This article discusses the scope of state and federal authority to implement key public health protection measures, and how likely actions are to survive court scrutiny.

Every state has implemented Emergency Orders in response to the pandemic, with many of the actions centered around closing schools and nonessential businesses, encouraging social distancing, and restricting travel. The Federal government also has taken numerous steps to try to slow Coronavirus spread. This article outlines the legal powers of state and federal government in using these measures and the role of the courts in reviewing such actions. The tension most likely to need to be resolved is that between public health protection and personal and economic rights. Furthermore, authorities at the state and federal level must always keep in mind the needs and impacts of their actions on the most vulnerable populations. The authors examine the following measures and their associated benefits and risks:

• Closing Schools and Businesses: State power to order the closure of places of congregation is well established, although the full range of consequences of doing so must be accounted for. Courts may look more closely at the closure of locations that attend to other constitutionally held rights (e.g. places of worship, abortion providers, firearm sellers).
• Bans on Gatherings: While rights of free speech, religion, and assembly are core Constitutional rights, states’ use of bans on gatherings to slow a pandemic are likely to be upheld by the courts, so long as the bans do not single out any particular groups in doing so.
• Curfews: So long as they are not arbitrary or discriminatory and are time limited, such measures taken by local government are likely to be upheld.
• Stay-at-home Orders: As the authors state, “Individual freedom is not absolute—it is balanced against compelling public health necessities.” Criteria used to guide such orders should be clear and evidence-based, and voluntary action should always be preferred over mandates and punitive measures. For isolation and quarantine, individualized risk assessments may be needed. It may be more difficult to marshal such information and set limits on larger scale actions.
• Traveler Quarantines: Orders that travelers entering the state self-quarantine and subject themselves to monitoring are likely to be found to be constitutional so long as they apply equally to nonresidents and residents. As more testing becomes available, it will become important that states connect their travel restrictions to available knowledge of the individual’s risk for spreading infection.
• Travel Restrictions: For the President to implement a large-scale domestic travel ban, Congress likely would have to grant him additional powers. That said, Congress does have the authority to restrict travel between states.
• Sanitary Cordons: Steps to prohibit entry or exit into actively infectious areas have not been reviewed by courts in the modern era, but would be challenged by the non-infectious for placing them at significant increased risk for infection. This also “could erode public trust and provoke migrations to safer geographic areas.”