May 7, 2020

Wisconsin’s “Safer at Home” Order Isn’t a Quarantine—But that Doesn’t Mean it Isn’t Necessary to Control the Spread of Coronavirus

Lindsay F. Wiley Professor of Law and Director of the Health Law and Policy Program at American University Washington College of Law

The Wisconsin Supreme Court will decide the fate of the state’s “Safer at Home” order any moment now. In doing so, the court is considering the legislature’s argument that the mandate to stay at home (with broad exceptions), prohibition on nonessential travel and gatherings in private spaces, and closure of nonessential businesses amount to a legal “quarantine” and are therefore subject to specific statutory requirements. Department of Health Services (DHS) Secretary-Designee Andrea Palm counters that the department’s quarantine powers “have no relationship” to the Safer-at-Home order, which “quarantines no one.” Palm argues her order, which is scheduled to remain in effect until May 26, is authorized by a broader grant of power to “implement all emergency measures necessary to control communicable diseases.”

Most people had never heard of “social distancing” prior to 2020. “Quarantine” (a much older term used in state and federal statutes to describe isolation of infectious patients and quarantine of their exposed contacts during the incubation period or—more rarely—border controls prohibiting people from entering or leaving an affected facility or community) and “lockdown” (a media invention with no legal meaning) are commonly used to describe the layered interventions that are slowing the spread of infection. But social distancing is distinct from quarantine in the legal sense of the term. Many social distancing interventions do not fall neatly within specific statutory provisions the way quarantine does. Instead, most state and local officials are relying on broad grants of authority to “control communicable diseases.” 

The basic strategy of closing schools and other places where people tend to gather dates back at least as far as the 1918-19 influenza pandemic. As described in a study of archival records by Howard Markel and his coauthors, “nonpharmaceutical interventions were legally enforced and affected large segments of [a] city’s population” for a period of one to ten weeks. The study documented mandatory “[i]solation of ill persons and quarantine of those suspected of having contact with ill persons” as distinct from public school closures and bans on public gatherings ordered by city officials. “Public gathering bans typically meant the closure of saloons, public entertainment venues, sporting events, and indoor gatherings were banned or moved outdoors; outdoor gatherings were not always canceled during this period (eg, Liberty bond parades); there were no recorded bans on shopping in grocery and drug stores.”

The term “social distancing” first appeared in post-9/11 preparedness plans. In the decade following the airliner and anthrax attacks of 2001, federal, state, and local governments invested considerable resources in preparedness. At least one post-9/11 pandemic plan described more extreme forms of social distancing than were used in 1918-19. A 2004 CDC plan for possible resurgence of SARS, which had a case fatality rate of a little under 10 percent and no vaccine, recommended “community-wide measures to increase social distance,” as a strategy distinct from isolation of the infected and quarantine of the exposed. Social distancing was designed to apply to “[a]ll members of a community in which 1) extensive transmission … is occurring, 2) a significant number of cases lack clearly identifiable epidemiologic links at the time of evaluation, and 3) restrictions on persons known to have been exposed [i.e., quarantines] are considered insufficient to prevent further spread.” 

A 2005 Homeland Security Council strategy for pandemic influenza similarly addressed social distancing as a measure distinct from “quarantine authority.” The strategy advised that individuals and families should be prepared for “limitation of attendance at public gatherings and nonessential travel for several days or weeks.” A 2007 CDC plan for pandemic influenza, assuming a case fatality rate of 2 percent or higher and the ability to develop a strain-specific vaccine within about 20 weeks, similarly advised social distancing strategies more in line with those used in the 1918-19 pandemic. The pandemic flu plan advised that “[s]ocial distancing measures can be implemented in a range of community settings, including educational facilities, workplaces, and public places where people gather (e.g., parks, religious institutions, theaters, and sports arenas).”

