Burns- this is your time, bro.
I know we are in a post 9/11 Gitmo world, but from whence do Christie and Cuomo derive legal authority to quarantine people who basically are no public health threat. My google searches show that the Secretary of HHS can do things under the Commerce Clause, but it would have to be a real emergency, one would think. But in this case, we are detaining and holding people because they might get ill. What are the relevant statutes in NY and NJ give them the authority to detain people for what is basically a health pre-crime?
Is there any case law on this? I’d imagine the ACLU will have a field day with this if not.
mdp
Michael Dorf at Cornell Law has written an excellent primer on the case law of quarantine:
The Dangerman
I’ll ask the same question here as I did downstairs; if Cuomo is quarantining people that have been to Africa and been in the presence of Ebola, what about the healthcare providers treating Dr. Spencer in Bellevue?
I understand Christie; he’s eyeing a 2016 nomination. Cuomo is just being an asshole.
GHayduke (formerly lojasmo)
http://www.ncsl.org/research/health/state-quarantine-and-isolation-statutes.aspx
Penalty in NJis $10-$100
Penalty in NY is six months in jail
Ruckus
@The Dangerman:
Some people are at their best when using their strengths.
max
but from whence do Christie and Cuomo derive legal authority to quarantine people who basically are no public health threat. My google searches show that the Secretary of HHS can do things under the Commerce Clause, but it would have to be a real emergency, one would think.
Because quarantines were a basic part in the first part of this century, plenty of laws were written (in *every* state) allowing the state governments to impose quarantines. In the latter half of the century, quarantines stopped being so necessary, but all the laws were left intact. This action is basically routine, should the executive branch in a state wish to carry it out. (Note that I didn’t say it was *right*, just very typical.)
Is there any case law on this?
Burnsie can give you the specifics I suppose (although the statutes are going to be quite old – like 1930’s old), but really John, this is perfectly in bounds.
max
[‘Sorry dude.’]
Omnes Omnibus
The power to quarantine would fall under the state’s police power – the power of the state to regulate health, safety, and general welfare. The federal government does not (with limited territorial exceptions) have police power and must rely on enumerated constitutional authority to take action.
The Dangerman
@efgoldman:
True, but to get the RNC nomination, being an asshole is part of the gig (followed by running to the center after the convention as hard as possible).
Now, if Hillary comes out in favor of a quarantine…
wmd
Generally police power is a state issue. So the individual state constitutions are where they get the authority.
BR
This might be missing the forest for the trees. Even if this quarantine isn’t legal, we (globally) need to figure out how to do quarantine properly and without hysteria if Ebola is to be stopped. As I said in the previous thread, if 6 months from now, after the media and politicians have long forgotten about Ebola and have moved on, Ebola gains a foothold outside of West Africa, it’s going to be damn near impossible to put out all the burning embers that will land in the U.S. from the conflagration. At that point, if officials here haven’t learned from our current cases, I can see them freaking out far worse.
skerry
@BR: Like I put in the thread below, Mali has seen it’s first case and death from ebola. This is a major development.
This is the BFD of the ebola outbreak. It has spread to a poor neighboring country of over 15 million poor people that is ill-prepared to deal with it. IL/NY/NJ will be ok. Mali is a real issue.
PhoenixRising
Yup. In fact, quarantine is common law. It’s older than the Magna Carta, part of the common law tradition, and subject to limitations in US states’ case laws that provide many more rights to the quarantined than were taken as read in the statutes. Oldest US law dates from the 179something yellow fever epidemic in Philly.
Basically public health regulations are among our oldest and least updated laws. No one likes to be housebound by order of the state, so it’s been litigated out the ass and guess what, public health always wins. Legally.
beth
I guess I’m confused on this. Are these people being quarantined in a hospital or at home?
Omnes Omnibus
A compilation of state laws put together by the National Conference of State Legislatures just a couple of days ago.
