Is Quarantine Constitutional?
Recently, my Inns of Court group gave a presentation on the law of Quarantine. Through vignettes set on a BART train, we explored how the ancient law of quarantine is applied to our modern society. We touched on the world history of quarantine, bringing it to our present day and community. The players were Judge Joyce Cram, Ret., Commissioner Don Green, Ret., Nancy Allard, Wally Hesseltine, Kristen Howe, Rodney Marraccini, Lisa Mendes, Jennifer Sommer and myself.
Here is a sample of the interesting information we studied. For an automatic reminder of the next question and answer please subscribe to my blog on my Home Page. See “Receive Free Tips & Updates” in the lower right-hand corner.
Is Quarantine Constitutional?
The federal government derives its authority for isolation and quarantine from the Commerce Clause of the U.S. Constitution.
Per Section 361 of the Public Health Service Act (42 U.S. Code § 264), the U.S. Secretary of Health and Human Services (HHS) is authorized to take measures to prevent the entry and spread of communicable diseases from foreign countries into the United States and between states.
The authority for carrying out these functions on a daily basis has been delegated to the Centers for Disease Control and Prevention (CDC)
Per Section 42 Code of Federal Regulations parts 70 and 71, CDC is authorized to detain, medically examine, and release persons arriving into the United States and traveling between states that are suspected of carrying communicable diseases.
As part of its federal authority, CDC routinely monitors persons arriving at U.S. land border crossings and passengers and crew arriving at U.S. ports of entry for signs or symptoms of communicable diseases.
When alerted about an ill passenger or crew member by the pilot of a plane or captain of a ship, CDC may detain passengers and crew as necessary to investigate whether the cause of the illness on board is a communicable disease.
Gibbons v. Ogden, 22 U.S. 9 Wheat. 1 1 (1824)
Enacting quarantine laws is among the powers reserved to the states (and by extension, to local governments acting with authority granted by the states).
Printz v. United States, 521 U.S. 898 (1997)
The federal government lacks authority to “commandeer” state or local officials who would rather pursue their own priorities.
United States v. Comstock, 560 U.S. ___ (2010)
The federal government has “necessary and proper” authority to permit civil detention.
Addington v. Texas, 441 U.S. 418 (1979)
Proof by “clear and convincing evidence” is the proper standard for civil commitment.
Jacobson v Massachusetts (1905) 197 US 11, 24-27
• States have wide latitude in adopting whatever reasonable measures they deem necessary to prevent the spread of communicable diseases.
• Upholding compulsory vaccination against smallpox, provided the regulations are reasonable in protecting public health and safety. (Id. at 25)
• States have police power functions to protect the health, safety, and welfare of persons within their borders. To control the spread of disease within their borders, states have laws to enforce the use of isolation and quarantine.
• These laws can vary from state to state and can be specific or broad. In some states, local health authorities implement state law. In most states, breaking a quarantine order is a criminal misdemeanor.
• Tribes also have police power authority to take actions that promote the health, safety, and welfare of their own tribal members. Tribal health authorities may enforce their own isolation and quarantine laws within tribal lands, if such laws exist.
Shorter Answer: Yes
Putting aside Quarantine for a minute, Mediation is one of the best ways to resolve disputes. For an experienced Mediator to help negotiate a resolution to your dispute contact Ken Strongman (www.kpstrongman.com).
About the Author: Ken Strongman (www.kpstrongman.com) has years of experience and a growing national reputation as a mediator and arbitrator. He has successfully resolved more than a thousand disputes in the fields of construction defects, real estate, intellectual property, and employment. He is also a Mediator and Arbitrator for FINRA.
© 2020 Ken Strongman. All Rights Reserved. Please do not copy or repost without permission.