Travel Bans and Mandatory Quarantines: Ebola Panic Calls for Clarifying the Law

There is way too much demagoguery over the handling of the African Ebola epidemic. Politicians are pretending to be public health experts, not to mention unnecessarily causing public alarm. It is playing out at both the state and federal level, with politicians calling for two main tactics to prevent the spread of Ebola in the United States: Travel bans from afflicted countries and mandatory quarantines of potentially infected persons.

Neither political approach will solve the problem of Ebola; rather they will cause compounding problems for healthcare personnel forced to deal with the willfully ignorant politicians claiming solutions not based on any medical knowledge. Moreover, these political remedies are fraught with legal problems.

Mandatory Quarantines

Fellow columnist Mike Dorf saw the mandatory quarantine issues coming in his October 8, 2014, column “Containing Ebola: Quarantine and the Constitution,” and he will have more to say soon about the civil liberties problems associated with quarantine. These are no longer hypothetical issues. A number of states, contrary to the recommendations of the Obama Administration and the Centers for Disease Control and Prevention (CDC), are imposing mandatory quarantines on healthcare professionals and others returning from West Africa who may or may not have been infectiously exposed to Ebola.

For example, New Jersey Governor Chris Christie literally imprisoned nurse Kaci Hickox upon her return to the United States after she had been working with Ebola victims in West Africa as part of Doctors Without Borders. Rather than being received like the heroine she is, Ms. Hickox reports she was treated like a criminal and a leper. After seven hours of interrogation at the airport and already exhausted from two days of travel from Sierra Leone, she was sent to an isolation tent outside a New Jersey hospital with no running water, and a porta potty. And despite having no signs or symptoms of Ebola, she was told she would have to remain in this tent for twenty-one days, the incubation period for Ebola. Ms. Hickox, however took on Governor Christie by hiring a lawyer and using her iPhone, and successfully convinced Christie to allow her to return to her home in upstate Maine.

But when she returned home, she was again quarantined by another tough talking Republican governor running for reelections, Paul LaPage, who further inflamed the issues with Ms. Hickox, treating this professional nurse as a terrorist with a germ warfare weapon, although she still had no signs of being contagious. The Hickox case, reported by CNN, illuminates the two sides of this debate. Grandstanding politicians want everyone with any possible contact with Ebola—even people like Ms. Hickox who have had controlled contact with infected people—off the street, out of circulation, and confined for the full 21-day incubation period of the virus. On the other side are the professionals who deal with deadly infectious diseases on a daily basis, who find no scientific reason to treat professional heath care workers, or foreign nationals who live in the same country, as if they are carriers of the disease when they exhibit no symptoms. The CDC and medical experts say it is not necessary for a person who has merely treated Ebola patients to be quarantined, and as long as they have no symptoms, they cannot spread the disease. Under the CDC guidelines, persons exposed to Ebola should self-monitor for 21 days, but as long as they have no symptoms, they cannot transmit the disease.

Nurse Hickox, like the CDC and Obama Administration, is worried that others will not volunteer to assist Ebola victims who desperately need help. For one thing, not everyone who contracts the disease dies, but even those for whom the disease proves lethal, nurses like Ms. Hickox can assist them in passing with dignity. As Ms. Hickox explains, if they are going to be imprisoned for three weeks when they return to the United States, American nurses are not going to assist. In short, the unfounded fear being generated by politicians is only hurting persons who are assisting with controlling and eradicating Ebola, and contrary to claims of politicians, health care professionals are acting reasonably based on the well established medical science relating to Ebola.

Kaci Hickox has made clear that she has no interest in putting anyone else at danger. Nonetheless, she is not going to comply with a fear-driven, scientifically unjustified, over-the-top quarantine. If Maine Governor Paul LePage tries to force Ms. Hickox into quarantine, her lawyers say they will take the issue to the courts to resolve. As one of her lawyers points out it is unclear how this will play out in court because “we’re treading in areas” in which “there’s not a whole lot of case law.” Meanwhile, Ms. Hickox’s lawyers and Governor LePage are negotiating over what Kaci Hickox can and cannot do as the incubation period runs its course. Frankly, I hope this matter goes to court to clarify the law, for presumably in a courtroom, science and facts based on hard evidence along with solid legal analysis will trump fear and demagoguery.

Fortunately, President Obama and his cabinet and staff have not responded to the knee-jerk reactions of the less-than-thoughtful politicians.

Travel Bans on Ebola-Plagued Countries

When reports of the Ebola virus ravaging West Africa first surfaced, many of the GOP presidential wannabes began calling for travel bans from the afflicted countries. For example, Texas Tea Party Republican Senator Ted Cruz claimed the federal government was not doing “everything possible to ensure that people infected with Ebola do not come to the United States and enter the general population.” Cruz wanted the Obama Administration to shut down air travel from Liberia, Sierra Leone or Guinea to the United States, notwithstanding the fact there are no direct flights from these countries.

