Federal Executive Power and Communicable Disease Control: CDC Quarantine Regulations

The Centers for Disease Control and Prevention (CDC) recently published official notice of proposed "Control of Communicable Diseases" regulations that empower the federal government to deprive individuals both of civil liberties (through quarantine, surveillance, and contact tracing) and of economic interests (by permitting the inspection, disinfection, and destruction of private property).¹ The rules also impose a mandate on airlines to collect and provide personal passenger data to the CDC. The Department of Health and Human Services justified these measures on grounds of the potential human and economic costs of dangerous biologic agents. To be sure, the federal government has a major interest in preventing the spread of communicable diseases in the United States. But to what extent do these powers conform to the rule of law? Are there adequate checks and balances?

Scope of Federal Power

The Public Health Service Act (PHSA) authorizes the "apprehension, detention, or conditional release" of individuals for only a small number of diseases listed by executive order—cholera, diphtheria, infectious tuberculosis, yellow fever, viral hemorrhagic fevers, SARS, and novel influenza viruses with pandemic potential.² The new regulations would significantly expand the scope of federal power by defining "ill person" to include the signs or symptoms commonly associated with quarantinable diseases—fever, rash, headache, persistent cough, diarrhea, severe bleeding, jaundice, and changes in cognitive functioning. This inclusive approach affords the CDC greater flexibility and adaptability. The proposed rule captures a wide, undifferentiated range of signs and symptoms, however, allowing for the unfettered exercise of discretion by lay directors of federal quarantine stations. By contrast, the WHO's new International Health Regulations contain specifications of health threats that come within its authority.³ An agency's jurisdiction and power must be contained within clear boundaries, which create accountability to the public and to affected communities.

Federal Quarantine Authority: Personal Liberty

Quarantine should be based on clear legal authority and applied safely and effectively while according respect to the individual. The regulations would empower the CDC to provisionally quarantine ill passengers for up to three business days, and to order full quarantine on grounds of a reasonable belief that a person or group is in the qualifying stage of a quarantinable disease. This standard is too vague. Quarantine should be based on clear and convincing evidence that the individual poses a significant risk to the public. The length of quarantine may not exceed the period of incubation and communicability of the disease.

During periods of quarantine, officers can "offer" individuals vaccination, prophylaxis, or treatment, but refusal can result in continued deprivation of liberty. Furthermore, the rule does not ensure that quarantine would be safe, humane, and accompanied by high-quality medical care. HHS is authorized to pay for necessary medical and other services but is not bound to do so. In practice, quarantine may take place in numerous venues, such as private homes, hospitals, and other institutions.

The CDC does not intend to provide individuals with hearings during a provisional quarantine.⁴ A full hearing may not be feasible, but some way of contesting arbitrary or discriminatory actions is needed.

Individuals can request an administrative hearing to contest an order for full quarantine—not to review the legal authority (which is available through habeas corpus), but to contest the factual and scientific evidence of exposure to or infection with a quarantinable disease. The administrative hearing comports with some basic elements of due process: notice, hearing officer, and communication with counsel.

The provision of procedural due process for full quarantine is long overdue and constitutionally required. Still, the proposed regulations have deficiencies. First, individuals must affirmatively request a hearing, which may delay or prevent independent review for those who cannot understand or act on information provided in the quarantine order. Second, the proceedings can be informal and may even be based exclusively on written documents. There is also no expressed right to paid legal representation for the indigent. Finally, the hearing officer may be a CDC employee who makes a recommendation to the CDC director. The European Court of Human Rights, in a case I litigated, found a similar scheme in the United...