Make Public Health Emergencies Worse? Federal Versus State Control of Quarantine, 67 Emory L.J. 491, 516 (2018).

  28. See id.

  29. See Health Department Governance, supra note 25.

  30. Fowler et al., supra note 18, at 12.

  31. Id.

  32. Tex. Health & Safety Code § 121.022.

  33. Tex. Gov’t Code § 418.015 (“During a state of disaster and the following recovery period, the governor is the commander in chief of state agencies, boards, and commissions having emergency responsibilities.”).

  34. Off. Tex. Governor, Governor Abbott’s Proactive Response to the Coronavirus Threat 1 (2021), https://gov.texas.gov/uploads/files/press/Governor-Abbott-Proactive-Response.pdf [https://perma.cc/964J-VWPB].

  35. Id. But see Steve Campion, Harris County Remains One of the Only Counties in Houston Area Where Bars Can’t Reopen, ABC 13 (Oct. 15, 2020), https://abc13.com/harris-county-lina-hidalgo-no-to-bars-opening-in-texas-governor-abbott-opens-tweet-greg/6849092/ [https://perma.cc/88QL-78VY] (demonstrating the decentralized approach of Texas local health authorities as Harris County Judge Lina Hidalgo declines to reopen bars after given the choice by the Governor of Texas).

  36. Emma Platoff, Gov. Greg Abbott Keeps Businesses Open Despite Surging Coronavirus Cases and Rising Deaths in Texas, Tex. Trib. (June 25, 2020, 5:00 PM), https://www.texastribune.org/2020/06/25/texas-coronavirus-cases-greg-abbott-open/ [https://perma.cc/A988-BZG9].

  37. Sarah H. Gordon et al., What Federalism Means for the US Response to Coronavirus Disease 2019, JAMA Health F., May 2020, at 1, https://jamanetwork.com/channels/health-forum/fullarticle/2766033 [https://perma.cc/VL2L-MPBU].

  38. Benjamin M. Althouse et al., The Unintended Consequences of Inconsistent Pandemic Control Policies, Nat’l Insts. Health (Oct. 28, 2020), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7457624/ [https://perma.cc/Z7M5-LKFV] (citing studies showing an increase in travel distance for churches and gyms since the rise of the COVID-19 pandemic in the United States).

  39. Id.

  40. Julia Oak & Jayakanth Srinivasan, Policy Inconsistencies Magnify COVID-19 Data Voids, B.U. Inst. for Health Sys. Innovation & Pol’y (Sept. 15, 2020), https://www.bu.edu/ihsip/2020/09/15/policy-inconsistencies-magnify-covid-19-data-voids/ [https://perma.cc/TJ8K-V4HD] (illustrating the differences in tracking and reporting between states, where Massachusetts “uses lab data supplemented with hospital reported data,” Texas “follows the CDC’s COVID-19 reporting guidelines,” and South Dakota “use[s] a general communicable disease reporting form”).

  41. See infra Section IV.A.

  42. U.S. Const. art. I, § 8, cls. 1, 3 (“The Congress shall have Power . . . [t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes . . . .”).

  43. United States v. Lopez, 514 U.S. 549, 558–59 (1995).

  44. Id.

  45. Lauren Bauer et al., Ten Facts About COVID-19 and the U.S. Economy, Brookings (Sept. 17, 2020), https://www.brookings.edu/research/ten-facts-about-covid-19-and-the-u-s-economy/ [https://perma.cc/9WXS-BGKQ].

  46. Lopez, 514 U.S. at 559–60.

  47. See Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 253, 258 (1964) (holding that the discriminatory operation of motels sufficiently affected interstate commerce to warrant regulation by Congress because there was evidence that discrimination in travel accommodations led to decreased interstate travel from African‑American travelers, affecting both their enjoyment of travel and adversely affecting air commerce); Katzenbach v. McClung, 379 U.S. 294, 304 (1964) (holding that Congress had a rational basis for concluding “that racial discrimination in restaurants had a direct and adverse effect on the free flow of interstate commerce” because those restaurants served food coming from out of state and offered food to interstate travelers).

