After nurses and doctors at the Texas Health Presbyterian Hospital in Dallas initially mishandled the case of Ebola-infected patient Thomas Duncan, Texas state and local officials placed Duncan’s girlfriend and three of her family members under quarantine. No one in Dallas who was exposed to Duncan (or to other people who were exposed to Duncan) has yet shown symptoms of Ebola, but the incubation period is up to three weeks. By preventing contact between those most at risk and the general public, health officials are attempting to prevent Ebola from spreading to the general population. Meanwhile, as this column goes to press, Duncan himself is hospitalized in critical condition.
News reports so far indicate that the four people subject to quarantine in Dallas are cooperating with public authorities. But should Ebola—or some other deadly disease—spread, public health and law enforcement officials may confront people who object to restrictions on their freedom. Would such people have valid legal claims?
Preventing a deadly epidemic is a public goal of the highest order. But large-scale quarantines of healthy people have not been used in the United States since the Spanish flu epidemic that coincided with the last years of World War I. Large-scale forced isolation of sick individuals waned with the effective development of a polio vaccine in the 1950s. Since then, the Supreme Court has articulated constitutional limits that create some uncertainty over the scope of quarantine and isolation authority.
State and Federal Quarantine Authority
The federal Constitution nowhere expressly mentions quarantine, although Article I, Section 10 does acknowledge state power to enact and enforce “inspection laws.” More broadly, because the Tenth Amendment reserves to the states those powers not delegated to the federal government, it has long been understood that states may quarantine. Thus, in the landmark 1824 case of Gibbons v. Ogden, Chief Justice John Marshall’s unanimous Supreme Court opinion stated unequivocally that enacting quarantine laws is among the powers reserved to the states (and by extension, to local governments acting with authority granted by the states).
In addition, Marshall acknowledged that two federal statutes—one enacted in 1796 and the other enacted in 1799—authorized the federal government “to assist in the execution of the quarantine and health laws of” the states. He added that no one denied the validity of these federal laws. Nonetheless, there is some doubt about the current scope of federal authority to adopt quarantine measures.
Today, as in the early days of the Republic, the federal government could certainly assist states that seek federal help in enforcing their own quarantines. But it appears that neither Congress nor the President could order state officials to implement a quarantine.
The Supreme Court’s 1997 decision in Printz v. New York holds that the federal government lacks authority to “commandeer” state or local officials who would rather pursue their own priorities. Writing for himself and three of his colleagues in that case, Justice John Paul Stevens objected that under the rule announced by the majority, the federal government would be powerless to confront an “emergency” such as “an epidemic” that could “require a national response before federal personnel can be made available to respond.” Nonetheless, Stevens was outvoted by the majority, apparently leaving the federal government without power to order a state response to an epidemic.
What about the federal government’s power to enforce its own quarantine laws directly? A federal statute authorizes the Surgeon General and other federal officials to adopt quarantines to prevent the spread of communicable disease from other countries or across state lines. A federal executive order, last revised just months ago by President Obama, already listed Ebola as a “quarantinable communicable disease.”
Presumably the federal quarantine law and the implementing regulations and executive orders fall within the power of Congress to regulate foreign and interstate commerce, although some recent statements by the Supreme Court’s conservative Justices call even that authority into question.
For example, dissenting in the 2010 case of United States v. Comstock, Justices Clarence Thomas and Antonin Scalia objected to a federal law permitting civil detention of mentally ill, sexually dangerous prisoners who had served their criminal sentence but would pose a danger to the public if released. Protecting the public from danger by confining people is not an enumerated federal power, they said, and is thus reserved to the states.
To be sure, a clear majority in Comstock upheld the challenged law. But that was not because they recognized any general federal power to protect the public safety by confining people. Instead, the majority found that the law was “necessary and proper” to carrying out the criminal laws enacted under Congress’s enumerated powers.
In order to sustain existing federal quarantine authority, the Court would need to find that the spread of disease either is, or affects, foreign or interstate commerce. The connection here seems clear: Beyond the devastation they cause to individual lives, deadly diseases exact an enormous toll on the economy. But then, so do gun violence near schools and gender-motivated violence; yet the Court, in a pair of decisions from 1995 and 2000, held that Congress could not regulate those matters because the underlying object of regulation was not “economic activity.” Neither, it would seem, is sickness an economic activity.
Accordingly, recent decisions by the Supreme Court’s conservative majority limiting federal authority in favor of states’ rights cast some doubt on federal quarantine authority. Nonetheless, the federal quarantine law would probably be upheld on the ground that it targets the spread of disease from other countries and across state lines. Movement across such boundaries can sometimes serve as the predicate for federal regulation, even when the underlying subject matter is not directly related to economic activity.
Assuming that the federal, state, and/or local officials seeking to implement a quarantine have the authority to do so, the Constitution may place additional limits on how a quarantine is carried out.
In order for the government to imprison a person as punishment, it must prove his or her guilt beyond a reasonable doubt. But the government sometimes deprives people of their liberty not as punishment, but to protect the public safety. Pre-trial detainees found to be a flight risk or danger may be held based on probable cause to believe they have committed a crime, while others may be civilly committed based on proof that they suffer from a mental illness or similar condition and pose a threat to themselves or others.
In the 1979 case of Addington v. Texas, the Supreme Court held that proof beyond a reasonable doubt was not necessary for civil commitment but that a mere preponderance of the evidence (more likely than not) was insufficiently protective of liberty. The Court thought that proof by “clear and convincing evidence” struck the right balance, and subsequent cases insist on that threshold.
The civil confinement cases might therefore suggest that attempts to confine people because they are infected with a contagious disease should also be tested by the clear-and-convincing evidence standard. But as various academic articles note, that approach would be unworkable. If even one in a thousand people is likely to pose a risk of infecting the general public with a highly contagious deadly disease, then the government should be able to quarantine all one thousand, even though the probability that any one of them is infected is far below even a preponderance, much less clear and convincing evidence.
It does not follow, however, that government officials should be permitted to issue quarantine orders without any judicial oversight. A person subject to quarantine—or given the numbers that could be involved, a class action representative suing on behalf of many people subject to quarantine—should be permitted to challenge the quarantine itself.
Public health officials appear to disagree about the efficacy of quarantine measures. Accordingly, a plaintiff’s mere invocation of that disagreement should not be enough to secure the judicial invalidation of a quarantine. Otherwise, the government could never implement a quarantine.
At the same time, however, quarantine amounts to an extraordinarily serious limitation on liberty. Moreover, even a quarantine that is justified for purposes of preventing the spread of a disease to the general population can put the individuals subject to the quarantine at greater risk of becoming sick themselves—by concentrating them among others with a higher risk of being infected. Accordingly, judicial review of government officials’ claims that a quarantine is necessary to protect public health should not be a mere rubber stamp.
Exactly what that would mean in practice is not yet clear. Let’s hope that the need for clarification does not soon arise.