Everyone agrees that states have broad internal police power to take action to stop the spread of a public health crisis. You know, kind of like the federal government has power to stop the security and health crisis at our border, yet failed to act upon it for over a year. But are there no limits whatsoever to these internal powers? Can any governor or county executive simply flick his pen and shut every business even if it doesn’t create crowds? Can they unilaterally restrict every aspect of the Bill of Rights indefinitely without any oversight, due process, benchmarks, or transparency?
In Jacobson v. Massachusetts (1905), the Supreme Court ruled, “It is within the police power of a State to enact a compulsory vaccination law, and it is for the legislature, and not for the courts, to determine.†It therefore held that the state’s mandatory vaccine against smallpox was within its constitutional authority. This built upon the established concept alluded to in the landmark Gibbons v. Ogden (1824) case that “reasonable regulations established directly by legislative enactment as will protect the public health and the public safety.â€
However, that same court made it clear that there is a point where states can enact policies in “such an arbitrary, unreasonable manner, or might go so far beyond what was reasonably required for the safety of the public†that they would be outside constitutional bounds.
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We’ve simply never done this before in our history. These are not mere quarantine laws that supporters cite to justify what is going on today. Quarantine laws traditionally separate an individual or an entire group of people from the general population. What we are doing now, however, is locking down the entire general population.
Whether they use the term or not, governors are ordering nothing short of martial law, shutting down nearly all businesses and churches to the point that there will be no public services for Easter and Passover under any circumstance, and unemployment will surpass the levels of the Great Depression. Yes, there are times when that might be necessary, but the question should require a debate, transparency, time limits, and the production of more evidence about the value of these additional measures, which will undoubtedly grow legs in the coming days.
https://www.conservativereview.com/news/horowitz-quarantine-tyranny/