MUST READ: Your Constitutional Rights During an Ebola (or other) Outbreak

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With rising concern nationally about Ebola haemorrhagic fever, the possibility of some very limited quarantines looms as efforts are underway to contain the disease. But what are your rights under such conditions?

In short, state governments, and not the federal government, have most of the power to place people in isolation or quarantine under certain circumstances. Isolation separates people who are known to be ill from those who aren’t sick. Quarantine separates people suspected of being exposed to an illness or biological agent from the general population.
Your individual rights are very limited in these circumstances, unless you can prove the government action is arbitrary.

The topic of Ebola and the Constitution is starting to get some play in legal publications; however, the precedents over the government’s power to isolate citizens go back almost 200 years.

Link: List of Federal and State quarantine laws

The Constitution doesn’t directly list the power to isolate or quarantine people as a power given to the federal government, so the power to take these severe measures is reserved to the states under the 10th Amendment.

In 1824, Supreme Court Chief Justice John Marshall’s opinion in Gibbons v. Ogden drew a clear line between the federal government and the state governments when it came to regulating activities within and between states.

Marshall’s reasoning set the precedent that police powers are reserved to states for activities within their borders (with some exceptions). Those police powers include the ability to impose isolation and quarantine conditions. He said that inspection laws “form a portion of that immense mass of legislation which embraces everything within the territory of a State not surrendered to the General Government,” and quarantine laws were part of that “mass.”

Marshall’s decision also helped to define the Commerce Clause, and it is under the Commerce Clause that the federal government can impose isolation and quarantine conditions on people who travel between states, and on people entering and leaving the United States.

Under section 361 of the Public Health Service Act, the U.S. Secretary of Health and Human Services has the power to take measures to contain communicable diseases from foreign countries into the United States and between states. The Centers for Disease Control and Prevention (or CDC) acts on behalf of the Secretary in these matters.

But also under the Constitution, individuals have rights even in quarantine and isolation conditions. Under the rights of Due Process, public health regulations used to impose such conditions cant’ be “arbitrary, oppressive and unreasonable.”

There are precedents where courts have ruled that states or local governments didn’t meet a burden of proof. For example, in 1900 courts ruled against the city of San Francisco when it tried to inoculate and then quarantine Chinese residents against the bubonic plague, when the courts had doubts that plague conditions existed.

And there also precedents that authorities should provide confined people with an explanation about why they are confined and notify them they have a right to counsel and other constitutional provisions.

Cornell Law professor Michael Dorf has argued that some type of judicial oversight is needed in quarantine cases. Dorf cites a 1979 Supreme Court decision that proof by “clear and convincing evidence” was needed for civil confinement.

“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,” Dorf argues.

“Accordingly, judicial review of government officials’ claims that a quarantine is necessary to protect public health should not be a mere rubber stamp.”

The federal government also has a seldom-used right to impose large-scale quarantines. The federal government last issued isolation and quarantine orders during the Spanish Flu pandemic in 1918 and 1919.

Federal public health and welfare statutes also give the federal government authority to isolate and quarantine persons with certain diseases, based on an executive order issued by President George W. Bush in 2003.

Executive Order 13295 lists Ebola as one of several diseases that if suspected, provide for “the apprehension, detention, or conditional release of individuals to prevent the introduction, transmission, or spread of suspected communicable diseases.” Breaking a federal quarantine order is punishable by a fine and imprisonment.

So far, the states have handled the quarantine and isolation incidents in the few Ebola cases reported in the United States.

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