BR
@skerry:
You’re exactly right. This is the problem, and I bet there’ll be very little U.S. coverage of the slow but steady spread from one poor region to another. So far, nothing has stopped its exponential growth, and exponentials are not something most folks are used to thinking about. If and when we’re at millions of cases — perhaps still all in poor pockets of Africa as soon as January — it’s going to be hard to keep it from spreading to India, China, and elsewhere in Asia. And a few months after that…?
Baud
Here is the official process in N.Y. It may be that Cuomo’s mandatory quarantine is not legally “mandatory.”
SP
I’m sure it’s legal, or if it’s not won’t be worked out until years after the fact, but if I hear the words, “Abundance of caution,” one more time I’m going to kick someone in the nuts.
Baud
This applies to NYC:
Omnes Omnibus
@Baud: Honestly, that doesn’t read like something that can be used to keep an asymptomatic person off of the streets.
JPL
@skerry: Don’t worry free enterprise will take care of it.
I’m so tired of the news media hyping the few cases in our country, while ignoring the risk of the disease spreading overseas. It’s so difficult not to touch those you love infected, even though you know your family could die. It’s horrific.
Baud
@Omnes Omnibus:
Quick googling on my part. Maybe there is something else in the statutes that applies, but that’s what came up first.
JPL
@beth: I don’t know where the nurse that returned is being quarantined but she has tested negative. The doctor’s girl friend is quarantined at the hospital and his friends at home.
Omnes Omnibus
@Baud: It is pretty much what is in the NCSL link I posted above. I think a quarantined asymptomatic person’s attorney would have a decent amount to work with.
Southern Beale
TENTH AMENDMENT!
LOL
Southern Beale
This whole thing is so stupid. Now people will fly into Atlanta, and you know how crazy the Red Staters are, so now everyone is going to do it.
Baud
@Omnes Omnibus:
Right. I guess the authorities are counting on folks not making a court case out of this.
skerry
@JPL: The girlfriend is back in her home now.
ETA: @Southern Beale: yeah, at this point, if I were a returning health care worker, I’d fly into Atlanta or Dulles and stay the hell out of NY/NJ/IL.
Southern Beale
Red State Ebola Freak-out Boogaloo:
I hope the doctor prescribed a media fast for her.
Southern Beale
@The Dangerman:
Well, for that matter, what about people from TEXAS? Can we quarantine people trying to leave Dallas?
ira-NY
It is 10 days before an election. You can expect the stupid to be especially strong.
skerry
@Southern Beale: I’d be in favor of a ban on travel for people from Texas, but it has nothing to do with ebola.
wmd
@Southern Beale:
Both the CDC and Emory university are in Atlanta. So they’re actually the best place for an infected person to land.
Howard Beale IV
@BR: India’s going to be a ticking timebomb.
JPL
@skerry: Thanks.
@Southern Beale: Oh that is good news so it can’t spread over a 1000 miles. Good news indeed.
Southern Beale
@wmd:
True!
I blame Texas. They fucked it up with that first patient.
Keith G
@skerry: My. How trite.
raven
mclaren
Silly Cole.
We live in post-legal America, where anything the authorities do is legal by definition.
Was there any case law on the president of the united states ordering the murder of U.S. citizens without a trial or even criminal charges?
Of course not.
But if the president does it, that means it’s legal (in the immortal words of Richard Nixon).
Was there any case law supporting the NDAA passed by congress that lets federal goons kidnap U.S. citizens and hurl them into dungeons forever without charges?
Of course not.
But if congress does it, that means it’s legal.
Was there any case law allowing the torture of innocent victims and then permitting the supreme court to deny them standing even to bring a case that their torture was illegal?
Of course not.
But if our police or our military or if federal agents did it, that means it’s legal.
Source: “Welcome to Post-Legal America,” TomDispatch, 30 May 2011.