  48. See supra note 47. Both cases also applied the rationale that seemingly strictly intrastate and individual acts of commerce, when combined in the aggregate, can have a substantial effect on interstate commerce. See Heart of Atlanta Motel, 379 U.S. at 275–76 (“[W]e do not consider the effect on interstate commerce of only one isolated, individual, local event, without regard to the fact that this single local event when added to many others of a similar nature may impose a burden on interstate commerce . . . .” (emphasis added)); see also McClung, 379 U.S. at 301 (recognizing that a wheat farmer’s growth of wheat for his own personal use was still substantial when “taken together with that of many others similarly situated” (quoting Wickard v. Filburn, 317 U.S. 111, 127–28 (1942))).

  49. See Mark A. Rothstein, Column, The Coronavirus Pandemic: Public Health and American Values: Currents in Contemporary Bioethics, 48 J.L. Med. & Ethics 354, 356 (2020) (“Social distancing measures would have been more successful if every state had adopted them in a timely manner, but some states from the Midwest and South lagged behind . . . .”); Oxford Econs., The Impact of COVID-19 on the United States Travel Economy ( 2020), https://www.ustravel.org/sites/default/files/media_root/document/Coronavirus2020_Impacts_April15.pdf [https://perma.cc/CPW6-BZ8Y] (predicting a 45% decline in the U.S. travel industry and $519 billion in lost revenue for the year 2020).

  50. See Megan Marples & Forrest Brown, COVID-19 Travel Restrictions State by State, CNN (Nov. 3, 2020), https://www.cnn.com/travel/article/us-state-travel-restrictions-covid-19/index.html [https://perma.cc/JXE7-6RNY] (providing an updated list of travel restrictions to include fourteen-day quarantines for out-of-state travelers, mandatory testing for out-of-state travelers, completion of travel health forms, amongst other requirements that vary state by state).

  51. Justin Mulfati, Coronavirus News: Regular Updates on COVID-19’s Impact on the Airline Industry, Airline Passenger Experience Ass’n, (Nov. 4, 2020), https://apex.aero/articles/coronavirus/ [https://perma.cc/8ZSM-AD4W] (predicting Boeing’s job losses from 160,000 employees at the end of 2019 to 130,000 by the end of 2021, and American and United Airlines furloughing of more than 30,000 employees in October alone, with this impact “expected to spread, as suppliers are also forced to scale back owing to reduced demand and revenues”).

  52. Id. (reporting third-quarter losses of $5.4 billion for Delta Airlines and $1.8 billion for United Airlines, among others).

  53. Kelly Wynne, Delta Isn’t Booking Flights at Full Capacity but Here’s Which Airlines Are, Newsweek (July 1, 2020, 3:11 PM), https://www.newsweek.com/delta-isnt-booking-flights-full-capacity-heres-which-airlines-are-1514808 [https://perma.cc/LQ3C-EU5J] (noting Delta, JetBlue, and Southwest Airlines all reduced flight capacity for COVID-19 concerns among other measures “including required face coverings, enhanced cleaning procedures, and a pre-flight COVID-19 symptom checklist”).

  54. See Gerald D. Davis & Amy L. Drushal, The Shutdown of the Restaurant Industry: The Widespread Impact, Law (June 17, 2020, 3:28 PM), https://www.law.com/2020/06/17/the-shutdown-of-the-restaurant-industry-the-widespread-impact/?slreturn=20201005201451 [https://perma.cc/3Q4U-NACT].

  55. Id.; Julia Donovan, Popular Colorado Springs Diner Closes Due to Lack of Sales During COVID-19, KRDO News (Aug. 1, 2020, 10:46 PM), https://krdo.com/lifestyle/2020/08/01/popular-colorado-springs-diner-closes-due-to-lack-of-sales-during-covid-19/ [https://perma.cc/8VK9-9YFW]; Rachel King, More than 110,000 Eating and Dining Establishments Closed in 2020, Fortune (Jan. 26, 2021), https://fortune.com/2021/01/26/restaurants-bars-closed-2020-jobs-lost-how-many-have-closed-us-covid-pandemic-stimulus-unemployment/ [https://perma.cc/P42A-C5MW].

