Legal Sidebari

COVID-19: Current Travel Restrictions and
Quarantine Measures
Updated March 12, 2020
The United States, along with many countries, is responding to an outbreak of a respiratory disease, now
referred to as COVID-19, which is caused by a novel coronavirus first detected in mainland China’s
Hubei Province in late 2019. Cases of COVID-19 have now been detected in several countries, including
the United States.
To date, the federal government has taken two key actions to deter persons with suspected COVID-19
infection from entering the country or spreading the virus to persons within the United States. First, the
federal government has restricted the entry of many non-U.S. nationals (aliens) who recently have been
physically present in mainland China, Iran, or the Schengen Area of the European Union (EU). Second,
the federal government has imposed a quarantine requirement on all persons entering the United States,
regardless of citizenship status, who have recently been to those areas. This Legal Sidebar examines the
legal authorities underlying these actions, as well as possible legal challenges to their use.
Entry Restrictions
To deter the entry of aliens into the United States who may have been exposed to COVID-19, President
Trump has invoked his authority over alien entry under Section 212(f) of the Immigration and Nationality
Act (INA). That provision allows the President to “suspend the entry of all aliens, or any class of aliens”
whose entry he “finds . . . would be detrimental to the interests of the United States.” Under this authority,
President Trump has issued three proclamations to restrict the entry of aliens who were recently present in
countries affected by COVID-19. A Proclamation on January 31, 2020, generally suspended the entry of
any foreign national who had been in mainland China at some point within the prior 14 days. But lawful
permanent residents (LPRs), most immediate relatives of U.S. citizens and LPRs, and some other groups,
such as some airplane and ship crew members, are exempted from this restriction, as are those with prior
presence in Hong Kong or Macau. On February 29, 2020, President Trump issued a second Proclamation
that similarly suspends the entry of any foreign national who has been in Iran within the prior 14 days, in
addition to making minor amendments to the earlier Proclamation. Finally, on March 11, 2020, President
Trump issued a Proclamation imposing the same restrictions on foreign nationals who have been in the
Schengen Area (which does not include Ireland or the United Kingdom) within the prior 14 days. To be
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clear, none of the restrictions in the three proclamations applies to U.S. citizens, LPRs, most immediate
relatives of U.S. citizens, and certain other groups.
While this appears to be the first time Section 212(f) has been used to control the spread of a
communicable disease, the provision has been previously invoked to restrict foreign travelers from
coming into the United States. Perhaps most notably, Section 212(f) provided the legal basis for the
Trump Administration’s imposition of the so-called “travel ban” on certain foreign nationals from
designated countries. In the context of a challenge to that invocation of Section 212(f), the Supreme Court
held that the provision “exudes deference to the President in every clause” and gives him mostly
unfettered discretion to decide “when to suspend entry,” “whose entry to suspend,” “for how long,” and
“on what conditions.” In light of the deference afforded to the President’s determinations over these
matters, coupled with the amount of evidence demonstrating the communicability of COVID-19, it seems
unlikely that a court would find that the Proclamations issued with respect to mainland China and Iran
exceed the scope of the President’s authority under Section 212(f).
Quarantine and Isolation
The Administration’s January 31, 2020, Proclamation also directed the Secretary of Homeland Security
“to regulate the travel of persons and aircraft to the United States to facilitate the orderly medical
screening and, where appropriate, quarantine of persons who enter the United States and who may have
been exposed to the virus.” To this end, on February 2, 2020, the U.S. Department of Homeland Security
(DHS) imposed screening and quarantine rules for persons – including U.S. nationals, LPRs, and their
immediate family members – who arrive in the United States within 14 days after having been in
mainland China. Those persons travelling by air must arrive at one of 11 designated airports where they
will be screened. On March 2, 2020, DHS imposed similar requirements for air travelers who were
recently present in Iran, and on March 11, 2020, the Agency stated it intends to impose similar
requirements on U.S. passengers that have been in the Schengen Area. Screened persons will be taken to a
medical facility for isolation and treatment if fever, cough, or difficulty breathing is detected.
Asymptomatic persons are generally to be held under federal quarantine for 14 days from the time they
left mainland China if they visited Hubei Province. But asymptomatic persons whose recent travel did not
include Hubei Province are asked to self-quarantine for 14 days. State and local health authorities are to
provide oversight of individuals who self-quarantine.
Authority for these quarantine rules comes from Section 361 of the Public Health Service Act, which
authorizes the U.S. Department of Health and Human Services (HHS) to promulgate and enforce
regulations “necessary to prevent the introduction, transmission, or spread of communicable diseases
from foreign countries into the States or possessions, or from one State or possession into any other State
or possession.” Besides authorizing the apprehension and examination of “any individual reasonably
believed to be infected with a communicable disease in a qualifying stage” who is “moving or about to
move from a State to another State,” Section 361 also authorizes the apprehension and quarantine of
persons who are not engaged in interstate travel, but are reasonably believed “to be a probable source of
infection to individuals who, while infected with such disease in a qualifying stage, will be moving from a
State to another State.” To facilitate these quarantine requirements, HHS promulgated an interim final
rule, effective February 7, 2020, requiring airlines with flights arriving in the United States to transmit to
HHS’s Centers for Disease Control and Prevention (CDC) identifying information about passengers or
crew who may be at risk of exposure to communicable disease.
In addition to federal quarantine authority, states may quarantine or isolate persons as public health risks
using their police powers. State mandatory quarantine laws vary, with some implemented through public
health orders issued by state health departments, and others effectuated through court orders authorizing
the detention of an individual upon some evidentiary showing that the person poses a public health risk.

