Shelter in Place/Quarantine
In Terrifying Cosmic Rays, Tokyo is under a shelter in place order while a giant Kaiju monster, Gavadon, appears to threaten the city. In real life, at least one in four Americans (including this author) are under shelter in place or quarantine orders while a microscopic monster, the COVID-19 virus, threatens our health. So this seems like a great opportunity to discuss the legalities of these orders.
Ultraman is of course set in Japan. Japan, unlike the US, has a unitary government, in which the central government has the general police power. In Japan – especially in a version of Japan in which the nation endures random but regular rampaging Kaiju – a shelter in place ordered by Japanese government (national or prefecture) would be unlikely to face any legal challenges. Conversely, the answer to this question is more complicated here in the US, as it depends on what government entity is issuing the order. The US has a federal system of government which divides power between the federal government and the state governments. Under the US Constitution, the federal government is one of limited, enumerated powers – it has only those powers explicitly granted by the constitution – while the states retain the general police power – they have all the powers of government except those that are explicitly withdrawn from their authority by the constitution.
This is true for quarantines as well, despite that quarantines are fairly extreme exceptions to our usual legal (and moral) norm of thoroughly adjudicating any government attempt to detain or otherwise imprison citizens before the state can carry out the detention. Quarantines, by contrast, are an extreme deprivation of liberty based on the mere suspicion that a person has been exposed to a dangerous contagion and often with no immediate means of challenging the decision. Nonetheless, states undoubtedly have the power to quarantine those within their borders, which has been long considered a part of the general police power left to the states by the Tenth Amendment, and there’s a long (and sometimes sordid) history of states enforcing involuntary quarantines. See Jew Ho v. Williamson, 103 F. 10 (C.C.N.D. Cal. 1900), in which a federal court ruled that a quarantine of an entire Chinese district in San Francisco to prevent the spread of bubonic plague violated the Fourteenth Amendment’s guarantee of equal protection of the laws.
It’s less clear if the federal government could order a nationwide shelter in place or quarantine citizens who are not engaged in foreign or interstate travel, and indeed the shelter and quarantine orders thus far have been issued by state and local authorities. This is because, as mentioned above, the US government doesn’t have general police power and must instead source any action in an express provision of the Constitution. Nor does a national emergency create a magical backdoor to the Constitution. Declaring a national emergency increases the President’s powers under various statutes and makes more funding available, but it doesn’t alter the Constitution to make the President dictator, even a temporary one. In short, the President’s authority on this count is extremely dubious. Any nationwide shelter in place order would, in essence, usurp the authority of the many governors who have yet to order statewide lockdowns, and if the President were to attempt such an order, there would be many immediate legal challenges by private citizens as well as angry governors.
Could Congress accomplish a national shelter in place or mass quarantine by suspending the writ of Habeas Corpus? (The President cannot suspend the writ; see Ex parte Merryman, 17 F. Cas. 144 (C.C.D. Md. 1861)). Also likely not, since the constitutional provision for suspending Habeas Corpus is quite specific. US Const. Art. I, § 9, Cl 2.: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” This might plausibly be interpreted to encompass any severe threat to national security. But an interpretation that extends to public health is more controversial, as it would render much of the language of the clause superfluous. This author is unaware of any past suspension of Habeas Corpus on grounds of contagion, and indeed the only times Habeas Corpus has been suspended were during or shortly after the Civil War.
But what about the Commerce Clause? I could easily write a whole separate blog post on whether Congress has the power to order a nationwide shelter in place or quarantine via its power to regulate interstate commerce, which is a hotly debated constitutional provision with a complicated history in the courts. Suffice to say that it is the opinion of this author that any interpretation of the Commerce Clause that would permit Congress to directly regulate the patently non-commercial, intrastate activities of Americans such as visiting the in-state homes of friends and families would extend the Commerce Clause to encompass all human activity and relocate the general police power in the federal government.
Long story short, if a state or city issues an order to shelter in place or even a mass quarantine, there’s no real debate that it’s within their lawful authority. It’s a much more difficult question as to whether the federal government has the power to order a nationwide shelter in place or quarantines, and if it were to do so you should expect legal challenges to follow.
The second obvious question is: What limits are there to the state’s power to lockdown or quarantine their citizens? In theory, Americans are still entitled to due process before being deprived of their liberty. There are serious practical problems with adjudicating a due process challenge to a SIP or quarantine, however. First and foremost, both are typically very brief and it’s nigh impossible to get a case in front of a federal judge in under two weeks. Also there’s the problem of qualified immunity (a doctrine I don’t much approve of anyhow), in which state officials can’t be held liable for money damages if their conduct was not in violation of clearly established law. A shelter in place or quarantine order that was simply mistaken or poorly administered but was nonetheless carried out in good faith is unlikely to meet this bar. But if a state or state official decides to quarantine citizens arbitrarily or in a discriminatory manner, such as the racially-motivated lockdown of Chinatown in Jew Ho v. Williamson, qualified immunity would not shield the state from liability (since it’s clearly established law that state officials cannot discriminate on the basis of race). Even in this extreme circumstance, however, you are only going to be able to seek money damages after the fact because it is unlikely that you would be able to obtain a court order granting you preliminary relief before the shelter in place or quarantine order has already been carried out and completed.
Is there a right to draw Kaiju?
Finally, I want to talk about the scene at the end of the episode, in which our heroes, the Science Special Search Party, walk through a playground full of kids drawing multitudes of Kaiju in chalk on the pavement. The narrator remarks that, although these drawings might someday be hit by cosmic rays and come to life, it is the right of children to draw what they want.
But is it, though? Could the government ban the drawing of Kaiju in order to protect its citizens from rampaging (or napping) Kaiju?
It likely depends on how broad such a ban is. Laws governing artistic expression must be analyzed under the First Amendment’s prohibition of laws that abridge the freedom of speech. A ban on drawing Kaiju is undoubtedly content-based (as opposed to a content-neutral law, such as a noise ordinance), and so would have to pass the highest level of constitutional review, strict scrutiny: the law must serve a compelling government interest and must be narrowly tailored to further that interest (ban no more speech than necessary).
In a world in which drawings of Kaiju that are left exposed to celestial radiation have a small but real chance of coming to life and going on city-destroying rampages, the compelling government interest analysis is undoubtedly satisfied. If the ban were tailored to cover only drawings that are left exposed to cosmic rays (outdoors), then it also almost certainly passes the second hurdle of narrow tailoring. A sweeping ban on all drawings of Kaiju, no matter where they are drawn or displayed, on the other hand, would likely not pass First Amendment muster, since it would not be narrowly tailored to serve the compelling interest of avoiding mass destruction: it includes in its ambit speech that definitely wouldn’t create living Kaiju, like drawings in a book stored indoors.
But assume that when children view these otherwise benign drawings of Kaiju, they are more likely to run outside and draw Kaiju. Could the outright ban pass legal muster under this argument? Still no. In Brown v. Entertainment Merchants Association, 564 U.S. 786 (2011) the Supreme Court rejected a similar argument in defense of a ban on violent video games.
In conclusion, the right of children to draw what they want is not unlimited, and in the face of such a compelling interest as preventing Kaiju attacks, the government would be well within its power to ban drawing Kaiju where they might be hit by terrifying cosmic rays.
