The following are my notes from an interview with Michelle Mello J.D, Ph.D., who is a a professor of law and health policy at Stanford University, with a particular focus on origins of public health law, focusing on infectious disease and epidemics. This interview appeared in The New England Journal Of Medicine Nov 18, 2021.
Audio Interview: The Legal Basis for Covid-19 Restrictions and Mandates
What are the legal guidelines for placing restrictions on
infected individuals? The legal basis
depends on whether the state or federal government is placing the
restrictions. The constitution allows
both state and federal government to place restrictions, but they are
different. The legal basis for the
federal government is based on their role in regulating interstate and
international commerce. They can place
quarantine restrictions when there is a possibility of a disease traveling over
state lines or international borders that might hurt commerce. The “Public Health Service Act” can be
triggered under these circumstances by the CDC with delegated authority from
the Secretary of Health and Human Services.
This gives the CDC powers to limit the spread of disease over state
lines. The CDC’s power to quarantine has
generally meant in the past quarantining some people but more often animals or
produce. In this pandemic the CDC and
Secretary of HHS have expanded the scope of quarantine powers. States authority to impose quarantine comes
from what’s called the “police power” which allows them to instate policies for
public health and safety and is not about the movement of goods and services as
it is on the federal level. The “police
power” is derived from the tenth amendment to the constitution which grants
powers to the state, which the state can use for a wide variety of public
health measures. The limits on these
measures are that they be necessary, reasonable, and are in line with due process
and other constitutional rights.
Courts have generally sided with the states when policies have been contested
although they have intervened to end some policies. There haven’t been uniform guidelines in the
lower courts, but now with COVID there is more involvement of higher courts. The Supreme Court has started providing some
more consistent boundaries, but those boundaries are being interpreted
differently in different states. During the
current pandemic personal health information seems to be less protected than it
otherwise is. These policies can intrude
on personal freedoms and protections and are called “dignitary harms”. Policies will sometimes include invasions of
privacy and this is allowed when it can be balanced, which is subjective. Traditionally it has been accepted that privacy
has to be somewhat violated when infectious disease is involved. HIPPA has a public health exception that
allows health care providers to use and disclose personal health information to
public health authorities without the person’s permission.
The federal government itself has broad powers to intervene, but the intervention has to be associated with an area in the constitution where it already has jurisdiction, such as immigration, taxation, spending power, and national security. Actions by the federal government that don’t involve movement of money one way or the other (taxation or spending), or that doesn’t cross state boundaries, it is often contested. It is much harder for the federal government to place restrictions on private businesses or other private actors and institutions such as schools. When it comes to the government the question is what allows them the right to place restrictions, when it comes to private entities the question is basically the opposite- what limits their actions. Some limitations from the government include civil rights for protected groups, such as groups defined by racial, ethnic, religious, or other characteristics. Occupational health regulations is another area in which the federal government has jurisdiction. In some states, governors have issues mandates that limit private business’ ability to decide for itself what it’s policies around vaccination and masking should be.
In the context of the COVID 19 pandemic, there have been two policies in particular that the federal government has taken ostensibly as extensions of the power to quarantine, which are restrictions on the operation of cruise ships and the eviction moratorium. Both of these have undergone many challenges. The appropriate scope of quarantine authority during the pandemic is still being worked out in these cases. While the level of authority and restrictions have been relatively agreed upon in the past, the COVID 19 pandemic has challenged these norms and we are seeing a breakdown in cooperation and agreement between the federal and state levels. Interviewee says that the scientific community has stepped up to provide the justification for the actions that the federal government wants to take, such as mask and vaccine mandates, but so far not all governors are willing to implement these measures.
The interviewer points out that many of the measures taken by the governments are targeted at not only people who are sick or potentially contagious, but at everyone, even those who are healthy. He asks under what conditions can government place restrictions on everyone. There is a long history of the courts supporting vaccine mandates as long as they are shown to be reasonable and necessary. Quarantine and “stay-at-home” orders are more problematic. Historically, there was a case known as Joo Ho in which a barbed wire fence was constructed around an area of Chinatown in San Francisco (based on fear of an outbreak of bubonic plague) that kept both sick and healthy people inside with restricted access to food and medical care. The Supreme Court struck this down as discriminatory and ineffective, in part because it confined healthy people along with sick people. The interviewee explains that measures that infringe on religion seem to be less tolerated than before. Private institutions such as universities are not limited by the constitution, but do face limits as far as placing undue burdens on people based on religion or disability status.
The interviewee argues that because of changes in society over time, handling diseases outbreaks on a state level makes less sense and the balance of power should lean more towards the federal government. This is because in the past pathogens and the people or animals who carried them didn’t travel as much or as far or as fast as they do now. The CDC is intended to take an advisory role and as a source of expertise and knowledge about transmissible disease that is available to all states and can serve as a basis for relative uniformity.