  56. See Davis & Drushal, supra note 54.

  57. Katzenbach v. McClung, 370 U.S. 294, 304 (1964).

  58. See Davis & Drushal, supra note 54 (explaining the effect of COVID-19 on the restaurant and meat production supply chain relationship, and stating that among other meat processing plants, three of the largest pork processing plants in the country have closed due to COVID-19, accounting for “approximately fifteen percent of pork production”).

  59. In Morrison, the Court held that Congress’s Violence Against Women Act of 1994 was not constitutional under the Commerce Clause because, by creating penalties for gender-motivated violence, Congress was infringing upon the policing power of the states. United States v. Morrison, 529 U.S. 598, 617–19, 627–28 (2000).

  60. United States v. Lopez, 514 U.S. 549, 567 (1995).

  61. Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 558 (2012).

  62. Id. (explaining that forcing individuals to buy healthcare would be analogous to forcing individuals to buy broccoli).

  63. This also addresses a major concern of the Court that “[t]he Commerce Clause is not a general license to regulate an individual from cradle to grave.” Id. at 557. Because a pandemic of COVID-19 magnitude is not only temporary but historic, intervening in intrastate quarantine in this given instance is far from the slippery slope that the Court fears Congress would go down otherwise.

  64. U.S. Const. art. I, § 8, cl. 18 (stating Congress has the power “[t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution”).

  65. United States v. Comstock, 560 U.S. 126, 133–34 (2010) (quoting McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 413, 418 (1819)).

  66. Id. at 134.

  67. Sebelius, 567 U.S. at 559–60 (defining “proper” as whether a law by Congress is a usurpation of the essential constitutional attributes of state sovereignty).

  68. Comstock, 560 U.S. at 136–37, 144.

  69. U.S. Const. art. II; Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 586–89 (1952); Dames & Moore v. Regan, 453 U.S. 654, 672–77 (1981).

  70. Youngstown, 343 U.S. at 635 (Jackson, J., concurring); Dames & Moore, 453 U.S. at 669.

  71. U.S. Const. art. II, § 3; U.S. Const. art. I, § 8, cl. 18.

  72. Justice Jackson finds presidential power at its highest when there is “an express or implied authorization of Congress,” in a “zone of twilight” when there is “congressional inertia, indifference or quiescence,” and “at its lowest ebb” when the “President takes measures incompatible with the expressed or implied will of Congress.” Youngstown, 343 U.S. at 635–37 (Jackson, J., concurring); Dames & Moore, 453 U.S. at 669 (recognizing the analytical utility in Justice Jackson’s classification of executive actions but instead viewing Executive action “along a spectrum running from explicit congressional authorization to explicit congressional prohibition”).

  73. Youngstown, 343 U.S. at 635 (Jackson, J., concurring).

  74. See supra Section II.A.

  75. See supra Section III.A.1.

  76. Evie Fordham, Fauci: Reopening Too Soon Could ‘Turn the Clock Back’ on Economic Recovery, Fox Bus. (May 12, 2020), https://www.foxbusiness.com/markets/coronavirus-dr-fauci-testimony-senate [https://perma.cc/5R5S-JJEK] (quoting Dr. Anthony Fauci, director of the National Institute of Allergies and Infectious Diseases, in his Senate testimony that reopening economies too early could “‘turn the clock back’ on economic recovery and see ‘little spikes’ of coronavirus cases that turn into outbreaks”); Paige Cunningham, The Health 202: Most States Lifting Coronavirus Lockdowns Haven’t Met Federal Guidelines for Reopening, Wash. Post (May 13, 2020), https://www.washingtonpost.com/news/powerpost/paloma/the-health-202/2020/05/13/the-health-202-most-states-lifting-coronavirus-lockdowns-haven-t-met-federal-guidelines-for-reopening/5ebaaf55602ff11bb117afb5/ [https://perma.cc/UR67-G69Q] (reporting that despite the CDC guidelines, most states reopened without seeing a fourteen-day period of sustained reduction in confirmed infections); Matt Berger, States Are Learning What Happens to COVID-19 Cases if You Reopen Too Early, Healthline (June 30, 2020), https://www.healthline.com/health-news/covid19-cases-rising-states-reopened [https://perma.cc/A48L-JLFZ] (explaining states reopening too early and failing to enforce social distancing measures as an important factor to a spike in COVID-19 cases and hospitalizations).