The Dangerman
@ira-NY:
…and the BS. I was watching FOX today (yes, masochist) and they transitioned from the Lone Wolf Hatchet Man in NYC (reportedly, radicalized) to the two deputies killed in California so smoothly that I had to stop for a second and remind myself that the latter two deaths had nothing to do with jihadists….
mclaren
@Omnes Omnibus:
LOL!
You’re so cute. You still think America has laws that the authorities have to obey?
(giggle)
Honus
What would Burns know about this? He’s a tax lawyer.
Omnes Omnibus
@Honus: It would be quite taxing to be quarantined.
Culture of Truth
This falls under GOP vs Smaller Government.
Guess which side always wins.
burnspbesq
Everything I had to say has already been said, with one exception.
I don’t remember who said it first, but one of the meta-principles of Con Law is “the Constitution is not a suicide pact.” If the emergency is grave enough and the action being taken appears reasonable, good luck getting an injunction against it.
mclaren
Was the Boston lockdown legal?
Of course not. It was effectively martial law. Grossly illegal, a massive violation of posse comitatus. But of course that has no importance, since in post-9/11 America, anything a mugger with a badge does is legal.
https://s.ytimg.com/yts/swfbin/player-vflQefRRn/watch_as3.swf
Source: “America, we need to talk about the Boston lockdown,”
This is the way an enemy population gets treated under military occupation. Does an Iraqi or an Afghan ask if it’s legal when U.S. troops break down his door and gun down his wife and children for no reason?
Of course not. The rule of law has no place on a battlefield.
After 9/11, America became the battlefield. Get a clue, people — the rule of law is gone in these United Snakes.
And it isn’t coming back.
raven
PhoenixRising says:
October 25, 2014 at 9:30 pm
@efgoldman:
@Corner Stone
Tell you what, guys: Come up with an example of a health care worker whose home facility in the US scheduled him/her for a shift after a return from West Africa, and I will eat the scheduling software that was used to log those shifts. If the doctor was honest about both the conditions abroad and the proximity to patients with Ebola, that didn’t happen.
Because lawyers do in fact run hospitals, at the level of compliance management. This is not ‘what are the chances’ territory; one case of a returned volunteer infecting a patient in La Jolla will be the last mistake that institution ever gets to make.
My BIL can’t go onto the floor at the hospital where he has privileges for the days of incubation for the diseases he studies plus 12 hours, period. (His research focuses on the evolution of viri in the field, which requires him to supervise fecal sample collection in some choice locales around the globe that lack basic public health infrastructure, eg the sewer and the sidewalk and the well are all 1 thing).
@Elie:
I’m in favor of effective action against this public health crisis. While I respect the MSF volunteers providing primary and trauma care around the world in settings that are effectively stateless, I don’t think missionary volunteers are an effective model to contain this epidemic. For one thing, villagers have killed and dumped into latrine pits more Western-educated doctors than have been infected with Ebola. At some point, voluntarism isn’t the right tool.
I don’t think that the West Africans who will die or be orphaned, if the developed world continues to fail at the task, thank us for pissing into the wind with up to several dozen doctors and nurses. They need thousands of local people trained in the appropriate corpse disposal techniques, flanked by US Marines with guns, to enforce the public good against the religious and cultural beliefs fanning the flames of this epidemic, which is horrifyingly real to them, and they need those things last week.
raven
@mclaren: Why don’t you do the same?
burnspbesq
@Honus:
I sat through the same first and second year courses as every other law student, and there are some parts of it I haven’t forgotten.
In addition, if you do state and local tax, you have to know Con Law–at least Due Process, Equal Protection, and Commerce Clause, because one or more of those is going to be at the heart of nearly every challenge to a state tax law that allegedly treats in-staters more favorably than out-of-staters.
Honus
@Omnes Omnibus: good point. If you somehow work it into a Miller Act claim I could weigh in.
Culture of Truth
@mclaren: I don’t think ‘of course’ means what you think it means.
