Skip to main content
Menu

Main navigation

  • About
    • Annual Reports
    • Leadership
    • Jobs
    • Student Programs
    • Media Information
    • Store
    • Contact
    LOADING...
  • Experts
    • Policy Scholars
    • Adjunct Scholars
    • Fellows
  • Events
    • Upcoming
    • Past
    • Event FAQs
    • Sphere Summit
    LOADING...
  • Publications
    • Studies
    • Commentary
    • Books
    • Reviews and Journals
    • Public Filings
    LOADING...
  • Blog
  • Donate
    • Sponsorship Benefits
    • Ways to Give
    • Planned Giving

Issues

  • Constitution and Law
    • Constitutional Law
    • Criminal Justice
    • Free Speech and Civil Liberties
  • Economics
    • Banking and Finance
    • Monetary Policy
    • Regulation
    • Tax and Budget Policy
  • Politics and Society
    • Education
    • Government and Politics
    • Health Care
    • Poverty and Social Welfare
    • Technology and Privacy
  • International
    • Defense and Foreign Policy
    • Global Freedom
    • Immigration
    • Trade Policy
Live Now

Blog


  • Blog Home
  • RSS

Email Signup

Sign up to have blog posts delivered straight to your inbox!

Topics
  • Banking and Finance
  • Constitutional Law
  • Criminal Justice
  • Defense and Foreign Policy
  • Education
  • Free Speech and Civil Liberties
  • Global Freedom
  • Government and Politics
  • Health Care
  • Immigration
  • Monetary Policy
  • Poverty and Social Welfare
  • Regulation
  • Tax and Budget Policy
  • Technology and Privacy
  • Trade Policy
Archives
  • March 2021
  • February 2021
  • January 2021
  • December 2020
  • November 2020
  • October 2020
  • September 2020
  • August 2020
  • July 2020
  • June 2020
  • May 2020
  • April 2020
  • March 2020
  • February 2020
  • January 2020
  • December 2019
  • November 2019
  • October 2019
  • September 2019
  • August 2019
  • July 2019
  • June 2019
  • May 2019
  • April 2019
  • March 2019
  • February 2019
  • January 2019
  • December 2018
  • November 2018
  • October 2018
  • September 2018
  • August 2018
  • July 2018
  • June 2018
  • May 2018
  • April 2018
  • March 2018
  • February 2018
  • January 2018
  • December 2017
  • November 2017
  • October 2017
  • September 2017
  • August 2017
  • July 2017
  • June 2017
  • May 2017
  • April 2017
  • March 2017
  • February 2017
  • January 2017
  • December 2016
  • November 2016
  • October 2016
  • September 2016
  • August 2016
  • July 2016
  • June 2016
  • May 2016
  • April 2016
  • March 2016
  • February 2016
  • January 2016
  • December 2015
  • November 2015
  • October 2015
  • September 2015
  • August 2015
  • July 2015
  • June 2015
  • May 2015
  • April 2015
  • March 2015
  • February 2015
  • January 2015
  • December 2014
  • November 2014
  • October 2014
  • September 2014
  • August 2014
  • July 2014
  • June 2014
  • May 2014
  • April 2014
  • March 2014
  • February 2014
  • January 2014
  • December 2013
  • November 2013
  • October 2013
  • September 2013
  • August 2013
  • July 2013
  • June 2013
  • May 2013
  • April 2013
  • March 2013
  • February 2013
  • January 2013
  • December 2012
  • November 2012
  • October 2012
  • September 2012
  • August 2012
  • July 2012
  • June 2012
  • May 2012
  • April 2012
  • March 2012
  • February 2012
  • January 2012
  • December 2011
  • November 2011
  • October 2011
  • September 2011
  • August 2011
  • July 2011
  • June 2011
  • May 2011
  • April 2011
  • March 2011
  • February 2011
  • January 2011
  • December 2010
  • November 2010
  • October 2010
  • September 2010
  • August 2010
  • July 2010
  • June 2010
  • May 2010
  • April 2010
  • March 2010
  • February 2010
  • January 2010
  • December 2009
  • November 2009
  • October 2009
  • September 2009
  • August 2009
  • July 2009
  • June 2009
  • May 2009
  • April 2009
  • March 2009
  • February 2009
  • January 2009
  • December 2008
  • November 2008
  • October 2008
  • September 2008
  • August 2008
  • July 2008
  • June 2008
  • May 2008
  • April 2008
  • March 2008
  • February 2008
  • January 2008
  • December 2007
  • November 2007
  • October 2007
  • September 2007
  • August 2007
  • July 2007
  • June 2007
  • May 2007
  • April 2007
  • March 2007
  • February 2007
  • January 2007
  • December 2006
  • November 2006
  • October 2006
  • September 2006
  • August 2006
  • July 2006
  • June 2006
  • May 2006
  • April 2006
  • Show More
April 1, 2020 2:00PM

Posse Comitatus and Interstate Travel Bans

By Gene Healy

SHARE

In the space of a few hours on Saturday, President Trump went from threatening an ALL-CAPS federal “QUARANTINE of developing ‘hot spots’, New York, New Jersey, and Connecticut” to… having CDC issue a “strong Travel Advisory” for the tristate area instead.

