Updated: Jul 3, 2021
The Organic Act grants the governor broad powers to respond to any public health emergency but her quarantine authority is not absolute and may be subject to judicial scrutiny and legislative guidance, according to the Supreme Court of Guam. “The courts have inherent power to review quarantine regulations and orders issued by (Department of Public Health and Social Services) for arbitrariness, capriciousness, or abuse of discretion,” the Supreme Court said in response to Gov. Lou Leon Guerrero’s request for declaratory judgment on the scope of her quarantine authority.
The governor’s request stemmed from a series of lawsuits filed last year by individuals, who challenged the government’s quarantine policy. In a brief filed in January, Leon Guerrero asked the Supreme Court to “instruct that limits of judicial review don’t extend so far that judges become policymakers but rather that the job of developing and implementing quarantine."
She asked the Supreme Court to declare that "isolation policy lies with the executive and its public health experts.” While acknowledging the governor’s Organic authority to implement public health emergency measures to protect the community against any outbreak, the court said “quarantine orders may be challenged on constitutional grounds” and “it is subject to strict scrutiny.”
“This standard of review reflects the deference to elected officials and the specific grant in the OrganicAct to promulgate quarantine regulations in times of public health crises and does not encroach on the governor’s OrganicAct duties,” the Supreme Court said in a decision released Friday. The Supreme Court clarified that the judicial power “to review and order compliance with the law is not a ‘modification’ of a DPHSS order because the court is not revising or editing a DPHSS order or substituting its policy decisions into a DPHSS order.”
“The exercise of the court’s inherent power of review over agency actions is a judicial function and does not itself generate policy or regulations. Judicial review over the actions of DPHSS, therefore, does not impinge on the governor’s powers and duties.”
The quarantine requirement for incoming passengers is a component of the government’s public safety measures throughout the Covid-19 pandemic.
Arguing that she has “ultimate authority” over quarantine rules, the governor also questioned the constitutionality of two provisions-- Sections 19604 and 19605-- of the Islan Guåhan Emergency Health Powers, which was enacted in 2003.
The governor argued that Sections 19604 and 19605 usurped her Organic authority and violated the principle of separation of powers.
The Supreme Court disagreed with the governor on Section 19604, which sets eight conditions to warrant quarantine.
The court upheld the legislature’s authority to legislate statutes consisting of “broad principles” to guide the governor and DPHSS in promulgating quarantine policy and regulation.
“There are no explicit statutory challenges to quarantine orders in the EHPA because section 19604 does not create a substantive right,” the court said, pointing out that Section 19604 of EHPA “does not violate the separation of powers doctrine and is a valid exercise of legislative power.”
“Section 19604 describes quarantine and quarantine-related principles but does not establish or define procedures or methods to accomplish those goals. Put differently, section 19604 does not generate the quarantine policy itself,” the court said.
“The legislature is not mandating or issuing directives to DPHSS or the governor to implement. Rather, the legislature presents a guide for DPHSS to use when creating specific quarantine policies.”
The provision in question does not prevent the governor from accomplishing her mandated quarantine duties, the court said.
However, the Supreme Court took the governor’s side on her question regarding Section 19605, which limits the quarantine period to 10 days and requires the public health authority to seek judicial approval for a quarantine policy that exceeds the 10-day limit.
The court shut down Section 19605 as “inorganic and void because it violates the separation of powers doctrine by encroaching on the governor’s Organic Act authority over quarantine.”
“Unlike the general language used in section 19604 to ascribe broad principles for quarantine and isolation, section 19605 directs DPHSS to follow specific procedures to lawfully isolate or quarantine individuals,” the Supreme Court said. “In enacting this requirement, the legislature has predetermined the length of an initial quarantine.”
The court said such legislative determination “infringes on the power of the executive to execute quarantine regulations by mandating that DPHSS obtain a court order to keep an individual in quarantine past the 10-day period.”
“This is a hard-fought victory for the people of Guam and a win for our community members who have done what was needed to keep one another safe from this deadly virus. While this is an unprecedented pandemic, the court has acknowledged my executive authority to protect our people from the importation of Covid-19,” Gov. Leon Guerrero said.
“My quarantine policies have always been guided by science and my medical advisors. If it is necessary to expand quarantine protocol again, the full scope of my authority and responsibility will be clearly understood. Even as we approach herd immunity, it is important to continue being vigilant due to the threat posed by the emerging variants--the impact of which cannot be determined at this time.”