  77. Christina Carrega, Rhode Island’s Governor Calls to Quarantine New Yorkers to Prevent the Spread of COVID-19, ABC News (Mar. 28, 2020, 9:47 AM), https://abcnews.go.com/US/rhode-islands-governor-calls-quarantine-yorkers-prevent-spread/story?id=69852552 [https://perma.cc/3S8M-C7FZ] (detailing the “extreme measures” that Rhode Island—which only had 200 cases of COVID-19 at the time—was taking to prevent infection spread from New York City travelers—where there were over 26,000 cases at the time); see also infra Section III.A.

  78. U.S. Const. art. II, § 2, cl. 1; Price, supra note 27, at 514.

  79. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S 579, 637 (1952) (Jackson, J., concurring).

  80. In 2004, President Bush recognized the importance of the nation’s bio defense not only against terrorists but also in “the wake of natural catastrophes and in response to naturally-occurring biological hazards such as SARS.” Press Release, Off. of Press Sec’y, Fact Sheet: President Bush Signs Biodefense for the 21st Century (Apr. 28, 2004), https://fas.org/irp/offdocs/nspd/biodef.html [https://perma.cc/7WMF-6USD].

  81. See infra note 82.

  82. Meghann Myers, Pentagon Reviewing Whether to Hold Up More PCS Moves, Deployments Due to Coronavirus, Mil. Times (Mar. 10, 2020), https://www.militarytimes.com/news/your-military/2020/03/10/pentagon-reviewing-whether-to-hold-up-more-pcs-moves-deployments-due-to-coronavirus/ [https://perma.cc/7E3P-8CUG]; Tom Vanden Brook, Sailor on USS Roosevelt, Whose Captain Was Fired After Pleading for Help, Dies of Coronavirus, USA Today, https://www.usatoday.com/story/news/politics/2020/04/13/coronavirus-sailor-uss-roosevelt-ship-plagued-virus-dies/2981417001/ [https://perma.cc/8ZU5-S5EN] (Apr. 13, 2020, 12:36 PM); Ryan Browne & Paul LeBlanc, First US Service Member Dies from Coronavirus, CNN, https://www.cnn.com/2020/03/30/politics/us-service-member-dies-from-coronavirus/index.html [https://perma.cc/M23P-RAJV] (Mar. 30, 2020, 7:56 PM).

  83. Barbara Starr & Ryan Browne, US Military Sees 60 Percent Jump in Coronavirus Cases in First Few Weeks of July, CNN, https://www.cnn.com/2020/07/13/politics/us-military-covid-spike/index.html [https://perma.cc/9AWF-WV4E] (July 13, 2020 6:13 PM) (“Officials say the reason for the increased number of military cases stems from the fact that service members are very much part of the communities in which they are stationed, with personnel and their dependents frequently interacting with civilian populations in those areas, increasing the chances of exposure.”). The inability for a single soldier to deploy due to contracting COVID-19 can severely impact the readiness of an entire section. For example, if a mortar team loses a single key leader or certain specialized personnel, then it is no longer considered proficient. Headquarters, Dep’t of the Army, TC 3-20.0, Integrated Weapons Training Strategy §§ 6-3, 6-4, 6-36 (2019).

  84. Myers, supra note 82.

  85. Richard Jackson, War on Terrorism, Encyclopedia Britannica (May 12, 2020), https://www.britannica.com/topic/war-on-terrorism [https://perma.cc/R55C-ML47] (defining the War on Terrorism as the “American-led global counterterrorism campaign launched in response to the terrorist attacks of September 11, 2001”); Mark Landler, 20 Years On, the War on Terror Grinds Along, with No End in Sight, N.Y. Times, https://www.nytimes.com/2021/09/10/world/europe/war-on-terror-bush-biden-qaeda.html [https://perma.cc/GUC3-ZSJL] (Sept. 12, 2021).

