Monday, October 27, 2014

Quarantine Follow-Up: Yes I Said That But . . .

By Michael Dorf

A Wall Street Journal article today accurately quotes me but in a way that may inadvertently give the misimpression that I support aggressive quarantining of Ebola-exposed asymptomatic persons on policy grounds. Because I am not a medical or public health expert, I do not have a position on the best policy response to the Ebola risk. I write here to clarify my position on the constitutional issues I was addressing.

In my Verdict column on quarantines a few weeks ago, I explained that states clearly have the affirmative power to quarantine and that while some recent SCOTUS cases might be read to cast doubt on a federal quarantine power, the potential for movement across state (and national) borders places federal quarantine power squarely within the power to regulate interstate (and foreign) commerce. The WSJ article includes a quotation of mine to that effect. It states:
The state laws used to implement mandatory quarantines in New York, New Jersey and Illinois are clear and “there is no serious doubt about the affirmative power of either the states and the federal government to quarantine,” Mr. Dorf said.
Understood in proper context, this was simply a restatement of the position in my Verdict column: That states and the federal government have the affirmative power to quarantine, even though there might be valid individual rights challenges. A lay reader, however, might not realize the work that the word "affirmative" is doing there.

The story then goes on:
States can “go farther if they want to as long as it’s not completely divorced from reality,” said Mr. Dorf. For people that fail to follow a quarantine order, said Mr. Dorf, there are criminal sanctions similar to violating a court order, for example.
That statement may be mysterious even to a constitutional law guru, so it requires some more clarification. The reporter asked me whether the quarantine could be deemed discriminatory. I explained that constitutional law only forbids discrimination on illicit grounds (like race) or discrimination that is completely irrational. As I recall, the "not completely divorced from reality" line was a description of the rational basis test.

But even so, mightn't heightened scrutiny apply to a quarantine on the ground that it infringes the fundamental right to liberty from physical restraint? Yes, for sure it could, as I noted in the Verdict column, but even when courts apply heightened scrutiny based on fundamental rights, they typically give broad deference to the medical judgment of government authorities. The reporter also asked me whether the Christie/Cuomo quarantine was unconstitutional on the ground that it was more stringent than the CDC/Doctors-Without-Borders guidelines. I said that the additional breadth could make the Christie/Cuomo quarantine questionable on policy grounds but not necessarily unconstitutional.

Finally, I'm pretty sure I did not say that there are criminal sanctions available for violating a quarantine. There might be but I haven't looked at the relevant statutes. What I said was that if a quarantine is valid, then the state may use all of its regular remedial tools to enforce it, including imprisonment, as with the violation of a court order.