It’s hardly the first time this president has floated some eye‐​poppingly authoritarian proposal, only to back away from the Rubicon shortly thereafter. By now, the pattern should be familiar:

Trump hits “send tweet” on some crank theory of absolute executive power. Law professors and pundits cancel their weekend plans, scrambling to figure out “Can he do that?”—only to realize, weeks later, that they needn’t have taken him literally or seriously.

But when I wrote that in Reason magazine a year ago, “weekend plans” were still a thing. In the pre‐​COVID‐​19 era, it was usually safe to take the president’s autocratic reveries with a grain of salt. We’re in new territory now. The pressures for bold action in times of crisis have led far cooler‐​headed presidents to make desperate and dangerous moves, and there are far rougher days ahead. Our radically changed circumstances make this particular proposal worth worrying about.

How Would a Tristate Lockdown Be Enforced?

Where would the federal government get the manpower to enforce a Tristate‐​area quarantine?

A number of questions come to mind: first among them, “can he do that?”—is there any plausible legal authority for a domestic Travel Ban encircling three states and some 30 million Americans? Second, if he tried, how could the feds enforce it? And finally, just how nightmarish would that scenario be?

Let’s start with the legal question. The key statute for federal quarantine authority is the Public Health Service Act (PHSA), which has been used, in recent outbreaks, primarily for international travel restrictions. However, the PHSA also provides authority to issue regulations aimed at preventing disease spreading across state lines, and authorizes the apprehension and examination of

[A]ny individual reasonably believed to be infected with a communicable disease in a qualifying stage and (A) To be moving or about to move from a State to another State.…

The PHSA seems to envision individual testing, not interstate blockades. Regulations issued under its authority:

may provide that if upon examination any such individual is found to be infected, he may be detained for such time and in such manner as may be reasonably necessary.

That language does not appear to support a federal power to impose a cordon sanitaire around the Tristate Area unless virtually any person attempting to leave can be “reasonably believed” to already have COVID-19. Still, even more tortured interpretations of federal law have prevailed, at least temporarily, in past crises. I wouldn’t necessarily count on the courts to enjoin this one.

If the administration opted for an “enforceable quarantine,” how would the feds enforce it? “One option,” as George W. Bush put it in the wake of the Katrina debacle, “is the use of a military that’s able to plan and move.”

Indeed, for an operation on the scale Trump suggested, it may be the only option. “Neither the Public Health Services Act nor CDC regulations specifically authorize military enforcement of federal quarantine orders. But neither HHS nor CDC possess sufficient resources to enforce mass quarantines,” observes Jesse T. Greene in a 2015 Harvard National Security Journal article, “Federal Enforcement of Mass Involuntary Quarantines” (here’s hoping your social‐​distancing reading list consists of somewhat more soothing titles).

One potential obstacle to the use of federal troops for quarantine enforcement is the Posse Comitatus Act (PCA), the longstanding federal statute that makes it a criminal offense to use U.S. military forces to “execute the laws.” Still the PCA has never been an insurmountable barrier to using standing armies at home. By its terms, the statute doesn’t apply where Congress has elsewhere “expressly authorized” the use of federal troops to execute the laws. The PHSA doesn’t fit the bill, but, according to Greene and other analysts, another set of statutes might.

Those are the Insurrection Acts, based on Congress’s constitutional power to “To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.” Those authorities were last invoked in 1992, when President George H.W. Bush sent in U.S. Marines and Army infantry to help quell the L.A. Riots.

Under 10 USC §252, Congress has delegated to the president the power to call out federal troops when “unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State.” That language tracks with most uses of the Insurrection Acts historically, from the Whiskey Rebellion to the L.A. Riots. It’s a little tougher to see families attempting to cross state lines in the face of a federal quarantine as “unlawful combinations” or “rebellion against the authority of the United States.” The authority granted by the Insurrection Acts is “intentionally narrow and would not seem to allow federal troops to be used in a humanitarian situation like suppressing a pandemic,” Mark F. Cancian writes in a recent analysis for CSIS; still, “lawyers can be quite imaginative in finding ways to stretch statutory text.”