HRA
What has been made very evident is health care personnel with the exception of the first Dallas nurse have not adhered to mandatory self-quarantine. The second Dallas nurse went across country most likely taking advantage of time off rather than using her personal vacation time to plan her wedding.
The NYC doctor has said he was beginning to not feel well and yet he went out in public to several places.
These are people well educate in health care. This is what is worrying a lot of people. A lot of us are depending on their good judgment along with their qualifications to take care of our loved ones and ourselves. That is what is most mind boggling about these events.
I do know about quarantine first hand as a child and I remember it. In my day, once the doctor diagnosed me with whooping cough, the health officials came to nail the quarantine sign on the outside door of our home. To be fair, that was in Canada and not the US. I do not know how long the quarantine lasted. I was too sick to care.
For the record, I am not panicked about it. G is not at all happy about it since he is scheduled next week for his 3rd angiogram to insert more stents.
raven
@Culture of Truth: “isn’t coming back.” does!
burnspbesq
The other area of law that tax lawyers have to be on top of nowadays is administrative law. Between the Supremes saying Mayo that Chevron applies to administrative guidance from the IRS and Treasury, and gutting the Anti-Injunction Act in the Obamacare case, it’s a whole new world for challenges to actions taken by the IRS. I hated that course, but I’m glad I took it.
mclaren
@raven:
Because reminding bully-worshiping sociopathic Jeffrey-Dahmer-wannabes like you of the brutal realities of Shithole America remains one of the basic duties of a citizen of a democracy, as opposed to a cringing serf in corporate stratakakistokleptocracy.
As long as even one American still acts as though we live in a democracy, the thugs haven’t won.
Honus
@burnspbesq: yeah, right. You took con law at USC 30 years ago and you know all about whether the quarantining in NY is constitutional. What do they put In the water in Durham that produces such arrogance?
Omnes Omnibus
@burnspbesq: That would be Robert Jackson in a dissent in Terminiello v. City of Chicago.
@Honus: My creativity does not stretch that far.
raven
@mclaren: You’re such a fucking jackass.
burnspbesq
@Honus:
What the fuck is your problem?
I'mNotSureWhoIWantToBeYet
@raven: Who are you, and what have you done with raven?
;-)
Nice post. You should post longer thoughts more often.
Cheers,
Scott.
raven
@I’mNotSureWhoIWantToBeYet: No no, I forwarded that from the previous thread because I thought it was so good. I’m watching all 3 SEC games at once, I don’t have time for no stinkin posts!
Keith G
@HRA: My boss’s dad is in ICU in grave condition due to a bacterial infection acquired in hospital after surgery. A staggering number of Americans die each year because of this type of infection.
That would be a worry worth having.
scav
Between the endemic insanity, the epidemic ebola-ISIS-at.al. insanity and the finally-driven-insane-by-the insane neighbors outbreak, oh golly.
“Catastrophe is the mechanism of the Universe.”
The Sanity Inspector
Whatever quarantine measures Harvard takes, I want the states and feds to take.
HRA
@Keith G: I do know about bacterial infections form hospitals. An uncle died from it (Staph). I must not have been clearer in writing that I am not the overly panicky one in the family. I am the one assuring G. to calm down.
Tenar Darell
@Baud: Does it say when that law was first passed? Because I’m thinking this statute probably originates from the quarantine of “Typhoid Mary.” She refused to believe she was a carrier and continued to work as a cook. (Been remembering some long ago stuff I saw or read after this season’s The Knick).
PurpleGirl
@Honus: But Burns does remember how to look things up and where to do the research. So yes, he does know something about the quarantine laws, or can find out about them more quickly than I could I research them. He also has been thinking in a lawyerly fashion for many years.
Frankensteinbeck
@raven:
That’s a military invasion. If somehow the government of the country in question doesn’t view it as one, the people certainly will. Yes, it would solve a terrible problem, but create a new one. Instant civil war.
