How Governments Got Their Quarantine Powers

As the new coronavirus swept through Hubei province in China, the world marveled—in a mix of awe and horror—as Beijing implemented drastic measures to curtail its citizens’ movement. Loudspeakers told Wuhan residents to stay inside. Drones patrolled the streets, hectoring those ignoring lockdown. Those critical of the government’s response were arrested arbitrarily.

China’s draconian response was in keeping with its authoritarian nature. Mass quarantining entire cities seems positively dystopian for many Westerners.

And yet, the laws already in place in many democratic countries aren’t so far off the control exercised by Beijing—at least in theory.

Many Western governments, especially former British colonies, have laws on the books that give them extraordinary powers to step in and order quarantines, detain those refusing to self-isolate, and seize assets as required. Even the United States has capabilities that border on totalitarian.

The big question is: Are any of these powers even constitutional?

For many parts of the world, the origins of such powers lie in imperial history. Over centuries of imperial expansion, a major barrier to expanding the reaches of the empire was disease. Before the development of antimalarial drugs, for instance, the death rate for European colonialists in Africa was often higher than 10 percent annually. As germ theory and new drugs broke down those barriers, an obsession with preventing epidemics set in, most focused on protecting those at the top.

The United Kingdom’s quarantine laws automatically sequestered all manner of ships coming from continental Europe and the Ottoman Empire. The Quarantine Act of 1721, however, was incredibly broad and applied arbitrarily. Some ships were forced to sit in harbors for 80 days. Some importers were required to break open bales of cotton and throw the crop over their heads—if the plague lived inside, logic went, the sailors would contract the illness.

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The sometimes-absurd measures gave rise to what was known as the anticontagionist movement. Even if some of the opposition was rooted in faulty science, the movement had prominent backers. The Lancet medical journal was noted for its anticontagionist fervor. In 1841, the journal wrote “the quarantine laws derive their enforcement either in political motives or from despotic feelings.” By the end of the century, the Quarantine Act was repealed outright. Mandatory quarantine was largely over, and authority for containing communicable diseases became more of a local concern in England.

The law was gone, and a national strategy was largely thrown out with it. As one doctor wrote around that time: “Man possesses an infinite capacity for living for the day, and banishing unpleasant thoughts to the future.”

Yet while the U.K. repealed its own laws, various quarantine laws stayed on the books in its colonies—some were left untouched for decades.

Canada imported its Quarantine Act from the United Kingdom and left it largely unaltered until after the SARS epidemic hit in 2003. When Ottawa was called upon to start enforcing quarantines and screening air travelers, there was some confusion as to whether the act only governed maritime travel—per its original intent—or whether it could be expanded to include air travel. Ottawa updated its law in 2005 and gave itself broad powers to detain travelers suspected of being health risks. It even gave the state the power to force people into involuntary medical examinations.

Canadian provinces have similarly potent powers. Police in Quebec recently arrested a woman who tested positive for the coronavirus and was refusing to abide by her mandatory self-isolation, and they have been breaking up parties based on community complaints. Saskatchewan sent emergency alerts to residents’ phones, warning them that ignoring quarantine orders could result in arrest and fines.

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Meanwhile, the Australian Quarantine Act, which had most recently been updated in 1908, was repealed in 2015 and replaced by the Biosecurity Act. The new law was mostly written with insect and animal pests in mind—the government just took the opportunity to replace the quarantine system while they were at it. The law gives the government the authority to order quarantines as well, and it makes refusal to comply punishable by up to a decade in prison.

“For the first time really at a mass level in Australia people might be required to give me information about who they’ve come in contact with at certain points in time,” Australian Attorney General Christian Porter said late last month.

Hong Kong, too, had its own Quarantine Act, dating back to its time as a British territory. That, however, was replaced by new health measures that allow for warrantless detention of people considered health risks. Even still, when Chinese authorities failed to contain the coronavirus to Hubei province, Hong Kong quickly passed even stricter measures, mandating a 14-day quarantine for all those arriving in Hong Kong.

Today, Hong Kong is issuing geolocation bracelets to those entering the country in order to ensure they respect the mandatory self-isolation. So far, though, two-thirds of the bracelets have failed to work.

Jamaica’s Quarantine Act establishes a quarantine committee, which includes health officials as well as captains of shipping and air travel, responsible for declaring emergencies and making public orders.

While other governments have had slapdash approaches to preparing legal safeguards in the event of a pandemic, New Zealand has been slowly building up its legislative toolkit for decades. Wellington drew up quarantine regulations in 1983 and then passed its Epidemic Preparedness Act in 2006. The act gives the federal government authority to declare an epidemic, giving it almost limitless latitude to quarantine people or places, requisition private property, detain individuals, and have police enforce its actions—although subject to oversight from the health authority.

