Will Obama Use Ebola Epidemic To Declare A Disaster To Avoid Major Defeat At The Polls?

Quarantines among legal tools available if Ebola outbreak widens

Posted on October 16, 2014 by McClatchy-Tribune

WASHINGTON (MCT) — As the web of infection widens, questions about the U.S. government’s legal authority to contain the Ebola virus are increasing, even as federal officials attempt to keep public panic at bay by diverting the focus from the hypothetical.

Beyond the traveler screening mandates and medical support already underway, federal officials could take several dramatic steps to protect the United States if the virus reaches epidemic levels. That includes quarantines, a ban on travel to or from foreign countries and the declaration of a public health emergency that would allow the Health and Human Services Department to waive certain federal requirements and tap into a reserve account to fund response.

The federal government’s powers are ultimately secondary to those of the states, which hold the police power function that gives them the legal authority to isolate infected individuals or force them to accept treatment — similar to criminal arrest or civil commitment. In Texas, health officials in Dallas have quarantined the family of the only Ebola victim, Thomas Duncan, in a house until they are sure they didn’t pick up the disease, according to local news reports. His fiancee, her son and two men had to miss a memorial service after Duncan died.

If a state or local jurisdiction response doesn’t prevent the spread of a disease to another state, HHS can step in under the Public Health Services Act (PL 78-410). But that would mostly be to provide resources and expertise — not to take over, said Gene Matthews, chief legal adviser to the Centers for Disease Control and Prevention from 1979 to 2004.

“It’s not like a military situation, because your troops on this are primarily your state and local health officials, so it has to be collaborative,” said Matthews.

State health officials have the power to quarantine those who are only suspected of infection, and can take major actions such as evacuations or cancelations of sporting events. Governors can call up National Guard units to enforce actions or aid in anything from transportation to security.

A senior National Guard official said this week that he has heard of no direct plans or orders for the Guard’s role in any domestic response to Ebola. The Guard’s medical resources, as well as its experience dealing with biohazards, could also aid in any response, the official said.

Meanwhile, a spokesman for the National Guard Bureau said the force has personnel and resources available to help combat Ebola, both internationally and within the United States. Indeed, the Guard is supporting the current U.S. military mission in West Africa.

“We stand ready to support the needs identified by U.S. government lead agencies,” the spokesman said, adding that the Guard is “actively involved” in the planning process at both the state and federal levels.

The National Guard’s highly trained Weapons of Mass Destruction Civil Support Teams could be a particularly critical capability in the event of any stateside Ebola outbreak. The Guard has at least one of these teams in each state, territory and Washington, D.C.

The state-controlled units, which are made up of 22 full-time personnel, are trained for a range of missions, including providing immediate response to the release of hazardous materials or other disasters that could result in a catastrophic loss of life and property.

The scope of states’ power in health matters comes mainly from a 1905 Supreme Court ruling in which a Massachusetts man challenged whether a city could require residents to be vaccinated against smallpox.

The justices found in Jacobson v. Massachusetts that the collective right of self-defense prevails over individual rights, as long as due process is ensured, such as the right to challenge the government action.

“Upon principle of self defense, of paramount necessity, a community has a right to protect itself against an epidemic disease,” the Supreme Court ruled.

Much has changed since then. Dozens of states modernized their health codes in the aftermath of the Sept. 11, 2001, terrorist attacks, Matthews said. Most states now have a game plan for how to deal with a health crisis, and have conducted training exercises for years.

“I’m not laying awake at night thinking about whether some state official has the legal authority, but whether they have the resources,” Matthews said. “It’s now about the money.”

Federal officials have those resources, and an HHS-declared public health emergency could start the flow of money to local health officials.

Although HHS will remain the lead in coordinating response in nearly every scenario, the administration could call on the Homeland Security Department and its Federal Emergency Management Agency to help wrangle resources, provide shelter and assist with transportation if the disease begins to spread.

A presidential disaster declaration, which would open up so-called Stafford Act (PL 100-707) funding through FEMA, is unlikely considering HHS already has the authority to declare a public health emergency and Congress would likely appropriate emergency funding if there is a need.

“That’s a ‘break glass’ and in extremis type of case,” says Marko Bourne, who served as director of policy and program analysis at FEMA during the George W. Bush administration. “There would truly have to be something that is incredibly widespread across the country that was over and above the additional resources and ability provided under the health declaration. Stafford at that point is almost redundant.”

The federal government can clamp down on travel to and from the United States for public health reasons. That includes stopping American citizens from visiting certain countries, as well as barring foreigners from entering the United States, according to a Congressional Research Service report on Ebola issues.

The secretary of state can prevent Americans from boarding flights to specific countries under the authority to grant and issue passports. The Supreme Court recognized that power in a 1965 decision, Zemel v. Rusk, upholding travel restrictions to Cuba after the United States cut diplomatic ties with the nation in 1961.

The government can’t criminally charge those who do not comply with the travel ban, however. A second Supreme Court decision in 1967, United States v. Laub, threw out a conspiracy indictment against people who arranged travel to Cuba for dozens of American citizens.

–Todd Ruger and Jennifer Scholtes
CQ News

___