Thank you for joining me for the first installment of the CT Freedom Alliance blog. Ordinarily, blogs begin with a rather lengthy and detailed description of the purpose of the blog, along with a biography of sorts of the author. But these are not ordinary times. Besides, if you are here you are most likely already a member or follower of the CT Freedom Alliance group, and many of you already know who I am. If you would like more information about the group, you can find it here: www.ctfreedomalliance.org. The mission of this blog is, at this very moment, simply to provide a vehicle through which all of you will, hopefully, gain a bit of order and reason while adjusting to our ever-changing state, country, and globe amidst the mass hysteria resulting from the COVID-19 outbreak. So let’s dive right in.
The foundation of authority is laid firstly in the free consent of people. — Rev. Thomas Hooker, 1638
Some have already self-quarantined either because of illness, or because they or someone in their household is at a high risk of developing serious complications from contracting this coronavirus. As the father of a severely immunocompromised child, I am taking every precaution to ensure that I have as little contact with the outside world as possible. It’s not fun, and it’s not easy, but it’s necessary right now. You know what else it is? MY choice. But what about a mandatory quarantine? Can the federal or state government legally order people to remain in their homes, and impose civil and/or criminal penalties on those who do not comply?
The short answer is yes. While there is some debate as to whether the President or Congress can impose a nationwide quarantine order (see here: https://www.usatoday.com/story/news/factcheck/2020/03/19/fact-check-does-stafford-act-allow-trump-order-quarantine/2872743001/), Connecticut law makes it clear that, if the Governor has declared a public health emergency (as he did on March 10, 2020: https://ctmirror.org/2020/03/10/lamont-is-declaring-a-public-health-emergency/), the Commissioner of the Department of Public Health (DPH) can issue quarantine orders for specific persons, or groups of persons. Section 19a-131b of the Connecticut General Statutes reads, in part:
Sec. 19a-131b. Orders of quarantine or isolation. Appeal of order. Hearing. (a) Notwithstanding the provisions of section 19a-221 or 19a-265, if the Governor has declared a public health emergency, the commissioner [of the Department of Public Health], if so authorized by the Governor pursuant to section 19a-131a, may order into quarantine or isolation, as appropriate, any individual, group of individuals or individuals present within a geographic area whom the commissioner has reasonable grounds to believe to be infected with, or exposed to, a communicable disease or to be contaminated or exposed to contamination or at reasonable risk of having a communicable disease or being contaminated or passing such communicable disease or contamination to other persons if the commissioner determines that such individual or individuals pose a significant threat to the public health and that quarantine or isolation is necessary and the least restrictive alternative to protect or preserve the public health. No individual or group of individuals or individuals present in a geographic area shall be quarantined or isolated unless they meet the conditions in this subsection.
(Emphasis added to last sentence.)
The next section goes on to detail the specific conditions under which the DPH Commissioner can issue a quarantine order:
(b) The commissioner shall adhere to the following conditions and principles when quarantining or isolating individuals, groups of individuals or individuals present within a geographic area: (1) Quarantine and isolation shall be by the least restrictive means necessary to prevent the spread of a communicable disease or contamination to others and may include, but not be limited to, confinement to private homes or other private or public premises; (2) quarantined individuals shall be confined separately from isolated individuals; (3) the health status of quarantined or isolated individuals shall be monitored frequently to determine if they continue to require quarantine or isolation; (4) if a quarantined individual subsequently becomes infected or contaminated or is reasonably believed to have become infected with a communicable disease or contaminated, such individual shall be promptly moved to isolation; (5) quarantined or isolated individuals shall be immediately released when they are no longer infectious or capable of contaminating others or upon the order of a court of competent jurisdiction; (6) the needs of individuals quarantined or isolated shall be addressed in a systematic and competent fashion, including, but not limited to, providing adequate food, clothing, shelter, means of communication with those in quarantine or isolation and outside those settings, medication and competent medical care; (7) premises used for quarantine and isolation shall be maintained in a safe and hygienic manner and be designed to minimize the likelihood of further transmission of infection or other harms to individuals quarantined or isolated; (8) to the extent possible without jeopardizing the public health, family members and members of a household shall be kept together, and guardians shall stay with their minor wards; and (9) to the extent possible, cultural and religious beliefs shall be considered in addressing the needs of individuals and establishing and maintaining premises used for quarantine and isolation.
The statute also specifies that “[t]he order shall be effective for not more than twenty days, provided further orders of quarantine or isolation meeting the requirements of this section may be issued as to any respondent for successive periods of not more than twenty days if issued before the last business day of the preceding period of quarantine or isolation.” As you can see, the legislature was careful to ensure that quarantine orders were made only when absolutely necessary, by the least restrictive means possible, and for a limited duration. The statute also contains a mechanism for a quarantined individual to appeal the quarantine order to the Probate Court for the district in which the person is quarantined. These protections are built into the law to ensure that a person is not deprived of his/her liberty without due process of law, as required by the Fourteenth Amendment of the U.S. Constitution.
Nonetheless, the statute gives the Commissioner broad discretion to determine who may be quarantined in order to protect the public health. Again, this includes “any individual, group of individuals or individuals present within a geographic area whom the commissioner has reasonable grounds to believe to be infected with, or exposed to, a communicable disease or to be contaminated or exposed to contamination or at reasonable risk of having a communicable disease or being contaminated or passing such communicable disease or contamination to other persons if the commissioner determines that such individual or individuals pose a significant threat to the public health and that quarantine or isolation is necessary and the least restrictive alternative to protect or preserve the public health.” Conceivably, that could include every person in the State of Connecticut right now. What constitutes “reasonable grounds” for believing that a person is a risk? The statute does not say. That question would have to be answered by a judge.
The bigger problem, as you may have already guessed by the quote and photograph above, is that a person can be quarantined against his/her will. As one of Connecticut’s Founding Fathers, the Reverend Thomas Hooker, proclaimed in a sermon nearly 400 years ago, the government’s authority must be founded above all else on the free consent of the people. Some may argue that the people of Connecticut have consented to the quarantine laws because it was passed by the representatives elected by the people. But this is what is known as a “legal fiction.” We say that the people have consented, but the consent is constructive at best, not in fact. The above quarantine law was first passed in 2003, before many residents lived in Connecticut, and before others were even born. (For the record, I was not a resident of Connecticut in 2003.) And even for those who were residents of Connecticut when the law was passed, if his/her elected representative voted against the bill, and the Governor for whom he/she did not vote signed it into law, can it really be said that there was any true consent?
As a practical matter, of course, you are deemed to consent to be governed by the laws of any state in which you reside, travel to, or do business with, whether physically or virtually. And regardless of whether one voted for a particular representative/senator/Governor, when a law is passed by both chambers of the legislature and signed into law by the Governor, it is the law that all must obey. Any other system of governance would be untenable, since it would result in a different set of laws applying to each person. That would be mayhem far worse than anything we are seeing now!
The point is this: if you are quarantined, you have recourse to appeal that decision to the courts. The quarantine power is not absolute. No emergency, however severe, can grant to any elected or appointed official the power to unilaterally strip you of your God-given, unalienable rights without clear justification and due process of law. As long our Republic and its Constitution endures, you are a free people…even if you are locked inside of your house.