The response of federal, state, and local authorities to the (actual and perceived) threat of an Ebola outbreak in the United States raises a number of legal questions. In a column last month, I explained that state and local governments undoubtedly have the authority to enact quarantine measures and that while recent Supreme Court precedents could be taken to cast some doubt on the power of the federal government in this area, the case law is best read to allow broad federal power as well.
To say that a government has the affirmative power to address a problem, however, is not to say that there are no limits on how it exercises that power. For example, government has the power to imprison people for committing crimes, but it cannot do so except after a defendant has pleaded guilty or been found guilty beyond a reasonable doubt. Likewise here, state and federal constitutional and statutory provisions may place limits on when and how the government can implement a quarantine.
Last week, my Verdict colleagues Marci Hamilton and John Dean respectively considered religious freedom claims that might be raised against an Ebola quarantine and the panic-driven overreaction of some politicians to the Ebola threat. In this column, I will explore the federal constitutional question of what government must show in order to implement a quarantine at all. As I explain below, the underlying law is profoundly unclear because the relevant precedents long post-date the era of government quarantines. We can nonetheless gain insight into how the courts might rule by looking at how they responded a decade ago to the Bush Administration post-9/11 detention policy.
The Constitutional Framework for Evaluating Quarantines
Modern scientists understand that most communicable diseases are caused by microscopic viruses, bacteria, and other pathogens, but long before the widespread acceptance of the germ theory, people knew that exposure to illness risked the transmission of illness. From the time of Hippocrates through the (inadequate) efforts of medieval states to avoid the plague, the ill were isolated, and exposed but otherwise healthy people were subject to quarantine. Thus, in the early American Republic, it was taken for granted that states could quarantine people without raising any substantial issues of civil liberties.
Even prior to the recent Ebola fears, government authorities had from time to time sought to isolate (already ill people) or to quarantine (people who may be ill) to protect the public against such diseases as tuberculosis. However, wide-scale quarantines of apparently healthy people have not been used for nearly a century, and during the intervening period, constitutional law has become more protective of civil liberties. Following what is sometimes called the “rights revolution” of the 1960s Warren Court, we now expect that government must offer a substantial justification for confining people against their will.
Although imprisonment for conviction of crime is well accepted, modern constitutional law imposes limits on other forms of confinement, such as pre-trial detention, civil commitment of the mentally ill and dangerous, debtors’ prison, and the detention of enemy combatants. That last category could prove especially instructive in predicting the courts’ response to restrictive Ebola quarantines like the ones that New Jersey and Maine have thus far unsuccessfully attempted to apply to nurse Kaci Hickox following her return from a medical mission in Sierra Leone.
The Guantanamo Bay Precedents
To understand how litigation over the Bush Administration policies in (what was then called) the war on terror are relevant to Ebola quarantines, it may be useful to look at the decision of the Administration to establish a detention camp at the U.S. Naval Base on Guantanamo Bay, Cuba, in early 2002. Why did the government choose to hold people captive on a remote island rather than closer to where they were apprehended or in the United States proper?
The official explanation went something like this: For the “worst of the worst” enemy fighters, detention near the point of apprehension—on a U.S. military base in Afghanistan, say—would pose too great a risk that they could escape to rejoin the fight. At the same time, detention in the United States itself—even on a military base—could pose a risk to our civilian population. Detention at Gitmo enabled the government to isolate enemy combatants from people who might help them escape and from American civilians whom they might endanger.
That public explanation was plausible, but critics of the Bush Administration policy suspected that there was also an ulterior motive: Holding captives at Gitmo would enable the Administration to exercise completely secure control over them but, because they were technically on foreign soil, would not subject the detention policies to judicial supervision. And indeed, when lawyers acting on behalf of the detainees challenged their detention as unlawful, the Bush Administration argued that the courts had no authority to intervene.
The government’s legal position was not crazy. It relied on precedents established during earlier military conflicts, especially two key World War II-era decisions. In Ex Parte Quirin, the U.S. Supreme Court drew a sharp distinction between lawful enemy combatants—entitled, if captured, to be treated as prisoners of war—and unlawful combatants—who have far fewer rights. And in Johnson v. Eisentrager the Court held that an enemy alien combatant held outside the United States has no access to U.S. courts. Putting these two cases (and others) together, advisors to President Bush assumed that they could do pretty much whatever they wished to the guerrilla fighters of al Q’aeda and the Taliban, so long as they were classified as unlawful combatants and kept off of American soil.
As Benjamin Wittes explains in a chapter of my book, Constitutional Law Stories, the legal strategy did not fail because the Bush lawyers misread the World War II-era cases. It failed because they did not take account of how much the legal landscape had shifted in the intervening half century. Quirin and Eisentrager were decided during the same period as the Court’s infamous ruling in Korematsu v. United States, which upheld the wholesale exclusion of tens of thousands of persons of Japanese ancestry—most of them U.S. citizens—from the west coast. As politicians and judges belatedly came to grips with that shameful episode in the ensuing decades, they eventually learned the lesson that a constitutional democracy cannot give to military authorities the sort of complete deference that was characteristic of the Korematsu, Quirin, and Eisentrager decisions.
As Justice Sandra Day O’Connor wrote in the lead opinion rejecting the Bush Administration’s claim for unreviewable detention authority in Hamdi v. Rumsfeld, “a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens.” Likewise with respect to aliens detained at Gitmo, Justice Anthony Kennedy wrote for the Court in Boumediene v. Bush, the government cannot escape its obligation to respect the right to habeas corpus by relying on “technical,” rather than “functional” conceptions of sovereignty.
As a formal matter, the Court’s decisions in Hamdi and Boumediene distinguish rather than overrule Quirin and Eisentrager, respectively. But their tone is completely different from the earlier cases. They reflect a post-Korematsu attitude in the American judiciary, in which courts play an important role in reviewing broad government claims of detention authority.
Lessons for Ebola Quarantines
The Guantanamo Bay litigation should be a warning to state government officials who think that quarantine policies that were acceptable a century or more ago will automatically pass muster today.
At the same time, however, civil libertarians should wait before opening the champagne. The Gitmo cases rejected the Bush Administration’s extremely broad claims for unreviewable detention authority, but they did not subject the military claims to anything like the exacting judicial scrutiny that we see in other contexts.
For example, in Hamdi, four Justices thought that the Bush detention policy was simply illegal, at least as applied to U.S. citizens. But a majority rejected their arguments. Although they did not hand the Administration a blank check, they pretty clearly raised the government’s credit limit.
To shift the metaphor, the Guantanamo Bay cases can be understood as a yellow light for the government’s detention policies. They reject claims for complete deference and hastily drawn executive policies. But they leave substantial room for aggressive measures if that is what politicians want. After all, in 2008, candidate Barack Obama promised to close the Guantanamo Bay prison, but today, six years after his election as President, the prison remains open for business thanks to congressional pushback.
Should civil libertarians be cheered or dejected by the Gitmo precedent? The answer is a little of both. In the modern era, civil libertarians can probably rely on the courts to reject the most outrageous detention policies. But courts are unlikely to reject policies that are “merely” misguided or unwise. To defeat those sorts of policies, civil libertarians must win in the court of public opinion.