President Donald J. Trump, joined by Vice President Mike Pence and members of the White House Coronavirus Task Force, delivers remarks during a coronavirus update briefing March 20, 2020, in the James S. Brady Press Briefing Room of the White House. Official White House Photo: Shealah Craighead

Actions taken by President Donald Trump and state officials in response to the coronavirus pandemic are raising fresh questions about just how far executive powers can go during a public health crisis.

State and local officials are typically given deference in leading the response during a public health crisis, which can lead to a more timely, albeit scattered, response. At the same time, some governors are criticizing Trump for not moving faster at the federal level to offer guidance or additional support to their states.

In a legal fact check updated Monday, the American Bar Association said Trump may have the authority under the Commerce Clause to order a national quarantine or other mandate in response to the pandemic. Trump has not given any indication that he will do so, instead deferring to individual governors, states and local officials to issue such orders.

"American federalism is our greatest strength and our greatest weakness. But the weakness of federalism is really being shown very clearly here when we have a pandemic, a once-in-a-century event that requires a national response in a uniform way," said Lawrence Gostin, a public health law professor at Georgetown University. "We don't have that, we have a patchwork across the states."

"So that patchwork is going to be a big impediment to us, bringing the epidemic under control in the United States," he added.

Trump set off concerns for residents of New York and parts of New Jersey and Connecticut when he said March 28 that he was considering a quarantine for the region to contain the spread of COVID-19.

Hours later, Trump said he would not issue a quarantine, but the Centers for Disease Control and Prevention would issue a travel advisory for those in the tristate area. The next day, Trump announced that federal social distancing guidelines enacted over the respiratory virus will remain in place through April 30.

The U.S. Supreme Court in 1902 upheld local officials' authority to issue statewide quarantines, unless superseded by Congress. Gostin said Congress would have to approve an order blocking people from leaving or entering states, as it's the only body with the power to regulate interstate travel.

Gostin said some of the actions Trump has taken, like closing the borders, are well within his rights as president. But, he said, the president could have taken other steps outside of the legal sphere to unite the country's governors in combating the pandemic.

"He's not provided any guidance to governors about whether they should do aggressive social distancing, many of the red states that support Trump, they're not doing enough. So he's not really coordinating governors and mayors to row with a single oar," Gostin said. "Instead we see the president is criticizing governors, governors are criticizing the president, governors are taking very different actions themselves."

Michele Goodwin, a law professor at the University of California, Irvine, said questions about civil liberties are also being raised by the pandemic.

Michele Goodwin.

She said while authorities may have a right to issue orders to combat the spread of the virus, Americans have to be vigilant that the orders are actually related to the pandemic.

She pointed to the potential tracking of phone location data, to ensure Americans are staying home except for essential needs, as an area that could raise privacy concerns.

"Just because the government has authority to do a thing, it has to be for legitimate reasons, and it can't be expansive beyond the cause or call for that particular issue," Goodwin said.

She further predicted that legal challenges to government actions may also play out after orders issued in response to the pandemic are lifted, as many federal courts have closed down except for emergency and essential proceedings. However, Goodwin noted there may be instances where Americans are seeking injunctive relief in response to the pandemic, and that courts may move swiftly in those cases.

She also said that some executive actions people have called for Trump to take, like utilizing the Defense Production Act, could also raise questions of civil liberties. The president invoked the act March 27 to order General Motors to start making ventilators, a process the manufacturing giant said it had already begun.

"There are some times in which we want the government to use certain powers and authorities and to use them swiftly," Goodwin said. "But again, it must all be measured."

Gostin also raised concerns about how individual judges could approach any challenges filed over actions taken in response to the coronavirus restrictions, noting rulings should be based on scientific evidence.

"Courts don't know how to separate good from not-so-good science," Gostin said.

He said in cases stemming from the pandemics, judges should turn to federal and state health guidelines to help make their rulings.

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