Robbins: The law of quarantine
Sadly, there is something in the air. What it appears to be is COVID-19, the coronavirus. While it is terribly real for those who have already suffered from it, one can only hope that comparisons to the 1918 Spanish Flu turn out to be more hysteria and hype than fact or forecast.
But what if it’s not?
What if the virus wields its scythe broadly and without discrimination? What if the genie fully escapes its bottle? What might or can our government do to help contain it?
Other than the Centers for Disease Control and Prevention, public health, private medical institutions, and their minions, there are laws that might aid the cause of our common welfare.
Let’s first define a couple terms: “isolation” and “quarantine.”
While slightly different in their definitions and application, both help to protect the public by preventing exposure to people who have or may have a contagious disease.
Isolation separates sick people with a quarantinable communicable disease from people who are not sick. Quarantine separates and restricts the movement of people who were exposed to a contagious disease to see if they become sick.
In addition to serving as medical functions, isolation and quarantine also are “police power” functions, derived from the right of the state to take action affecting individuals for the benefit of society.
The relevant federal law derives its authority for isolation and quarantine from the Commerce Clause of the U.S. Constitution. That clause (Article I, Section 8) authorizes Congress “to regulate Commerce with foreign Nations, and among the several States, and with Indian Tribes.”
While seemingly a bit obtuse in its relation to a potential pandemic, the Commerce Clause has traditionally been interpreted as both a grant of positive authority to Congress and as an implied prohibition of state laws and regulations that interfere with or discriminate against interstate commerce (the so-called “dormant” commerce clause). In its positive interpretation, the clause serves as the legal foundation of much of the U.S. government’s regulatory power.
In short, since a pandemic would — and likely could — interfere with commerce between the states and with other nations, Congress may pass such acts and take such action as may reasonably strive to preserve it.
Under Section 361 of the Public Health Service Act (42 U.S. Code § 264), the U.S. Secretary of Health and Human Services 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 CDC.
Under Title 42 of Code of Federal Regulations parts 70 and 71, the CDC is authorized to detain, medically examine, and release persons arriving into the United States and traveling between states who are suspected of carrying these communicable diseases.
As part of its federal authority, the 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, the CDC may detain passengers and crew as necessary to investigate whether the cause of the illness on board is a communicable disease.
With antenna up in light of COVID-19 and the hopefully temporary swoon the markets have already experienced, presumably, this vigilance and the CDC’s efforts will ramp up quickly.
States also have and exercise police powers to protect the health, safety, and welfare of those within their borders. To control the spread of disease, states have independent laws to enforce the use of isolation and quarantine. These laws can vary from one state to the next. In most states, breaking a quarantine order is a criminal offense.
While it is possible for federal, state, and local authorities to have their respective police powers all at the same time, in the event of a conflict, federal law is supreme.
If the tsunami of COVID-19 does escalate, the CDC may issue a federal isolation or quarantine order. In addition, public health authorities at the federal, state, and local levels may seek help from police or other law enforcement officers to enforce a public health order. U.S. Customs and Border Protection and U.S. Coast Guard officers as well are authorized to help enforce federal quarantine orders.
Federal quarantine orders are only rarely used. Large-scale isolation and quarantine was last enforced during the Spanish Flu pandemic in 1918-1919.
One other thing is perhaps worth a quick mention.
In the war against this potential pandemic, the feds might just deploy actual war powers. Before you jump out of your seat, though, the Trump administration recently suggested that it might employ a Korean War-era law to speed up the manufacturing of medical supplies to help stem the virus’ advance.
Rather than declaring war, think if you will as more of a Rosie the Riveter sort of thing; the Feds may very well employ the federal muscle to declare a war on COVID-19 itself in order to stimulate war-like production to defeat what may become a threat to national health and security.
One can only hope this Grim Reaper peters out quickly and all the recent hype and worry turn out to be little more than a viral tempest in a less-than-fecund teapot. Only time itself will tell.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices Of Counsel in the Vail Valley with the Law Firm of Caplan & Earnest, LLC. His practice areas include: business and commercial transactions; real estate and development; family law, custody, and divorce; and civil litigation. Mr. Robbins may be reached at 970-926-4461 or at his e-mail address: Rrobbins@CELaw.com. His novels, “How to Raise a Shark (an apocryphal tale)” and “The Stone Minder’s Daughter,” are currently available at Amazon.com.