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Wednesday, October 15, 2014

Ebola, Epidemics, and Federalism

The Ebola epidemic has made emergency public health measures a subject of global importance. Within the US, attention has focused on federal efforts to monitor potentially contagious persons entering the country, and on both state and federal efforts to curb the spread of infection. (Paul Rosenzweig’s post over at Lawfare is a good example.) Clearly, the end of this humanitarian crisis will turn on medicine and public policy. But there is also a set of constitutional doctrines relevant here. In recent years, public health problems have played a significant role in thought experiments regarding the scope of state and federal power. Some of these scenarios don’t seem quite so hypothetical anymore.

1. State Quarantines: The “Dormant” or Impliedly Preemptive Commerce Clause and Interstate Travel

What if State A wants to shut out persons or goods from State B on the ground that they might be contaminated with a public health hazard? This seems like regulation of interstate commerce, which Article I of the Constitution places within the control of Congress. Clearly, then, Congress could pass legislation on this point. It’s possible, however, that Congress hasn’t enacted or never enacts relevant legislation. Under the “dormant” Commerce Clause doctrine, state law on matters of interstate commerce can be impliedly preempted even if there is no relevant federal legislation.

In Chemical Waste Management v. Hunt (1992), the Court discussed its line of “quarantine cases," block quoting the following nineteenth century statement:

In the exercise of its police powers, a State may exclude from its territory, or prohibit the sale therein of any articles which, in its judgment, fairly exercised, are prejudicial to the health or which would endanger the lives or property of its people. But if the State, under the guise of exerting its police powers, should make such exclusion or prohibition applicable solely to articles, of that kind, that may be produced or manufactured in other States, the courts would find no difficulty in holding such legislation to be in conflict with the Constitution of the United States.

In other words, bona fide quarantines are permissible, even though states can’t normally discriminate against goods from other states. An analogous distinction might apply in connection with persons and the constitutional right to interstate travel discussed in Saenz v. Roe (1999).

2. Federal Quarantines: The Necessary and Proper Clause and Commerce Clause

Does the federal government have the power to establish quarantines? This issue came up during the oral argument in the 2010 case United States v. Comstock. The question presented was whether the federal government had authority to civilly commit certain offenders after they had completed their federal prison sentences. The government argued that this power existed in light of the public danger that the offenders posed. The relevant constitutional authority stemmed from the Necessary and Proper Clause, in conjunction with whatever separate authority authorized the federal prison sentence in the first place. During the oral argument, then-Solicitor General Elena Kagan analogized the federal law to a quarantine. Here is the key exchange:

GENERAL KAGAN: ... I will give you an example, Justice Scalia. I mean, suppose that there was some very contagious form of drug-resistant tuberculosis that had -- had become prevalent in the prison system, and States were not able to deal with that, with quarantining these people upon their release date. And Congress said: You know, the best thing to do is to have the Federal Government act as the appropriate quarantining authority because we don't think that States are able to step up and deal with this problem. Would anybody say that the Federal Government would not have Article I power to effect that kind of public safety measure? And the exact same thing is true here. This is exactly what Congress is doing here, is to make sure that mentally ill, sexually dangerous --

JUSTICE KENNEDY: When I was thinking about your hypothetical I thought, well, that's a pretty easy commerce power argument. I — I notice that in — in the government’s position you don’t argue the Commerce Clause very much, and I — we have got at Morrison v. Bronkalla looking at you and Printz, and so forth. … But suppose Congress said: There is a class of committable, dangerous sex offenders that are crossing State lines and using interstate facilities, and made those findings. Would that be sufficient to establish a Federal commitment law?

In this exchange, Justice Kennedy seems to view the quarantine hypothetical as too easy for the government and as possibly beside the point, given that the government wasn’t relying directly or exclusively on the Commerce Clause. However, it's not entirely clear whether Justice Kennedy was talking about a quarantine within a state (which might have to rely on a combination of the Commerce Clause and the Necessary and Proper Clause) or simply a quarantine at a state border (which would be a relatively straightforward regulation of interstate commerce). Justice Kagan's hypothetical seemed designed to capture both scenarios.

Comstock ultimately upheld the federal commitment law by a 7-2 vote, with several members of the majority writing separately. Per Justice Breyer, the majority based its decision on a multi-factor analysis. Factor #3 raised the quarantine point:

If a federal prisoner is infected with a communicable disease that threatens others, surely it would be "necessary and proper" for the Federal Government to take action, pursuant to its role as federal custodian, to refuse (at least until the threat diminishes) to release that individual among the general public, where he might infect others (even if not threatening an interstate epidemic, cf. Art. I, § 8, cl. 3). And if confinement of such an individual is a "necessary and proper" thing to do, then how could it not be similarly "necessary and proper" to confine an individual whose mental illness threatens others to the same degree?

This passage appears to approve of federal efforts under the Necessary and Proper Clause to contain epidemics "even" without a threatened "interstate epidemic." For that reason, the passage suggests that the federal government has a great deal of flexibility in establishing quarantine measures, even apart from emergencies and far from state and federal borders. Still, this point is arguably dicta and arose in the context of the release of federal prisoners. So the passage doesn’t necessarily approve of all possible federal health measures.