During the same post-9/11 time frame, many states modernized their public health emergency and infectious disease control statutes. In some states, statutory frameworks give the governor power to issue detailed emergency orders in response to a public health emergency. In Wisconsin, the emergency management statute (Wis. Stat. § 323.10) indicates that the governor, upon declaring a public health emergency, “may designate the department of health services as the lead state agency to respond to that emergency.” The statute defining the scope of the health department’s powers includes an umbrella provision (Wis. Stat. § 252.02(6)) granting power to “authorize and implement all emergency measures necessary to control communicable diseases.” A second broad provision (Wis. Stat. § 252.02(4)) gives the department authority to “issue orders … for the control and suppression of communicable diseases.”

The breadth of these provisions would appear to accommodate any emergency measure deemed “necessary” in a communicable disease outbreak to control the emergency, including the multi-layered social distancing measures adopted by Palm in her “Safer at Home” Order. Of course, in addition to being authorized by statute, these measures must also respect constitutional limits based on civil liberties and the separation of powers. 

Palm’s order, issued with the blessing of Democratic Governor Tony Evers, has been criticized by several members of the state’s Republican-controlled legislature and some justices of the conservative-majority state supreme court. Now the future of the “Safer at Home” order appears to be in jeopardy, following a live-broadcast oral argument held via video conference in which multiple justices expressed disdain for the order.

The first issue on which the court granted the legislature’s petition for original action in Wisconsin Legislature v. Palm raises separation of powers and rulemaking requirements. The second raises the statutory scope of the state health department’s power to respond to the coronavirus pandemic. Civil liberties claims were not raised in the petition, but they did appear to be on the justices’ minds during oral argument.

On the statutory scope of powers issue, the legislature relies on the specific/general canon to argue that the grant of certain specific communicable disease control authorities to the Department of Health Services (DHS) should be read to bar the use of more general authorities to achieve similar purposes. Mandatory orders for the general public to stay at home are not specifically addressed in the statute, but “isolation of a patient” and “quarantine of contacts” are addressed in Wis. Stat. § 252.06. Prohibitions on private gatherings in people’s homes and nonessential business operations are not specifically addressed in the statute, but school closures and prohibitions on “public gatherings in schools, churches, and other places” are addressed in Wis. Stat. § 252.02(3). The legislature’s petition argues that Secretary-Designee Palm’s orders fall outside of the scope of these specific grants of authority and therefore cannot be authorized by separate, broader grants of authority.

Secretary-Designee Palm argues that the section authorizing isolation of patients and quarantine of their contacts “is irrelevant.” Quarantine and isolation powers permit the confinement of an individual to a designated location at all times, with no exceptions for meeting essential needs. Palm describes these measures as “highly restrictive” and “applicable only under special circumstances to a particular individual.” Palm argues the quarantine and isolation statute “says nothing about individuals who have not been diagnosed with a communicable disease, and Safer-at-Home says nothing about imposing those kinds of measures.” As a matter of statutory construction, she has the better argument. Moreover, the broader grants of statutory authority in § 252.02(4) and (6) appear to grant discretion to DHS to determine whether any given emergency measure is “necessary.” The court should recognize the Safer at Home order as falling within the department’s statutory authority, though the justice’s comments at oral argument seem to hint at a more dire outcome. 

Pre-pandemic plans, such as the 2004 plan for SARS resurgence, caution that the most extreme disease control measures “[m]ay be controversial because of infringement on personal liberties,” and that it “[m]ay be difficult to solicit cooperation for extended periods, particularly if the rationale is not readily apparent or was not clearly explained.” They recommend that implementation “[r]equires excellent communication mechanisms to inform affected persons and to maintain public confidence in the appropriateness of the chosen course of action; [m]ay need to provide replacements for affected activities (e.g., school, essential service providers); and [m]ust address mental health and financial support for affected population.” Elected and appointed officials would do well to keep this advice in mind as they navigate the challenges ahead. Clear communication of goals and supports to enable compliance and minimize secondary harms are critical. The public’s trust is a scarce and precious resource in a pandemic and the worst of this crisis may yet be ahead of us. Ultimately, the time may have come for the legislature to weigh in on the next steps in the state’s pandemic response, but lifting executive-branch orders in the meantime via judicial decree would be the wrong approach to that transition.