There’s good reason to resist that move. Soldiers are trained to be warriors, not peace officers — which is as it should be. But putting full‐​time warriors into a civilian policing situation can result in serious collateral damage to American life and liberty.

Greene, the author of the article on “Federal Enforcement of Mass Involuntary Quarantines,” supports military enforcement in certain circumstances. But he also acknowledges the grave risks entailed in the use of standing armies at home. He notes that the U.S. Coast Guard, which is not covered by the Posse Comitatus Act, “has organized to avoid problems like the one that occurred in 1992 when Marines accompanied LAPD officers.”

The Coast Guard has special units where Coast Guardsmen are trained to follow the “warrior mindset,” meaning they are focused on using overwhelming force. But, the Coast Guard never allows personnel in those special units to operate outside their units because “a 20 year old can’t just flick a switch in his head from warrior to enforcer mindset.”

Greene recounts an incident from the 1992 Marine deployment to Los Angeles.

Police officers responded to a domestic dispute, accompanied by marines. They had just gone up to the door when two shotgun birdshot rounds were fired through the door, hitting the officers. One yelled ‘cover me!’ to the marines, who then laid down a heavy base of fire .… The police officer had not meant ‘shoot’ when he yelled ‘cover me’ to the marines. [He] meant … point your weapons and be prepared to respond if necessary. However, the marines responded instantly in the precise way they had been trained, where ‘cover me’ means provide me with cover using firepower .… over two hundred bullets [were] fired into that house.

A few years later, a Marine Corps anti‐​drug patrol operating under the so‐​called drug war exceptions to the Posse Comitatus Act, shot and killed an 18‐​year‐​old American high school student who was herding goats near his family’s farm in Redford, Texas. An internal Pentagon investigation of the incident said that the soldiers were ill prepared for contact with civilians, as the Marines’ military training had instilled ‘‘an aggressive spirit while teaching basic combat skills.”

Worse still, Greene suggests that the military’s current Standing Rules for the Use of Force (SRUF) would exacerbate that problem, raising the risk of shoot‐​to‐​kill incidents in any federal quarantine. The SRUF may lead active‐​duty troops to believe they can use deadly force to stop Americans attempting to leave a quarantined area. To ameliorate that problem, Greene proposes replacing the current rules with revised SRUF designed to guard against lethal escalation “and ensure respect for the due process rights of quarantined persons.” But a better answer is to avoid such missions entirely.

Would interstate blockades enforced by federal troops do enough good to justify such a radical and risky departure from the American tradition of civilian law enforcement? How much, at this point, would they “flatten the curve”?

I’m not an epidemiologist, and I refrain even from playing one on Twitter. But actual experts in the containment of infectious diseases seem to recoil from Trump’s idea. The rush to get out of town before the clampdown “could end up creating more flight from New York and more chains of transmission,” argues Johns Hopkins’ Dr. Amesh Adalja. “The energy required to even begin to enforce something like that is probably better spent on core public health response activities,” echoes his colleague Joshua Sharfstein.

None of the above is to suggest that the US military shouldn’t help fight the COVID-19 pandemic. The Pentagon is the largest employer in the world and has manpower and assets it can bring to bear in this fight—without using soldiers against citizens.

Related Tags
The Nanny State, Proper Role of Government in a Pandemic, Free Speech and Civil Liberties, Urban Growth and Transportation, COVID-19, Center for Representative Government, Government and Politics, Energy and Environment, Regulation

Stay Connected to Cato

Sign up for the newsletter to receive periodic updates on Cato research, events, and publications.

View All Newsletters

1000 Massachusetts Ave, NW,
Washington, DC 20001-5403
(202) 842-0200
Contact Us
Privacy

Footer 1

  • About
    • Annual Reports
    • Leadership
    • Jobs
    • Student Programs
    • Media Information
    • Store
    • Contact

Footer 2

  • Experts
    • Policy Scholars
    • Adjunct Scholars
    • Fellows
  • Events
    • Upcoming
    • Past
    • Event FAQs
    • Sphere Summit

Footer 3

  • Publications
    • Books
    • Cato Journal
    • Regulation
    • Cato Policy Report
    • Cato Supreme Court Review
    • Cato’s Letter
    • Human Freedom Index
    • Economic Freedom of the World
    • Cato Handbook for Policymakers

Footer 4

  • Blog
  • Donate
    • Sponsorship Benefits
    • Ways to Give
    • Planned Giving
Also from Cato Institute:
Libertarianism.org
|
Humanprogress.org
|
Downsizinggovernment.org