  86. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 582–89; id. at 639 (Jackson, J., concurring) (finding that because the President chose “a different and inconsistent way of his own,” he could not claim “that it is necessitated or invited by failure of Congress to legislate upon the occasions”).

  87. See supra Part III.

  88. Public Health Security and Bioterrorism Preparedness and Response Act of 2002, Pub. L. No. 107-188, 116 Stat. 594 (codified at 42 U.S.C. § 264).

  89. Hirabayashi v. United States, 320 U.S. 81, 92, 94–95 (1943) (holding that it was within the power of the Executive Branch to prescribe a curfew order given national security concerns from espionage and sabotage in World War II).

  90. See Ex parte Endo, 323 U.S. 283, 302 (1944) (holding that a citizen who is concededly loyal cannot be detained for the possibility of espionage or sabotage simply because of their race); see also Trump v. Hawaii, 138 S. Ct. 2392, 2423 (2018) (overturning the holding in Korematsu v. United States that the Federal Government can forcibly relocate citizens solely and explicitly on the basis of race).

  91. See infra Section IV.A.

  92. On November 7, 2020, the United States had 9,504,758 cumulative reported cases of COVID-19, which equaled 28,715 cumulative cases per 1 million population, and 704 deaths per 1 million population. See World Health Org., supra note 1. Germany had 642,488 cumulative reported cases, which equaled 7,668 cumulative cases per 1 million population, and 133 deaths per 1 million population. Id. Canada had 251,338 cumulative reported cases, which equaled 6,659 cumulative cases per 1 million population, and 275 deaths per 1 million population. Id. Australia had 27,645 cumulative reported cases, which equaled 1,084 cumulative cases per 1 million population, and 35 deaths per 1 million population. Id. As of October 17, 2021 (just prior to this Comment publishing), the United States continued to rank number one in the world for highest cumulative number of cases at 44,408,612, and when compared to Canada, Germany, and Australia, had over 2.5 times more cumulative cases per 100,000 population than the worst of these three countries and just under two times more deaths per 100,000 population. Id.

  93. Tariq Ahmad, Canada, in Legal Responses to Health Emergencies 39–40, 42–43 (Law Libr. of Cong. ed., 2015), https://tile.loc.gov/storage-services/service/ll/llglrd/2014504236/2014504236.pdf [https://perma.cc/JVZ9-4ANQ].

  94. Id. at 39–40, 45–46; Provinces and Territories: Taking Action on COVID-19, Can.'s Premiers, https://www.canadaspremiers.ca/covid-19/ [https://perma.cc/G8J3-TU8Z] (last visited Oct. 16, 2021).

  95. Kelly Buchanan, Australia, in Legal Responses to Health Emergencies, supra note 93, at 13, 23–24.

  96. Id. at 23–24.

  97. Lothar Wieler et al., Emerging COVID-19 Success Story: The Challenge of Maintaining Progress, Exemplars in Glob. Health, https://www.exemplars.health/emerging-topics/epidemic-preparedness-and-response/covid-19/germany [https://perma.cc/4NKV-UK3Y] (last visited Nov. 8, 2020).

  98. Jacob Greber, Australia, NZ Have ‘World’s Best’ COVID Health and Economic Response, Fin. Rev. (Apr. 30, 2020, 3:18 AM), https://www.afr.com/policy/economy/australia-nz-have-world-s-best-covid-health-and-economic-response-20200430-p54ofs [https://perma.cc/VWG3-KXA9]; see World Health Org., supra note 1.

  99. See infra Section IV.B.

  100. See infra Section IV.B.

  101. Eric Merkley et al., A Rare Moment of Cross-Partisan Consensus: Elite and Public Response to the COVID-19 Pandemic in Canada, 53 Can. J. Pol. Sci. 311, 313 (2020).

