The spread of COVID-19 will almost certainly have negative impacts on the United States and world economy. It will likely also test the bounds of state and federal quarantine and inspection laws, and the government’s authority to respond to public health disasters. What do we know about the government’s authority to respond to epidemics and threats to public health? How does that authority coincide with due process? And under what circumstances can the government force an individual to be isolated or screened for a communicable disease?
Authority to Act
The government’s jurisdiction over individual human bodies is hotly contested. One area, where Congress and courts appear to draw a clearer line for the government’s jurisdiction and authority to act is when communicable diseases pose a threat to public health.
Most authority to act or response to public health threats lines with the states, as a part of their police powers. Public health and quarantine laws vary from state to state, however, the Supreme Court of the United States made clear over 100 years ago, that “the power of the states to enact and enforce quarantine laws for the safety and the protection of the health of their inhabitants . . . is beyond question.”
In addition to the States’ authority, Congress gave federal authorities the right to take action to prevent the spread of communicable diseases. Congress gave the Surgeon General the authority to promulgate regulation providing for the “apprehension and examination of any individual reasonably believed to be infected with a communicable disease.” Such regulations define “communicable diseases” as “illnesses due to infectious agents or their toxic products, which may be transmitted from a reservoir to a susceptible host either directly as from an infected person or animal or indirectly through the agency of an intermediate plant or animal host, vector, or the inanimate environment.”
The Centers for Disease Control and Prevention (“CDC”) can act to protect the entry of communicable disease into the United States through ports of entry, or prevent the spread of communicable disease from state to state. The CDC has limited authority to act to prevent the intrastate spread of communicable disease.
“Quarantinable Communicable Disease”
Once a disease is designated as a “quarantinable communicable disease,” regulations give CDC sweeping authority to act, and quarantine potentially infected individuals to prevent the spread of the disease from state to state. The Code of Federal Regulation provides that:
The Director [of the CDC] may authorize the apprehension, medical examination, quarantine, isolation, or conditional release of any individual for the purpose of preventing the introduction, transmission, and spread of quarantinable communicable disease, as specified by Executive Order, based upon a finding that:
- The individual is reasonably believed to be infected with a quarantinable communicable disease in a qualifying stage and is moving or about to move from a State into another State; or
- The individual is reasonably believed to be infected with a quarantinable communicable disease in a qualifying stage and constitutes a probable source of infection to other individuals who may be moving from a State into another State.
While authority to act and quarantine individuals engaged solely in intrastate activity remains with the States, regulations provide that the Director of the CDC may step in and take action within a state “whenever the Director makes a determination . . . that based on the existence of inadequate local control such measures are needed to prevent the spread of any of the communicable diseases from such State or U.S. territory to any other State or U.S. territory.” Additionally, the CDC may assist a State or local health authority if that State or local health authority requests such assistance.
While State protocol to act during a public health crisis vary from state to state, courts have made clear that government officials have the right to isolate and quarantine individuals so long as it is done to protect public health, and there is probable cause to believe the person posing a threat to public health. See Hickox v. Christie, 205 F.Supp.3d 579 (D.N.J. 2016).
Compulsory Screening COVID-19
Can the government force an individual to be screened for a quarantinable communicable disease, like COVID-19? The answer appears to be yes. Fourth Amendment issues may arise from such “searches,” however, in the case of a public health emergency it is likely the government can easily meet their burden and show that there were reasonable grounds to screen such individuals under certain circumstances. Additionally, the Code of Federal Regulations clearly states that the CDC has the authority to authorize “medical examination” of “any individual” that it “reasonably believed to be infected with a quarantinable communicable disease.”
The CDC now lists COVID-19 as a “quarantinable communicable disease.” How exactly state and federal governments will exercise their authority, and what legal battles they will face in the aftermath, is yet to be determined. While one may be a champion for bodily autonomy and opposed to government regulation of human, in the case of communicable diseases, there can be little protest to the need for swift government action. Regulations like these, and others, exists so that when there is an outbreak of an infectious disease, Americans can rest better knowing that this very scenario has been thought out, and the government has the authority to act.
Jasmine B. Washington