3. Federal Inoculation Programs: The Necessary and Proper Clause, Commerce Clause, and Anti-Commandeering

Can the federal government go beyond quarantine measures, such as by requiring people to be inoculated against a plague? This “inoculation mandate” hypothetical prominently arose in connection with NFIB v. Sebelius, the 2012 challenge to the Affordable Care Act. The relevant question presented was whether the federal government had authority under the Commerce Clause and Necessary and Proper Clause to require private persons to purchase health insurance or pay a penalty. (The Court would ultimately sustain the law by construing the penalty as a tax for constitutional purposes.)

At oral argument, Justice Breyer tried to test the limits of the challengers’ theory—and, more to the point, the limits that the challengers would impose on the federal government. The resulting exchange prominently involved the 2000 case United States v. Morrison, where the Court narrowly struck down part of the Violence Against Women Act for exceeding federal legislative power.

JUSTICE BREYER: I'm just picking on something. I'd like to just -- if it turned out there was some terrible epidemic sweeping the United States, and we couldn't say that more than 40 or 50 percent -- I can make the number as high as I want -- but the -- the -- you'd say the Federal Government doesn't have the power to get people inoculated, to require them to be inoculated, because that's just statistical.

CARVIN: Well, in all candor, I think Morrison must have decided that issue, right? Because people who commit violence against --

JUSTICE BREYER: Is your answer to that yes or no?

CARVIN: Oh, I'm sorry; my answer is no, they couldn't do it, because Morrison --

JUSTICE BREYER: No, they could not do it.


JUSTICE BREYER: They cannot require people even if this disease is sweeping the country to be inoculated. The Federal Government has no power, and if there's -- okay, fine. Go ahead.

CARVIN: May --

JUSTICE BREYER: Please turn to Justice Kagan.

CARVIN: May I just please explain why?


CARVIN: Violence against women obviously creates the same negative impression on fellow citizens as this communicable disease, but the -- and it has huge effects on the health care of our country. Congress found that it increased health care costs by -

JUSTICE BREYER: I agree with you that --

CARVIN: Well, but --

JUSTICE BREYER: -- that it had huge negative effects but the majority thought that was a local matter.

JUSTICE SCALIA: I think that's his point.

This exchange suggests that, in the view of some or even most Justices, mandatory inoculation is near the outer limit of what the federal government can do to combat epidemics.

This wasn't the first time that Justice Scalia seemed unconcerned with an inoculation hypothetical: in Printz v. United States, which held that Congress lacks authority to command state officers, Justice Stevens's dissent argued that the majority's anti-commandeering rule might thwart "the mass inoculation of children to forestall an epidemic." The Printz majority was unmoved. Perhaps the Court believed that federalism entrusted such situations to state officers operating under state law. Or perhaps the Court envisioned the immediate expansion of federal health agencies in times of need.

In NFIB, however, some Justices seemed to take a different view of mandatory federal inoculation. In particular, Justice Alito suggested that there might be a distinction between Justice Breyer's inoculation hypothetical and the Affordable Care Act's insurance mandate:

JUSTICE ALITO: Mr. Carvin, isn't there this a difference between Justice Breyer's hypothetical and the law that we have before us here? In his hypothetical, the harm to other people from the communicable disease is the result of the disease. It is not the result of something that the government has done, whereas here the reason why there's cost-shifting is because the government has mandated that. It has required hospitals to provide emergency treatment; and, instead of paying for that through a tax which would be borne by everybody, it has required -- it has set up a system in which the cost is surreptitiously shifted to people who have health insurance and who pay their bills when they go to the hospital.

Justice Alito's distinction is a fairly subtle one, and it doesn't directly rest on the potential need for federal public health measures. Still, Justice Alito's remarks suggest that a majority of the current Court would sustain federal inoculation mandates, despite the fact that most justices in NFIB disapproved of the arguably analogous healthcare insurance mandate.

Of course, we shouldn't read too much into statements during oral argument, particularly because even committed skeptics of federal authority might view the issue differently during an actual emergency. But, as the exchange in NFIB suggests, it may be worthwhile to think through some of these questions before the emergency arrives.

The above is cross-posted from Re's Judicata.

Posted by Richard M. Re on October 15, 2014 at 02:57 PM in Constitutional thoughts | Permalink


I don't quite understand the first comment. There are things that can be done now. But, this is a legal blog, and it is a place to discuss.

Anyway, as to state quarantine laws, regardless of their power to do so, my ultimate concern would be if that holds even with overriding federal action that might override it on Commerce Clause grounds.

The reference to Morrison seems to be a bit weak. It seems to me much stronger to argue that -- at least in Breyer's hypo -- that there is a substantial effect of interstate commerce as compared to domestic violence. Protecting the channels of commerce, e.g., with that many contagious people.

Posted by: Joe | Oct 17, 2014 9:33:59 AM

Interesting when faced with what could be a unprecedented disaster, you need to discuss it at length, pass laws and then act. This may be the equivalent of shutting the barn door after the horse has bolted

Posted by: Patrick | Oct 17, 2014 4:22:27 AM

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