Following the discovery of Ebola in the United States for the first time, the four persons most directly exposed to the infected person were quarantined without objection. However, another forty-four persons with less direct exposure were not quarantined, but rather are being monitored for the three week incubation period for the virus.
Should one of those forty-four persons come down with Ebola, a massive quarantine will surely follow. Using less than direct contact as the measure for whom to quarantine results in an exponential increase – think hundreds, if not thousands, of persons.
We have a demonstrated lack of places to house such persons as the four people quarantined in Texas are staying in a private home donated by a good samaritan. For safety’s sake, doesn’t every single person have to be quarantined separately? What if they aren’t? It does not seem they did so with the four people in Texas.
What right does the government have to quarantine you against your will? Historically (dating back to the 1800s), the legal authority to civilly confine someone for quarantine purposes was left up to the individual states and the federal government was only given the authority to “assist” if needed. As “assist” is not the same as “initiate,” the federal government was left without legal authority to quarantine.
As a result, a federal law was enacted that allows the federal government to civilly confine persons to prevent the spread of communicable diseases. Under the principles of federalism established by our Constitution, the federal government has limited authority to regulate such issues. The “commerce clause” of the Constitution allows the federal government to “regulate commerce with foreign nations, and among the several States, and with the Indian Tribes.”
What constitutes a regulation of “commerce … among the several States” has been a topic of countless legal opinions. Clearly, “commerce” is not the major factor at issue in a quarantine scenario. However, ushered in by “New Deal” legislation, the courts have interpreted this standard very liberally, allowing the federal government to regulate things with only a distant impact on interstate commerce. Although the Rehnquist era of the United States Supreme Court reigned in the extremely broad reach of the commerce clause, it is still likely that the Unites States Supreme Court would find that preventing the spread of such a dreaded disease affects interstate commerce sufficiently to invoke the commerce clause.
Given the federal government’s likely ability to quarantine persons against their will, the next layer of challenges will focus on the manner in which the quarantine is carried out. What if you dispute that even a tenuous connection to an infected person exists? For example, what if they confuse you with another person with the same name as yours? Can you be detained at gunpoint?
Let’s hope this scenario does not play out. If it does, the government’s authority to detain persons against their will, and the manner in which the government handles the quarantines, will face unprecedented legal challenges.
Written by The Lawrence Law Group Handling Injury, Insurance and Nursing Home Abuse Claims in Jacksonville, Florida