Do State Lines Make Public Health Emergencies Worse? Federal Versus State Control of Quarantine

• Jurisdiction: United States,Federal
• Publication year: 2018
• Citation: Vol. 67 No. 3

Do State Lines Make Public Health Emergencies Worse? Federal Versus State Control of Quarantine

Polly J. Price

Emory University School of Law

DO STATE LINES MAKE PUBLIC HEALTH EMERGENCIES WORSE? FEDERAL VERSUS STATE CONTROL OF QUARANTINE

Polly J. Price^*

Abstract

This Symposium Article explores the origins and limits of the federal government's interstate quarantine power. In the event of a public health emergency, state and local political boundaries may generate self-interested measures that risk substantial harm to neighboring states. To more effectively stem a national epidemic and to better protect the interests of regional populations, should the federal government step in to override a state's protective quarantine? Neither current statutory authority nor how we have thought about it in the past prevents a greater national role. This Article shows how to expand our view of the federal government's interstate quarantine authority as an important tool to respond to public health threats affecting more than one state.

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Introduction..............................................................................................493

I. Federal Quarantine Power in the Interior: "Interstate" and Interdependence.....................................................................496

A. Quarantine and Isolation as Public Health Tools..................... 496
B. State Quarantines Harming Neighbors: Two Hypotheticals..... 500

1. Scenario One: When Returning Travelers "Enter" Both the United States and a State ...........................................500
2. Scenario Two: Guarded Quarantine Lines at State Borders ............................................................................502

C. Why Courts Are an Insufficient Remedy: The Example of State Ebola Quarantines ............................................................ 504

II. Framing the Issue: What Is "Interstate" Quarantine Power?..............................................................................................510

A. The Traditional Understanding of Federal Versus State Quarantine Power ..................................................................... 514
B. Legislative Authority for Interstate Quarantine ........................ 516
C. 2017 Federal Quarantine Regulations, "Interstate and Foreign".................................................................................... 519
D. Objections to the Rule: Asking the Wrong Question? ............... 522

III. The Nineteenth-Century Origin of Federal Interstate Quarantine Power.........................................................................525

A. The First Interstate Quarantine Statute .................................... 526
B. Yellow Fever Quarantines: "A Stigma Upon Our Institutions and Civilization" ....................................................................... 529
C. Constitutional Debates and Administrative Hurdles................. 531
D. Congressional Debates in 1906: Rail Traffic Within States...... 537
E. Summary: What History Teaches About Interstate Quarantine ................................................................................ 538

Conclusion..................................................................................................539

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Introduction

The 2017 Thrower Symposium provided an early opportunity to discuss the federal Centers for Disease Control and Prevention's (CDC) new quarantine regulations.¹ In this Symposium issue, James Misrahi recounts the history of these regulations in his article The CDC's Communicable Disease Regulations: Striking the Balance Between Public Health & Individual Rights, and responds to criticisms by some scholars concerning civil rights protections.² Although this Article also addresses the new federal quarantine regulations, the aim is different. This Article considers the concept of interstate quarantine, an aspect of the federal government's authority that remains perplexing, and is seldom considered by scholars.³ This is the authority of the federal government to act within the United States, not its well-settled authority to quarantine travelers arriving at a U.S. point of entry.

Following Severe Acute Respiratory Syndrome (SARS) and Ebola, scholars have addressed questions surrounding the legal basis for quarantine, including ethical responsibilities and preparedness.⁴ Headlines from the recent

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Ebola crisis and the specter of pandemic disease arriving in the United States from elsewhere in the world inevitably have focused public attention on quarantine at U.S. borders, particularly the role of the CDC to interdict contagious disease before it can enter the territorial United States.⁵ But this focus on border control masks concern for epidemic outbreaks within the United States, at least with respect to the federal government's quarantine authority. Unlike the Ebola outbreak, in which the U.S. border was the primary focus, this Article concerns federal government authority when a contagious disease already present in the United States threatens to reach epidemic level. The United States is dangerously handicapped and unprepared to effectively control transmission from state to state, especially when individual states take actions that benefit it but harm their neighbors.

As this Article will explain, state and local governments lack sufficient incentives to cooperate effectively with each other to stem a public health emergency of potentially wide geographic scope. These separate public health authorities, in fact, may face the opposite incentive. State lines demarking political units present challenges in the face of a potential national epidemic. Much is made of the need for local preparedness, including resource planning, simulations, and drills, but little has been done on a regional or multi-state basis.⁶

Moreover, even if incentives not to cooperate with adjacent governments can be overcome, individual states lack the administrative and enforcement tools necessary to effectively contain the spread of disease from one state to another. This is one aspect of the problem of fragmentation of the public health system in the United States that I have identified elsewhere.⁷

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My purpose is to shift the debate about the federal government's quarantine authority from its focus on international borders to the interior, and to point out the dangers of protectionism when state and local governments attempt to exclude outside threats from local communities. Our longstanding view of a restricted federal interstate quarantine authority reflects an unnecessarily restrained view of what Congress has authorized. The CDC believes it is more constrained by underlying principles of federalism than it in fact is.

I view the new federal quarantine regulations as a missed opportunity to clarify the meaning of "interstate quarantine" both as a matter of jurisdiction and practical application, recognizing that to do so was almost certainly deemed politically inexpedient, and would have hampered the acceptability of these much-needed updates to federal quarantine rules. But such discussion is not foreclosed for the future. Congress has provided ample room for the exercise of interstate quarantine authority, sufficient even to nullify a state-ordered quarantine.

An expanded federal interstate quarantine authority could alleviate harmful and counterproductive parochial interests originating at state and local political levels. State public health departments have extensive legal authority to order quarantine, isolation, disclosure of personal information and contacts, and travel restrictions. But state lines can make a public health emergency worse, and at present there is little that can be done to prevent the modern-day equivalent of the "shotgun quarantine," a chaotic period in U.S. history that devastated lives and commerce in the late nineteenth and early twentieth centuries.⁸ It is instructive to remember this episode and the harm caused by a weak federal authority hamstrung to remedy the situation.

This Article proceeds as follows. Part I begins with brief illustrations to portray the need for clearer lines of quarantine authority, and greater federal authority, in the event of a public health emergency involving multiple states. An epidemic within the nation may require a national quarantine policy to counteract harmful or ineffectual state and local quarantine.

Part II examines the statutory basis for federal interstate quarantine, noting that the new federal quarantine rules neither expand nor contract that statutory authority. Statutory authority already exists for preemption of state quarantine laws, even if the political will to assert it has been lacking.

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Part III explains the historical background of federal interstate quarantine in the 1890 Epidemic Diseases Act, when Congress provided federal authority to act in the midst of yellow fever epidemics. Congress did so in response to requests from states that they be protected from harmful quarantines imposed by other state and local governments. But practical limitations prevented significant federal intervention. Congress has not re-evaluated the federal government's interstate quarantine authority since the last congressional debate on this subject in 1906.⁹

This Article concludes by drawing these elements together to argue that the federal quarantine statute's language is sufficiently broad to authorize significant federal intervention in matters of state and local quarantine, and that there is no constitutional impediment to do so. We should think hard about how best to use federal interstate quarantine capability to respond more effectively to public health threats. Such authority has not been needed on a large scale in more than a century, but scientists predict a widespread, devastating epidemic is all but certain in the future. We should plan for federal preemption of state and local...