Quarantine and the Federal Role in Epidemics

55 Pages Posted: 12 Jun 2018  

Michael R. Ulrich

Boston University School of Public Health

Wendy K. Mariner

Boston University School of Law; Boston University School of Public Health

Date Written: May 24, 2018

Abstract

Every recent presidential administration has faced an infectious disease threat, and this trend is certain to continue. The states have primary responsibility for protecting the public’s health under their police powers, but modern travel makes diseases almost impossible to contain intrastate. How should the federal government respond in the future? The Ebola scare in the U.S. repeated a typical response—demands for quarantine. In January 2017, the Department of Health and Human Services and the Centers for Disease Control and Prevention issued final regulations on its authority to issue Federal Quarantine Orders. These regulations rely heavily on confining persons who may or may not be ill, raising serious questions about federal commitment to due process protections as well as the scope of statutory authority to impose quarantine. As the Supreme Court has stated in United States v. Salerno, “liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.” Unconstrained use of quarantines undermines both the rule of law and public confidence in government decisions in times of crisis. This article analyzes the regulations and argues for a rights-based approach to infectious disease control that also protects public health. By respecting constitutional rights, the federal government can encourage public trust and cooperation and minimize harm, both essential requirements for controlling an epidemic.

Keywords: public health, law, quarantine, infectious, contagious, disease, CDC, isolation, ebola, federal, constitutional law, civil commitment

Suggested Citation

Ulrich, Michael R. and Mariner, Wendy K., Quarantine and the Federal Role in Epidemics (May 24, 2018). SMU Law Review, Vol. 71, 2018. Available at SSRN: https://ssrn.com/abstract=3184451

Michael R. Ulrich (Contact Author)

Boston University School of Public Health ( email )

715 Albany Street
Boston, MA 02118
United States

Wendy K. Mariner

Boston University School of Law ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States

Boston University School of Public Health ( email )

715 Albany Street
Boston, MA 02118
United States
617-638-4626 (Phone)
617-414-1464 (Fax)

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