Epidemics, Outsiders, and Local Protection: Federalism Theater in the Era of the Shotgun Quarantine

Abstract

The recent Ebola threat from western Africa raised unanswered questions about the scope of the U.S. federal government’s quarantine authority. For decades, a widespread assumption has existed that states have absolute control over quarantines imposed within their boundaries. This article suggests that the presumption of limited federal authority is overly restrictive and not constitutionally mandated. The history of the “shotgun quarantines” imposed during the yellow fever epidemics of the late 19th and early 20th centuries offers an alternative constitutional interpretation. This fascinating but previously untold account reveals that leading politicians of the day believed the federal government had a broad constitutional authority. The human suffering and disruption to commerce caused by the local shotgun quarantine led the South to implore Congress for legislation to remedy it – the only significant instance in which the post-Civil War South united in favor of ceding state’s rights to the federal government. The controversy faded as effective measures against yellow fever were found, only to emerge again when Ebola confronted public health policy makers a century later. Because Congress never acted, we have largely forgotten the history of these legal debates over interstate quarantine authority. In recovering that history, this Article offers a new perspective on how to manage public health crises in our federal system. The need for regulatory standards that could preempt an unnecessary, parochial local quarantine requires Congress to act.

Keywords: quarantine, Ebola, yellow fever, interstate commerce, commerce clause, public health, shotgun, martial law, legislative history, epidemic, local government law, refugee, legal history, do not board, Atlanta, CDC, Georgia, nineteenth century, railroad, inspection, fumigation, Supreme Court, Gibbons