  102. John Thwaites, Global Report Gives Australia an A for Coronavirus Response but a D on Climate, Med. Xpress (July 6, 2020), https://medicalxpress.com/news/2020-07-global-australia-coronavirus-response-d.html [https://perma.cc/TN29-AVU8].

  103. See Wieler et al., supra note 97.

  104. See Merkley et al., supra note 101, at 311.

  105. Id.; Shana Kushner Gadarian et al., Partisanship, Health Behavior, and Policy Attitudes in the Early Stages of the COVID-19 Pandemic, at 1–2 (Mar. 27, 2020), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3562796 [https://perma.cc/Y7ZT-L9B2].

  106. Gadarian et al., supra note 105, at 8.

  107. Rothstein, supra note 49, at 356–57.

  108. See id. at 357; see also Christine Vestal & Michael Ollove, Politicians Shunt Aside Public Health Officials, Pew (June 18, 2020), https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2020/06/18/politicians-shunt-aside-public-health-officials [https://perma.cc/VVU3-TWEF] (explaining that from the outset of COVID-19, many governors fired or ignored public health officials that opposed actions like early reopening of economies, and even when agreement was had between elected officials and health officials on guidelines like reopening, governors would often subside to political pressure and ignore said guidelines).

  109. Gonzalez v. Raich, 545 U.S. 1, 42 (2005) (O’Connor, J., dissenting) (quoting New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting)).

  110. See Noah Higgins-Dunn, More States Reverse or Slow Reopening Plans as Coronavirus Cases Climb, CNBC, https://www.cnbc.com/2020/06/29/more-states-reverse-or-slow-reopening-plans-as-coronavirus-cases-climb.html [https://perma.cc/AYT9-WP2D] (June 29, 2020, 4:51 PM).

  111. Id.

  112. See Wieler et al., supra note 97.

  113. See supra note 110 and accompanying text.

  114. See Medical Device Shortages During the COVID-19 Public Health Emergency, U.S. Food & Drug Admin., https://www.fda.gov/medical-devices/coronavirus-covid-19-and-medical-devices/medical-device-shortages-during-covid-19-public-health-emergency [https://perma.cc/UR9G-F4K3] (Sept. 10, 2021).

  115. See supra Section IV.B.

  116. See supra Section III.A.1.

  117. See Hannah Ritchie et al., Mortality Risk of COVID-19, Our World in Data, https://ourworldindata.org/mortality-risk-covid [https://perma.cc/EC9E-B7NY] (assessing the world average mortality rate for COVID-19 at 2.2%) (Sept. 17, 2020). As of October 16, 2021 (just prior to this Comment publishing), the United States’ mortality rate for COVID-19 was 2.04%. Id.

  118. Now curable with antibiotics, the Bubonic Plague killed over one-third of Europeans at its peak and was highly infectious as it spread not only between humans but also from fleas on mammals. Jenny Howard, Plague Was One of History’s Deadliest Diseases—Then We Found a Cure, Nat’l Geographic (July 6, 2020), https://www.nationalgeographic.com/science/article/the-plague [https://perma.cc/7JMQ-L4HH]. Prior to its eradication, the variola major strain of smallpox killed approximately 30% of those infected, and the disease killed an estimated 300 million people during the 20th century alone. Sophie Ochmann & Max Roser, Smallpox, Our World in Data (2018), https://ourworldindata.org/smallpox [https://perma.cc/RMF3-4AG7]. Though it was mostly contained in West Africa, the 2014 to 2016 Ebola epidemic had a fatality rate of greater than 40%. 2014-2016 Ebola Outbreak in West Africa, Ctrs. for Disease Control & Prevention, https://www.cdc.gov/vhf/ebola/history/2014-2016-outbreak/index.html [https://perma.cc/59F6-LTYR] (Mar. 8, 2019).

  119. See supra Section III.A.

  120. See supra Section III.A.

  121. See supra Section II.A.

  122. See supra Section III.B.

  123. See supra Section III.B.

  124. See supra Section IV.A.

  125. See supra Section II.A. Congress does, however, always have the option to pass an amendment to the Constitution clarifying its role in intrastate quarantine. U.S. Const. art. V.