Realizing such a ban would fail, next Republicans called for denying travel visas to the United States from these countries. Members of Congress sent letters to Secretary of State John Kerry and Department of Homeland Security (DHS) Secretary Jeh Johnson on October 15 calling for such action. A few days later, after the President created and implemented a screening process (checking temperatures of those coming from West Africa) at U.S. key airports, the White House publicly addressed the visa issue. The White House dismissed the called for blanket visa ban, explaining: “Now, if we were to put in place a travel ban or a visa ban, it would provide a direct incentive for individuals seeking to travel to the United States to go underground and to seek to evade this screening and to not be candid about their travel history in order to enter the country. And that means it would be much harder for us to keep tabs on these individuals and … to protect them and to protect, more importantly, the American public.”

The Washington Post reports such visa bans would cause further economic damage to the afflicted countries and add difficulty getting health care workers in and out of these countries to assist in fighting the epidemic. Nine airlines have already stopped serving these countries, and if the remaining two pulled out, which the blanket visa ban would likely cause, it would only make dealing with the problem more difficult. Finally, the Post points out, the U.S. State Department has already issued a travel advisory for the region, and historically such travel bans have not been effective in preventing the spread of diseases anyway.

There are also legal issues. While foreign nationals do not have a constitutional right to enter the United States, it is not clear that the President can issue a blanket ban on aliens being given a visa from specific countries that are experiencing the deadly epidemic. To advise members of Congress, the Congressional Research Service (CRS) has issued two broad legal summaries of the President’s powers to institute such a travel ban: The first on October 6, 2014 (“The Ebola Outbreak: Select Legal Issues”) followed by a second on October 23, 2014 (“Can the President Bar Foreign Travelers from Ebola-Stricken Countries from Entering the United States”). These documents have been published by the Federation of American Scientists.

The CRS analysis notes that the U.S. Supreme Court held in Zemel v. Rusk (1965) that a Secretary of State, pursuant to a presidential directive, can impose restrictions on passports to travel to countries “where there is imminent danger to the public health or the physical safety of United States travellers” [sic]. These restrictions can be placed on the travel of Americans, but so far no such action has been taken. In addition, CRS explains that while the President has broad powers to restrict a foreign national coming into the United States on specific health-related grounds, there are only limited restrictions that can be placed on U.S. citizens who wish to reenter the United States. Thus, Americans who have traveled to the affected West African nations cannot be blocked from returning home.

However, under Department of Transportation regulations, airlines can refuse to carry passengers with infectious diseases when it has been determined they in fact pose a direct threat to the health and safety of others. Airlines can rely on the CDC and other government agency directives in these situations, but no such directives have been issued regarding Ebola. The CDC and the Department of Homeland Security maintain public health “Do Not Board” lists, and have such a list for Ebola victims. Airlines are forbidden from issuing boarding passes to these people, but the names of the people on the lists and whether the lists are currently being implemented are not public information. Finally, the CDC and DHS can and in fact are conducting screenings at foreign and American airports to identify travelers with communicable diseases, with the effort focused on select American airports.

The CRS legal summary finds no precedent for a President to do what many Republicans wish him to do: simply ban travel by anyone and everyone who might have been in the Ebola-stricken West African countries. The authority the President does have under the Immigration and Nationality Act (INA), section 212(a)(1), is limited to foreign nationals who actually have a “communicable disease of public health significance” like Ebola, meaning they have tested positive for the disease—not those who have merely treated or been in contact with those who have Ebola, and who evidence no sign of the disease, like Kaci Hickox.

To reach people like Kaci, who are without symptoms and who have merely been in Sierra Leone, Guinea, and Liberia, several members of Congress have urged the President to rely on section 212(f) of the INA. Section 212(f) provides: “Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or non-immigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.” CRS acknowledges that this the broad language, which has been used to bar entry of terrorists and persons associated with foreign governments that engage in horrendous human rights violations, has never been used for a travel ban because of public health concerns.

I seriously doubt it could be so used. How could a President find that allowing entry to a citizen from a country stricken by Ebola, or a visitor to that country, simply by the fact of being from or in that country without any symptoms of Ebola whatsoever, “would be detrimental to the interest of the United States.” What is the detriment? That after 21 days they might test positive for Ebola, and have to be treated for the disease. Contracting Ebola does not mean automatic death. And why limit it to Ebola when there are many other deadly infectious diseases? To say that too many politicians, and members of Congress who should know better, are reacting politically, not medically or thoughtfully, is an understatement. This largely Republican hand-wring over Ebola is ludicrous in a country with a gun epidemic that will kill some 30,000 Americans every year—a killer epidemic that the GOP actually encourages. Hopefully the politicians will get reasonable, for many more Americans will die from falling off ladders this year—approximately 120—than from Ebola, yet Republicans are not demanding ladders be quarantined or banned from manufacture in, or importation to, the United States.

Author Note: Within twelve hours of posting this column the New York Times reported that Judge Charles C. LaVerdiere, the chief judge for the Maine District Courts, ruled that nurse Kaci Hickox showed no signs of Ebola, therefore she could not be quarantined. The Times notes, “The order requires Ms. Hickox to submit to daily monitoring for symptoms, to coordinate her travel with state health officials, and to notify them immediately if symptoms appear. Ms. Hickox has agreed to follow the requirements.” Remarkably, Governor LePage called the common sense decision “unfortunate.”