(Bloomberg Opinion) -- A “shelter in place” order has been issued for seven counties around San Francisco, and New York Mayor Bill De Blasio is considering issuing one for New York. Leaving aside the degree of public health necessity, the obvious question is: How can and will such orders be enforced?
The first point to note is that the Bay Area order doesn’t — at present — contain any criminal sanction for violation. It is, in effect, firm guidance rather than government command backed by the threat of criminal penalties. Some European countries are imposing monetary fines for breaking such orders. The San Francisco order doesn’t do that.
The order does “request” that the police “ensure compliance with and enforce this order.” And it declares that violation of the order “constitutes an immediate threat and creates an immediate menace to public health.” But if the police chose to arrest violators, this language would probably not be enough to sustain a criminal conviction. The order is simply too vague; and the punishment for constituting a threat or a public health menace would have to come from some existing statute or ordinance.
Yes, cops likely could lawfully stop people, ask them why they are traveling and then tell them to go home. But that’s a far cry from arrests, whether sporadic or frequent. One reason the order doesn’t provide directly for arrests is that most of its provisions would be impossible to enforce. That’s because it allows so much of daily life to continue.
The order doesn’t bar everyone from leaving home for any reason. It permits people to go out to buy groceries and medicine; to help family members or others in need; to exercise in the fresh air so long as they stay six feet from others; and to do a wide range of “essential” jobs.
These “essential” jobs are broader than you might think. They include jobs necessary to sustain a large class of businesses that will stay open: not only grocery and convenience stores but also “dry goods” stores and all stores that sell groceries alongside non-grocery products. That means everything from a bodega to a big box Walmart or Target will be open — and their employees will be going to work. Banks and hardware stores are also deemed essential and remain functioning.
Transportation remains up and running, including not only public transport but taxis and airlines. The press and media will stay open — which is both the constitutional mandate and a good idea from a public health perspective. Lawyers and accountants can go to work if they are providing services necessary for the function of the essential businesses. (Count on the lawyer who wrote the order to have included the legal profession.) In a San Francisco twist, biotech businesses are also deemed essential.
Thus, the orders aren’t a “lockdown” in the vernacular sense. And it seems highly unlikely that any U.S. state would resort to far-reaching lockdowns enforced by criminal penalties.
It’s not just that the U.S. civil liberties tradition runs deep, although that is certainly a relevant consideration. Rather, the practical difficulty of a more thorough lockdown makes it hard to imagine such an approach functioning effectively. Just about no place in the United States is set up to operate for long without food stores. In turn, those food stores require transportation infrastructure to remain open. Healthcare has to operate, of course. And that in turn requires a whole logistical supply chain. Many people will have to continue moving about no matter what.
Even if that weren’t the case, there probably wouldn’t be enough law enforcement to shut down all movement 24-7. And what would police do if they questioned someone and that person lied about being a provider of essential services? Make an arrest and throw them in jail? Even if that were legal under some form of emergency public health order, if there were broad disobedience, it would soon become impossible to hold the people being arrested.
The takeaway is that while the shelter-in-place orders may well spread very broadly across the country, the consequences are unlikely to be the martial law scenario familiar from the movies. Martial law occurs when a governor exercises statutory authority to put the military in charge of the state. In the U.S., that has basically only ever happened when there was substantial public violence and disorder that the police could not control, such as widespread rioting.
This entire scenario is upsetting, to be sure. There’s lots to feel panicky about. But we shouldn’t panic about a draconian enforcement regime that would push the boundaries of civil order. At least not yet.
This column does not necessarily reflect the opinion of Bloomberg LP and its owners.
Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”
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