US Supreme Court did not ban distancing orders
Molly Stellino
Claim: The 1866 U.S. Supreme Court ruling Ex parte Milligan deemed government-mandated emergency measures such as social distancing unconstitutional
As states slowly reopen businesses to prevent further economic recession, individuals fatigued by social distancing measures and stay-at-home orders publicly have questioned the legality of such mandates.
A Facebook user in April posted a photo of an earlier post that allegedly had been taken down. It claims an 1866 Supreme Court ruling determined that government-mandated emergency orders such as social distancing infringe on constitutional rights.
The post, which has been shared more than 10,000 times, reads: “This is NOT an opinion. This was the ruling of the United States Supreme Court shortly after the ‘Civil War’ in Ex parte Milligan, 71 U.S. 2 (1866) which yet stands to this day: Neither the legislature nor any executive or judicial officer may disregard the provisions of the constitution in case of emergency…”
The post then quotes what the user claims to be Section 98 of the court’s opinion, which says any enforcement by officials to suspend “constitutionally guaranteed rights (to freely travel, peacefully assemble, earn a living, freely worship, etc.)” as “making war against our constitution.”
USA TODAY reached out to the author of the post for comment but did not receive a response.
What the court case determined
The Civil War-era 1866 Supreme Court case Ex parte Milligan was sparked by the military arrest, prosecution and death sentence of an Indiana man named Lambdin P. Milligan. A military court formed under the authority of President Abraham Lincoln charged him with aiding the Confederacy.
Milligan’s lawyers “sought a writ of habeas corpus,” according to the Encyclopedia
Britannica, and argued it was unconstitutional to be tried by military tribunals while civil courts continued to operate.
“Milligan contended that as he was not serving in the U.S. military, was not a prisoner of war, and was not living in a part of the U.S. that was in rebellion against the federal government, the U.S. military had no jurisdiction to arrest, try, and sentence him,” Snopes reported.
The Supreme Court unanimously decided the military did not have authority to establish military tribunals in secure areas that had functioning civil courts. A majority of the court declared Congress also lacked the power to do so.
Ex parte Milligan does not involve the authority of the government in restricting individual liberties during a public health emergency, as claimed in the Facebook post. It instead pertains to the powers of the president and Congress during a “theatre of war,” when a region is directly involved in war operations.
As for the Facebook’s post’s quote of the court ruling, the excerpt likely is a fabrication.
USA TODAY could not find a Section 98 or any of the content quoted in the post, which also erroneously mentions the supposed existence of 50 U.S. states in 1866. In that year, 14 states had yet to be admitted to the union, with Hawaii, the 50th state, gaining statehood in 1959.
The right to protect the public
The government’s right to use police power to protect public health was upheld by the 1905 Supreme Court case Jacobsen v. Massachusetts, which as Snopes reported affirmed “the legal right of state legislatures to pass laws mandating use of smallpox vaccine by residents” and to enact reasonable regulations in the interest of public health.
The U.S. Centers for Disease Control and Prevention website states that authority is likewise sustained by Section 361 of the Public Health Service Act, which grants the federal government power “to take measures to prevent the entry and spread of communicable diseases from foreign countries into the United States and between states.”
Our ruling: False
The 1866 Supreme Court case Ex parte Milligan does not pertain to the authority of the state during a public health emergency. Additionally, the information cited in the Facebook post is not found in the Supreme Court opinion.
Both the Supreme Court case Jacobsen v. Massachusetts and the Public Health Service Act back up the government’s authority to enforce social distancing and similar policies in the interest of public health.