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Possible Constitutional Challenges
Because quarantine requirements involve a deprivation of a person’s liberty to move freely, they have
occasionally been challenged on constitutional grounds. Specifically, the Supreme Court “repeatedly has
recognized that civil commitment for any purpose constitutes a significant deprivation of liberty that
requires due process protection.” Accordingly, quarantine measures may be challenged as violating the
Constitution’s substantive or procedural due process protections.
Substantive due process challenges center on whether a governmental action “is so egregious, so
outrageous, that it may fairly be said to shock the contemporary conscience,” without regard to “the
fairness of the procedures used to implement” the action. Recent challenges to quarantine and isolation
for public health reasons have borrowed from substantive due process precedents involving involuntary
commitment. In that context, substantive due process challenges question whether the government has set
forth an adequate justification to support the deprivation of liberty effected by a quarantine policy (a type
of challenge that might also be viewed through an equal protection rather than a due process lens). In
either case, a substantive due process challenge to quarantine policies affecting those suspected of
COVID-19 seems unlikely to succeed given the degree of public health risk posed by the virus. Courts
have recognized that expeditious actions by government officials are frequently required to protect public
health or safety, and have been reluctant to find substantive due process violations even if those actions
are found to be erroneous after the fact.
There might also be concerns as to whether a quarantine policy satisfies the Constitution’s procedural due
process requirements. These requirements concern whether the process attending a particular deprivation
by the government – in this case the restraint on liberty during the quarantine period – is fair. The degree
of protection required by procedural due process is a “flexible” concept, requiring an examination of the
private interests at stake; the risk of an erroneous deprivation of such interest and the probable value of
additional safeguards; and the government’s interests. In the context of state action, the Supreme Court
has said that the Due Process Clause typically “requires some kind of a hearing before the State deprives a
person of liberty,” but has also held that the “necessity of quick action by the State or the impracticality of
providing any predeprivation process” may mean that a post-deprivation remedy is constitutionally
adequate. Here, the government may argue that the contagiousness of the COVID-19 virus may make
predeprivation process impractical before requiring the quarantine of a person suspected of COVID-19
infection.
In 2014, a federal district court applying this standard in the context of a Friday-to-Monday quarantine of
a nurse who had recently been in contact with Ebola patients found that the lack of a predeprivation
hearing was not a clear violation of due process because quarantine is “necessarily prophylactic and
peremptory.” However, the court noted that the relatively short duration of the quarantine (80 hours) also
factored into its conclusion. Moreover, to the extent that post-deprivation procedural due process claims
may be made, government actors may still enjoy qualified immunity to civil liability if the action “does
not violate clearly established statutory or constitutional rights of which a reasonable person would have
known.”
Other Legal Issues
Federal officials have warned that as the United States begins to see “community spread” of COVID-19,
actions taken to limit entry of persons into the country may be less important than domestic quarantine
and isolation of persons already present in the United States. Shifts in the types of actions taken in
response to the disease may also present distinct legal issues from those discussed above. For example,
questions have arisen regarding the employment protections that workers may have under federal laws,
such as the Family and Medical Leave Act (or perhaps under state laws), if those workers fall ill, are

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placed under mandatory quarantine, or choose to stay home voluntarily to avoid exposure to themselves
or others or to take care of an infected family member.
The federal government may also seek to facilitate the distribution of medical countermeasures to
COVID-19 as they continue to develop through the issuance of emergency use authorizations (EUA)
under Section 564 of the Federal Food, Drug, and Cosmetic Act. One such EUA was issued on February
4, 2020, to enable emergency use of the CDC’s real-time COVID-19 diagnostic test. On February 29,
2020, FDA issued additional guidance stating that it would not object to the use of certain diagnostic tests
prior to issuance of an EUA. In addition, the federal government has the authority to waive liability for
manufacturers, distributors, and providers of such countermeasures, under the Public Readiness and
Emergency Preparedness Act, which it most recently invoked with respect to Ebola countermeasures.


Author Information

Edward C. Liu

Legislative Attorney




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LSB10415 · VERSION 2 · UPDATED

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