Omnes Omnibus
@Tenar Darell: I did a quick search of legislative history, but didn’t find anything. I would suspect that quarantine laws have been on the books since long before the the Typhoid Mary era.
raven
@Frankensteinbeck: it’s a repost
ulee
bacterial lung infection attacked me in 2001. I knew I was unwell and not breathing properly but I figured I’d ride it out. I was walking my friend’s dog while he was away and the machine came close to seizing up. Very scary finding my way home in a snowtorm stopping every 100 yards in a doorway to try to find a breath. Antibiotics cleared me out in a day. Without them, I’d be dead.
raven
@efgoldman: I thought the second part was really interesting and relevant to this post since they were on the same topic. On FDL it was called EPU’ing.
Tenar Darell
@Omnes Omnibus: you’re right about quarantine, because Wikipedia has this: Under sections 1169 and 1170 of the Greater New York Charter, (Mary) Mallon was held in isolation for three years at a clinic….
chopper
@Honus:
I find it funny since there are plenty of other attys here, often who work in the area of law being discussed.
mclaren
@burnspbesq:
Arrogant incompetent lawyers like you. “I read a book on the subject 30 years ago so now I’m qualified to make pronouncements on it.”
Hey! I flew on a plane 30 years ago! So now I’m qualified to dictate air traffic policy!
I rode in a car 30 years ago. So now I’m qualified to pontificate about national transportation policy and freeway design.
I played a game of paintball 30 years ago. So now I’m qualified to dispense diktats on American military policy.
Seriously…what a supremely clueless clown.
Omnes Omnibus
@efgoldman:
Forget it, ef. It’s mclarentown.
Omnes Omnibus
@efgoldman: I’ve done it as well. I felt dirty and in need of a shower afterwards.
Morzer
@The Dangerman:
Cuomo and Christie – each is the other’s asshole’s asshole.
Omnes Omnibus
@Morzer: So, a human Mobius strip rather than a human centipede. So very disturbing.
Morzer
@Omnes Omnibus:
It is indeed a troubling thought – but the last few days haven’t exactly shown human nature at its finest. Perhaps the brogovs are the appropriate symbol for how incredibly messed up the American Way now is.
Christie/Cuomo 2016 BC – Vote Concatenated Corrupt Cretins For A Better Flint-Knapping Future!
opiejeanne
@scav: Was that a quote from today’s Dr Who episode?
tybee
@mclaren:
i do not think that word means what you think that word means.
Ramalama
I had H1N1, went to my clinic at MIT where I worked, and because I hadn’t yet developed a fever (I’d just driven in from Montreal and was perfectly fine when starting out the drive and just got ill quickly as I drove south to Cambridge), the doctors would not hospitalize me. I BEGGED them. Told me it was ‘allergies’. When you’ve spent your life battling allergies, as I’ve done, you know when something’s not an allergy. I did. They didn’t believe me. I spent the next 2 weeks seriously seriously ill.
My friends in Montreal, at the same party as I’d been to, were diagnosed with H1N1 at the local rinky dinky clinic.
Which goes to show that even with scientists on a scientific campus, people are assholes and can therefore make mistakes. Even people being angels can make mistakes, but they weren’t angelic in my case.
Dealing with Ebola is going to take some serious federal effort to combat it when it does make its way full fledged to the US.
chopper
@mclaren:
lolwut?
I'mNotSureWhoIWantToBeYet
@Ramalama: Ouch. :-(
I think what’s going to “save” us is that it’s going to build-up slowly here. It’s not surprising that the first (initially unknown) case of Ebola was badly handled. Too often we think “that can’t happen here” when a new (to us) disease hits. Remember the 2001 anthrax attacks. Later on, once awareness hits, people over-react.
If the western Africa epidemic is still growing in January, then I’m sure there will be even greater awareness of the dangers, here. People are likely to be over-diagnosed initially, with lots of resources wasted. Of course, there are still likely to be far, far more deaths from flu. But perhaps the hysteria over Ebola in the US will cause people to become more afraid of the flu and more people will actually get immunized.
