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In April 2020, as debate continued in the U.S. about the need to keep social-distancing restrictions in place to limit the spread of the COVID-19 coronavirus disease, a popular social media post cited an 1866 legal precedent that supposedly precluded governments from using a state of emergency (such as a pandemic) as a reason for restricting individuals’ rights to freely travel or earn a living:

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However, the cited case, Ex parte Milligan, 71 U.S. 2 (1866), was a Civil War-era case about an Indiana resident named Lambdin P. Milligan who was arrested in 1864 by order of a military commander, tried by a military commission, and sentenced to death. 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. The U.S. Supreme Court agreed with him that it was unconstitutional for civilians to be tried by military tribunals while civil courts and authority were still functioning. The Milligan case has no real relevance to the issue of whether federal, state, or local governments may impose mandatory temporary restrictions on movement and travel and business operations in order to deal with emergencies, such as pandemics.

Moreover, the quoted material cited in the post was not part of the Milligan decision (obviously no mid-19th century source would make reference to the U.S. having 50 states), nor part of any valid court ruling or law that we could find. (What source the cited “Section 98” refers to remains a mystery to us.)

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