I previously blogged about the evolution of notions of individual liberty and federalism during the smallpox outbreak–and resulting compulsory vaccination movements–during the early 20th century.

Laura Donohure has a cool paper that explores similar notions of how American, and Brittish views of liberty and government evolved to respond to diseases.

The United States and United Kingdom each frame the threat posed by pandemic disease and biological weapons as a national security concern. In both countries, moreover, identifying and responding to the threat posed by, on the one hand, naturally-occurring disease and, on the other, man-made biological agents, are linked. Where the two countries part ways is in what they see as the role of the central government and most effective response to the twin threats. U.S. federal law and policy anticipates the federal imposition of quarantine and isolation. The United Kingdom does not. This article offers a novel explanation for why the two countries have assumed such different approaches. It suggests that the answer is deeply historical, shaped by each country’s unique experiences with disease, as well as each country’s constitutional framework. The two countries have followed distinct – and essentially reverse – trajectories, which continue to influence the manner in which current law and policy has evolved in respect to pandemic disease and biological weapons.

In the United States, what started during the colonial period as a decidedly local authority evolved to be a local and state authority. For more than a century, the federal government proved reluctant to interfere. It was not that disease did not pose a severe threat – or, indeed, that it was never used as a weapon. To the contrary, the colonies and, later, the states, had significant concerns about the effects of disease and, even during the Revolutionary War, there was evidence and widespread belief that the British used smallpox as a weapon. During the Civil War there were several reported efforts by the Confederates to use biological weapons against Union forces. But the federal government did not adopt quarantine authorities. Quarantine was widely regarded as a central tenet of state police powers. It was so decidedly local, that many states explicitly gave towns the authority to exclude any persons or goods believed to carry sickness – even if they traveled or were transported from other U.S. cities or states.

During the late nineteenth century, the balance of power subtly shifted. The federal government avoided a direct Commerce Clause assertion and, instead, began to use the power of the purse to buy up local and state ports, transferring their operation to federal control. Federal statutory and regulatory authorities followed. By the end of the twentieth century, federal quarantine law – at least in respect to inter-state travelers and those entering or leaving the country – had become firmly established. By the early 21st century, policy documents had begun to refer to the potential use of quarantine to respond either to pandemic or targeted attacks, shifting the discussion to Article II and foreign affairs. National security demanded a federal, not a state, response. Post-Hurricane Katrina, an even more visible discussion emerged, tied to the precise role of the military in enforcing domestic provisions.

The United Kingdom, in contrast, developed in the opposite direction. The first recorded quarantine orders, issued under Henry VIII, demonstrate a monarch willing to use the military to exercise his Royal Prerogative. As the constitutional structure of the country changed, the manner in which quarantine was accomplished altered. With the Stuarts’ realization that quarantine could be wielded as a powerful political tool, use of the provisions led to greater friction with Parliament. The Privy Council reformed its approach, seeking statutory authorization prior to issuing orders. The demise of the Council and transfer of public health authorities to Parliament led to the abandonment of broad quarantine power. Commercial interests lobbied it out of existence. Aided by medical treatises, the 19th century sanitation movement, and the growth of a professional bureaucracy, local port authorities and public health provisions took their place. Accordingly, by the early twenty-first century, no broad quarantine laws existed, and such policy documents as were issued to outline the government’s response in the event of biological weapons or pandemic disease specifically noted that quarantine would not be used.

Threading through each account is the importance of the type of threat faced. The specific diseases each country confronted, which differed, played a key role in shaping subsequent measures. The United States struggled with yellow fever, smallpox, and cholera. The United Kingdom developed its law primarily in response to plague. This influenced the contours of the measures and the groups most impacted by quarantine, leading to a tolerance of such provisions on the American side of the Atlantic, and a rejection of the same on British shores.

From the paper, a few interesting passages…

First, a quote from Marshall in Gibbons on the power of the state to provide for quarantines:

That immense mass of legislation, which embraces every thing within the territory of a State, not surrendered to the general government: all which can be most advantageously exercised by the States themselves. Inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a State…369

The states balked at a Civil War-era bill that would have placed the power of quarantine with the Federal Government.