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In the United States, 9/11 and the anthrax attacks that followed underscored how ill-prepared America was to deal with threats posed by a chemical or biological attack or outbreak. While work began then to build strategies, “these efforts have not resulted in a clear picture of the nation’s preparedness,” a report found in 2007. In 2006, the introduction of the Pandemic and All-Hazards Preparedness Act gave the Department of Health and Human Services more power to acquire medical countermeasures and aid states in their response to outbreaks—it does not, however, give Washington much authority to step into state jurisdiction.

Nigeria is an example of how decentralizing power to local authorities can be risky. A 2018 paper found that “national laws on health do not necessarily bind the States.” It recommended that Abuja beef up its laws, especially around disease surveillance. While Nigeria has other health acts it can rely on during crisis, its Quarantine Act is nearly a century old and hasn’t been updated since the 1960s.

While many countries have worked to put in place legal tools to respond to a pandemic such as this, the United Kingdom remained an anticontagionist holdout until recently.

Prime Minister Boris Johnson’s government rushed to fix that in the past week, putting forward a bill in Parliament that would give his government the power to outlaw social gatherings and close businesses and schools. It’s already spurred criticism from human rights groups and privacy advocates.

While many Anglophone democracies have targeted laws to govern health emergencies, most also have broader measures to govern social order—though they are significantly more controversial.

New Zealand has the Civil Defence Emergency Management Act, but it only used the act for the first time after the Christchurch earthquake in 2011. The U.K. has the controversial Civil Contingencies Act. Canada has the Emergencies Act—its predecessor was used to functionally suspend civil liberties and dispatch the military to guard social order during a crisis in the 1970s. In Australia, declarations of emergency differ state by state.

Governments have been reluctant to wield those acts, given their all-encompassing power to curtail individual freedom. Canada has said it would not enforce the Emergencies Act yet. Canadian Health Minister Patty Hajdu indicated that, so long as Canadians follow orders to self-isolate, that act won’t be necessary. “Should we see any sense that that is not happening, we will not hesitate to take stronger measures,” she said.

“When people are playing fast and loose with the rules, it actually does put our civil liberties in jeopardy,” Hajdu added. “It makes governments have to look at more and more stringent measures to actually contain people in their own homes.”

There have been some calls to take that giant step in the United States already as videos of spring break partiers have hit social media.

In the United States, it was President Gerald Ford who first tied a disparate set of powers together to give the White House authority to call national emergencies. Those powers have been used extensively, from prosecuting anti-Vietnam War protesters to, more recently, unlocking funding to build a wall along the border with Mexico. Many of those powers, however, come with restrictions, while others need congressional approval. They still leave many emergency powers to the states.

There are still some fairly expansive powers available to the president, however. Trump, for example, could temporarily permit the federal government to take over radio stations. A study from the Brennan Center for Justice found in 2018 that most of those powers have never been used and that “a large percentage of these authorities appear to be unnecessary and/or outdated.”

Some powers, such as whether Washington can declare a national state of martial law, remain untested. But Washington largely only has the power to order quarantines of people, ships, and planes coming into the United States. According to the Centers for Disease Control and Prevention, domestic quarantines are a responsibility of state law, and “these laws can vary from state to state and can be specific or broad. In some states, local health authorities implement state law.”

On the state level, the CDC published a Model State Emergency Health Powers Act in 2001, encouraging states to adopt their draft text—most states have done so in various ways. Governors in states that have enacted the law have powers to order quarantines and isolation, similar to what is found in New Zealand, Canada, and elsewhere. And where there’s a will to enforce social distancing, there’s a way. Police in New Jersey have broken up weddings, issuing tickets to the guests for “maintaining a nuisance.”

The American Civil Liberties Union (ACLU) has taken aim at the draft state emergencies law written by the CDC, calling it “replete with civil liberties problems” and lacking in checks and balances.

But for now, civil liberties groups around the world seem happy to let governments take firm action to fight the virus. A rights group in Australia lauded Canberra’s use of emergency powers. The Canadian Civil Liberties Association was a bit more circumspect, warning that any expansion of state power “should not be more liberty-restrictive than necessary.” The ACLU, meanwhile, has promised it “will be watching closely” as to how Washington exercises its power.

It’s an open question as to just how far governments will have to go to keep social order and to continue social distancing. New Zealand has invoked its Civil Defence Emergency Management Act and will be implementing a national lockdown, while Canada is inching closer to invoking its own Emergencies Act. If social isolation is required for weeks, or even months, to come, voluntary measures may break down. The use of police and military may be effective in the short term, but there are limits to what even a virus-stricken public will accept.