Biodefense and Constitutional Constraints

National Security and Armed Conflict Law Review, Vol. 4, pp. 82-206, 2014

Georgetown Public Law Research Paper No. 11-96

80 Pages Posted: 10 Jul 2011 Last revised: 24 Jul 2014

Laura Donohue

Georgetown University Law Center

Date Written: July 9, 2011

Abstract

The United States and United Kingdom have different approaches to quarantine law that reflect each country’s unique historical context and constitutional structure. Under the Tudors, England vested quarantine authority in the monarch, with its subsequent exercise conducted by the military. As the constitutional structure changed, the manner in which quarantine was given effect subtly shifted, leading to constitutional reforms. Authorities transferred first to the Privy Council and, subsequently, to Parliament, where commercial interests successfully lobbied them out of existence. By the end of the 19th Century, quarantine authorities had been pushed down to the local port authorities. In the United States, in contrast, the opposite trajectory took place: what began as an local port authority gradually evolved into state measures, which continued to emphasize the intensely local nature of the rules governing cordon sanitaire and maritime quarantine. Direct federal attack via the Commerce Clause, however, was avoided via the Spending Clause. Current arguments place the U.S. response to both pandemic disease and biological weapons within an Article II realm, giving rise to significant concerns about shifting constitutional norms.

Keywords: Biological Weapons, Constitution, Pandemic, National Security, Federalism, Individual Rights, Comparative Law, Public Health, Administrative Law, Disease, Quarantine, Isolation, United States, United Kingdom

JEL Classification: K00, I18

Suggested Citation

Donohue, Laura, Biodefense and Constitutional Constraints (July 9, 2011). National Security and Armed Conflict Law Review, Vol. 4, pp. 82-206, 2014; Georgetown Public Law Research Paper No. 11-96. Available at SSRN: https://ssrn.com/abstract=1882506

Laura Donohue (Contact Author)

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States
202 662-9282 (Phone)
202 662-9282 (Fax)

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