Wednesday, October 08, 2014

My Quarantine Column is on Verdict

by Michael Dorf

I usually write a blog post to accompany my Verdict columns, but my column today is on the constitutionality of quarantines (in response to Ebola), about which I have nothing to add. I'll let the column stand for itself. Meanwhile, I'll be back with another same-sex marriage post in a few hours.

6 comments:

Joe said...

Interesting issue.

I think especially in the midst of an outbreak, the concern about interstate commerce is stronger than in the U.S. v. Lopez (gun ban near schools) case for a variety of reasons. This would especially be the case if it involved certain areas (compare a gun ban near all NYC schools with a federal quarantine given the city's central place in interstate and international travel).

I would add that the issue arose during the PPACA oral arguments, Breyer raising it and at least one of the opponent lawyers pushing back.

Antonio M. Haynes said...

Mike, I had thought that even under the narrowest conception of the commerce power, Congress has the authority to control the "instrumentalities of interstate commerce" and that roads, railways, waterways, etc, were instrumentalities regardless of whether they were wholly intrastate? If that's right, wouldn't restrictions on movement of diseased persons in the instrumentalities of commerce fall squarely within Congress's power?

Michael C. Dorf said...

Antonio: I ultimately agree, which is why I conclude the federalism portion of the column by saying that. However, I think there is some tension between the recent federalism cases and the Court's willingness to treat movement across state and national boundaries as "commerce" despite the absence of a commercial or economic tie.

Alex said...

This is very interesting, thank you. Would you consider exploring the question of a private employer's right to quarantine (or blood test) suspected employees without facing potential civil rights accusations?

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