Another benefit of the US freakout over Eboa is that vaccines are finally being developed at an expedited pace. With luck, they’ll work and be distributed before it spreads to Pakistan, Afghanistan, India, etc., etc. :-(
But, even with all that, no chopper, that doesn’t mean that the freakout is good. ;-)
Cheers,
Scott.
GHayduke (formerly lojasmo)
@Tenar Darell:
Damn that lawless Eric Holder.
chopper
@I’mNotSureWhoIWantToBeYet:
wtf?
henqiguai
@Ramalama (#85):
Not a medical type, so… From what I have read, there is also a problem with medical professionals simply not having much (any) experience with a particular disease and simply do not know how to properly diagnose the thing. That’s not to necessarily excuse what seems to have been plain ole arrogance on the part of that clinic, but it does sometimes explain how these things can slip by.
I'mNotSureWhoIWantToBeYet
@chopper: You saw the wink, right?
(sheesh)
Cheers,
Scott.
chopper
@I’mNotSureWhoIWantToBeYet:
Ah, it was supposed to be passive-aggressive. nm.
I'mNotSureWhoIWantToBeYet
@chopper: (sigh).
Cheers,
Scott.
Tractarian
Shorter John Cole:
Quarantine bad!
Failure to self-quarantine – also bad!
Ripley
Okay, Sunday is when the meds run out. Good to know.
Elie
@I’mNotSureWhoIWantToBeYet:
What has to happen is that the vaccine has to beat out the explosion of cases in Africa. Once the initial infected people jump borders and can no loner easily be tied to the suspect three or four countries, we are in a reality that no bullshit quarantine, no matter how stringent, is going to fix. I hope we have vaccine real fast because if we get to the point that I am describing, we will have to seal off all commerce as well as passenger travel as there will be too many countries involved in the infection to just single out a few. One of the other bad things that people are not emphasizing is that poor application of quarantine principles just leads people to lie and avoid. Back when much of our quarantine law was developed, the internet and fast global travel and access did not exist. I am not sure that these laws have been re-examined in that light and therefore people are using flawed approaches to achieve a security that just isn’t going to be there.
I'mNotSureWhoIWantToBeYet
@Elie: Lots of worst-case things could happen, but we’re not destined to take that path.
MSF on 10/24:
The best thing to have to control this disease now is more qualified people on the ground and good, cheap diagnostics. US experience has shown that if people are treated early, their bodies will help them survive. MSF has successfully helped 1000 people recover, so while a vaccine is important, it’s not the most important thing.
It’s good to be worried and upset about the response thus far, but don’t be fatalistic.
Along those lines, this week’s On The Media is excellent on this topic…
:-)
Cheers,
Scott.
Ramalama
@henqiguai: You’d be absolutely right BUT — in the case with H1N1 everyone was talking about it. There was a campus-wide competition for the best marketing poster about washing hands / spreading germs in preparation for H1N1. There was an email sent out to everyone from an old dude who had survived the influenza pandemic in the early 1900s, admonishing everyone to take the flu warning seriously.
We were prepared.
If MIT couldn’t get THAT right, chances are low that Ebola striking the US and the US handling it well, might not be all that effective.
Not that we couldn’t do it as a country. But the country has changed and now we’re all of a sudden inept.
Jado
Regardless of case law, Christie sees the opportunity to showcase the advantages of a limited government that all republicans endorse by keeping out of the discussion populated by trained medical professionals.
OR he sees an opportunity to be a giant authoritarian asshole who imposes rules by might of armed police presence regardless of science or expert opinions. Just as a Republican is expected to do by his base.
Fuck Science, fuck experts, and fuck you too if you decide you don’t like it. Officer Pistolwhip here will be happy to discuss your legal options with you.