Ebola has captured the nation’s attention over the past few weeks. Media speculation and fear have seemed to perpetuate this disease, mostly afflicting West African countries, into a supposed serious threat to Americans. Federal and state governments’ responses provide a patchwork of different regulations, as federal, state and agency level actions have attempted to squelch fear, while also using science-driven policy to implement reasonable precautions. Though there is a large public policy concern, a detailed legal analysis of these preventative measures is necessary to insure American citizens’ rights are not compromised due to mass hysteria.
Ebola is a rare and deadly virus, which can cause death in humans and non-human primates. Currently, the scientific community knows of five strains, four of which cause death in humans. The virus was discovered in the Democratic Republic of the Congo in 1976, and outbreaks have appeared in Africa ever since. The death rate of these outbreaks has been between 36% and 100%. Currently, West Africa, particularly Sierra Leone, Liberia, and Guinea, hosts the largest-ever outbreak of the virus. The disease can spread in multiple different ways: “direct contact (through broken skin or mucous membranes) with a sick person’s blood or body fluids or objects that have been contaminated with infected body fluids.” Contrary to what many believe, the Ebola virus is relatively hard to catch, as transmission only occurs when one is very symptomatic. Symptoms usually begin two to twenty-one days after infection and include fever, severe headache, weakness, diarrhea, vomiting, and unexplained hemorrhaging.
The Center of Disease Control and Customs and Border Control have created guidelines states can follow to establish prevention measures. Currently, all people travelling from one of the three aforementioned countries are required to enter the nation through one of five airports, which, before the outbreak, accomodated 94% of people travelling from those countries. These airports implemented enhanced screening: identifying and interdicting travelers from Ebola-affected countries; isolating travelers from the rest of the public while the individual completes a questionnaire and contact information; and medically-trained assistance if symptoms present themselves.
These organizations authorize their activity under the Commerce Clause of the U.S. Constitution and the 1944 Public Health Service Act. The Commerce Clause allows the federal government to promulgate laws “regulat[ing] commerce with foreign nations, and among the several states.” If challenged, this type of regulation would most likely be proven to be under the purview of this clause, as it has been invoked to uphold a range of federal laws that regulate “activity substantial enough to constitute interstate commerce.” Given that airplanes carry products and people from one sovereign to another, any federal law regulating this type of travel would be found acceptable under this clause. Consequently, the 1944 Public Health Service Act used the Commerce Clause as authority to establish the government’s ability to quarantine individuals to prevent “introduction, transmission, and spread of communicable diseases from foreign countries to the United States.” Today, the CDC’s Division of Global Migration and Quarantine is empowered to enforce such quarantines according to a list of particularly dangerous diseases, including Ebola, contained in a relevant Executive Order.. Though there has been some discussion that NFIB v. Sebelius, the recent case challenging the Affordable Health Care Act, could preclude Congress’s authority to quarantine individuals, it would only apply to individuals not engaged in economic activity or interstate travel.
Some in the federal government, however, have advocated more intensive measures than those listed above. The head of the House Judiciary Committee, Rep. Bob Goodlatte (R-Va), stated that a “real solution” would be to deny entry to anyone from the three countries under a provision of the 1952 Immigration and Nationality Act. The Act allows foreigners seeking visas to be deemed inadmissible on health-related grounds. Civil physicians test these foreigners entering the country according to CDC and Customs protocol. A detailed health-screening protocol exists, but the act does not seem to bar admittance solely based on the country of origin.
Furthermore, the U.S. Constitution affords state government inspection powers. Gibbons v. Ogden, a landmark Supreme Court case, even specifically listed state powers to implement quarantine laws since they are classified as health laws. Furthermore, governors are allowed to declare a public health emergency. Consequently, New Jersey and New York’s implementation of a harsh policy seems reasonable, even though it requires quarantining anybody originating in one of the three West African countries if they came in contact with an infected person, even if the traveler does not exhibit any symptoms. This policy exceeds the recommendations by the applicable federal agencies. The head of the ACLU in New Jersey believes the quarantine without medical justification raises constitutional concerns involving state abuse of police power. The police powers are granted to the states through the Tenth Amendment, by which they can promulgate the health of the public. Given the large public policy concern centered on an Ebola outbreak, it may be an uphill battle to execute a successful Constitutional challenge.
Though many public policy concerns exist on both sides, it seems as if governments at all levels are working within its prescribed legal realm.