Faculty Commentary

Why the C.D.C.’s Power to Quarantine Should Worry Us


The Centers for Disease Control and Prevention issued new regulations this month that give it broad authority to quarantine Americans. The rules outline for the first time how the federal government can restrict interstate travel during a health crisis, and they establish in­house oversight of whether someone should be detained, without providing a clear and direct path to challenge a quarantine order in federal court.

State and local authorities had previously been the ones to usually deal with issues like this during epidemics. Now the administration of Donald J. Trump has even more authority to detain people than the Obama administration had during the Ebola crisis. It’s imperative that whenever the next outbreak hits, emergency health measures are grounded in scientific evidence and guided by clear, fair rules to protect people from wrongful deprivation of their liberties.

Consider what happened to Kaci Hickox three years ago, when she landed at Newark Liberty International Airport after volunteering as a nurse for Ebola patients in Sierra Leone. Upon her arrival, federal health officers flagged her for an additional health screening. Ms. Hickox had no symptoms and had always worn heavy protective gear as she worked, so she had no known exposure to Ebola. So she should have been allowed to monitor herself at home, according to the guidelines that the C.D.C. had in place at the time. That’s what happened to dozens of other volunteers. Instead, Gov. Chris Christie ordered her quarantined in a tent at a Newark hospital. She eventually won her freedom, but only after being held for three days.

That incident wasn’t an anomaly. During a bubonic plague outbreak in 1900, for example, government officials quarantined the entire Chinatown neighborhood of San Francisco. The quarantine applied only to Chinese residents, and lacked any scientific basis. It was fueled by little more than naked fear and racism. Given this history, we want to ensure that federal officials applying the new regulations will act on the basis of science and evidence and not on politics and public fear.

Until now, most quarantines have been imposed by states and local governments, which have primary responsibility for protecting the health of their populations. In recent years, some state legislatures have added much­ needed protections to their quarantine laws (with notable exceptions like New Jersey and Connecticut, which both face litigation over their conduct during the Ebola crisis).

Prompt judicial review has always been important during epidemic scares. People can usually challenge a state’s order of quarantine immediately. Indeed, in several states, the government has to get a judge’s approval before quarantining someone. Unfortunately, the new rules give the C.D.C. significant in­-house oversight of the decision to quarantine, with up to three layers of internal agency review. This internal review has no explicit time limit and could easily stretch on for weeks while a healthy person languishes in quarantine. And since federal courts often wait until an agency has completed its internal process before it will consider hearing an appeal, we won’t know until the next crisis hits whether a federal judge will agree to hear a petition from someone detained before the C.D.C. review is completed.

In addition, the C.D.C. now has clear legal authority to take over the quarantine role from states in many cases, and to restrict interstate travel. This raises questions not just of federalism but also of practicality. Local health departments have staff, relationships and the experience to set up and manage quarantine facilities. C.D.C., whose main job is to provide expertise, does not. Nor does it have the infrastructure for or experience in managing travel disputes and adjudicating quarantine appeals. And in many cases, states and local governments may be better equipped to handle the situation and have no need for the federal government to take over.

During the 2014 Ebola outbreak, Mr. Trump tweeted, contrary to the judgment of Ebola experts, that West Africans and American health care workers returning from “Ebola­ infected countries” should be barred from entering the United States. During his campaign, he said that Mexican immigrants bring “tremendous infectious disease” across the border, which is a lie. Given this history, we cannot dismiss the possibility that his administration would respond to an epidemic (real or feared) in a way that is sensational, discriminatory or ignorant of science.

Congress must make sure that the nation’s top health agency has what it needs to do its job effectively and constitutionally: respected leaders and appropriate funding. In the confirmation hearings ahead, the Senate should insist that the nominees to lead the Department of Health and Human Services, the Public Health Service and the C.D.C. have the experience, scientific knowledge and integrity to respond to frightening health threats appropriately. And Congress should ensure that the C.D.C. has the funding and mandate to fulfill the broader role it seeks. It should amend the federal quarantine law to ensure the availability of immediate judicial review of all C.D.C. quarantines. With good leadership and good law, we can protect public health without compromising basic rights.

Kyle Edwards is a student at Yale Law School. Wendy Parmet is the director of the Program for Health Policy and Law at Northeastern University. Scott Burris is the director of the Public Health Law Research Program at Temple University.

This article originally appeared as an op-ed in the New York Times on January 23, 2017. To read the original article, please click here.

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