In Arizona v. United States, the Court found that state efforts to enforce immigration laws frustrated the federal immigration policy (which included a lot of non-enforcement), and was thus unconstitutional. I think SB 1070 in Arizona was best understood as either a 4th Amendment or Equal Protection violation depending on how it was enforced, but DOJ brought a pre-enforcement challenge on supremacy clause grounds. (As chance would have it, I write this post in Phoenix Skyharbor Airport waiting for my eventual chariot home to Houston).

Since then, I’ve been keeping a close eye on how other states enact policies that come into conflict with federal law–and the lack of any reaction from DOJ. Recently, New York City proposed a law that would give its police authority the power to ignore a federal warrant signed by a federal judge, if the City determines the individual is not dangerous. This is a clear frustration of federal immigration law, but I haven’t heard a peep from DOJ about a possible pre-enforcement challenge.

Another example popped up yesterday. A Doctor who knows no borders, who treated Ebola patients in Africa, has now brought the disease back to the Big Apple. And, it turns out, he travelled on several subway lines, went bowling in Williamsburg, and did all the things a New Yorker would do. In response, Governor Cuomo of New York and Governor Christie of New Jersey  “announced Friday that medical personnel returning to New York after treating Ebola patients in West Africa would be automatically subject to a 21-day quarantine.” This quarantine will be enforced by the states, and not the federal government.

The United States, as a matter of policy, has chosen not to implement mandatory quarantines for people returning from this region who treated Ebola patients. Why? We can’t be certain, but as the Times reports, “restrictions like those adopted by New York and New Jersey could cripple volunteers’ efforts at the front lines of the epidemic.” While it is often impossible to determine what exactly are the interests of the United States, here it seems that the federal government, pursuant to its plenary powers over foreign relations, has decided that our policy should not discourage people from helping others. Imposing travel bans and quarantines may harm the aid effort. (This calculus may seem entirely backwards to me, but whatever).

Is New York and New Jersey’s policy legal? The Times observes that “although the federal Centers for Disease Control and Prevention sets the baseline for recommended standards on Ebola, state and local officials have the prerogative to tighten the regimen as they see fit.”

This statement is at odds with DOJ’s position in Arizona v. United States. The federal government set the “baseline” standard for immigration authority, and Arizona was absolutely trying to “tighten” the immigration enforcement regime. DOJ took the position that any effort to help enforce (help?) the law actually frustrated the federal government’s priorities. Now, one difference is that states, under the police power, have plenary powers over the health, safety, and welfare of their people. States do not have the same authority under the immigration power. But the dynamic is exactly the same. If we take the supremacy clause as seriously as the DOJ does, even a state’s police power–the most important element of state autonomy– gives way to federal power.

Is it the case that the Executive’s policy with respect to foreign nations–and desire to encourage doctors to travel to Africa–trumps a state’s ability to stop a potential epidemic from spreading? Think carefully before you answer that question yes. If so, the DOJ bold position in Arizona v. US becomes a bit more precarious.

Now, I don’t expect the Obama Administration to file a pre-enforcement challenge to this quarantine.