The war underscored the country’s vulnerability to disease as well as the difficulty of amassing, at a state level, the resources necessary to combat it. When cholera hit in 1865, New York failed in its effort to obtain assistance from the Secretary of the Navy.396 A number of states refused to introduce quarantine. And so a wartime bill took the bull by its horns, seeking the transfer of quarantine to federal hands.397 The bill would have empowered the Secretary of War, with the assistance of the Secretaries of the Navy and Treasury, to enforce quarantine at all ports of entry, as well as to establish cordon sanitaire in the interior.398

Senators balked. Henry B. Anthony (R-RI) pressed Senator Zachariah Chandler, chair of the Commerce Committee, on the extent of the Secretaries’ authorities to enforce quarantine. “[A]ll the powers at their command may be used if necessary,” Chandler replied.399 Shocked, Anthony asked if they could impose martial law. Chandler answered that they could “use any power requisite to stop the cholera.” Anthony protested, “I would rather have the cholera than such a proposition as this.”400 Even in the wake of war, with the enemy forces employing disease as a weapon, legislators proved reluctant to transfer state authority to the federal government.

Rather than using its commerce power, the Feds relied on the spending power to–in South Dakota v. Dole terms–buy out the states.

Interestingly, the states requested the Feds intervene in three areas that were in the provenance of federal power–quarantines and cleansing at the border:

Finally, the conference made specific demands of the Federal government: first, that the Federal government disinfect all mail.432 Second, that the Secretary of the Treasury increase revenues for the patrol service on the coast of Florida to the extent necessary to prevent smuggling.433 Third, the conference requested that the U.S. government enter into negotiations with Spain with view towards placing U.S. sanitary inspectors at Spanish ports with such legal jurisdiction as would be necessary for the enforcement of health regulations.434 Delegates were particularly concerned about the threat of yellow fever from Cuba, the “fountain head” of the disease.435

…

It is important to note here that in the communities most affected by quarantine provisions, the United States differed greatly from the United Kingdom. In England in particular, the primary concern had historically been with plague—a disease carried by wool, silk, and other goods. Thus it was the merchant class, not the immigrant class, which was most affected by restraints on travel and trade. Resultantly, the English shipping industry took a strong interest in the question of quarantine and, as soon as it was constitutionally viable, lobbied national quarantine authority out of existence. In contrast, no organized lobby stood ready to defend immigrants arriving in the United States. Indeed, the almost redemptive quality of cleansing came to justify and reinforce quarantine at the borders.

There is a discussion of a Supreme Court case, MOrgan’s Steamship Company v. Louisiana Board of Health that I had never heard of:

The case stemmed from the Louisiana legislature’s decision in 1882 to authorize the construction of a quarantine station in New Orleans. A subsequent statute required vessels and passengers entering the Mississippi River through the station to pay a fee and undergo examination.455 Morgan’s Steamship Company challenged the statute, saying that it violated the Constitution by imposing tonnage duties and interfering in the federal regulation of commerce.456

The Supreme Court disagreed. The precautions taken by Louisiana were “part of and inherent in every system of quarantine.”457 They differed “in no essential respect from similar systems in operation in all important seaports all over the world, where commerce and civilization prevail.”458 Justice Miller, writing for the Court, added, “If there is a city in the United States which has need of Quarantine laws it is New Orleans.”459 Not only was the city on the front line of defense, but New Orleans served as a funnel through which trade to the interior flowed. While quarantine laws impacted interstate commerce, it was better to reserve such matters to the states—at least until invalidated by Congress:

[I]t may be conceded that whenever Congress shall undertake to provide for the commercial cities of the United States a general system of quarantine, or shall confide the execution of the details of such a system to a National Board of Health, or to local boards, as may be found expedient, all State laws on this subject will be abrogated, at least so far as the two are inconsistent. But until this is done, the laws of the State on this subject are valid.460

The court noted that for nearly a century, Congress had refrained from directly regulating quarantine; nor had it passed “any other law to protect the inhabitants of the United States against the invasion of contagious and infectious diseases from abroad.”461

Following this case, the Feds began to pass more quarantine laws, that still focused on the interstate spread of disease:

In 1890, however, Congress began to flex its muscles, passing a statute that authorized the Secretary of the Treasury to develop rules and regulations to prevent the interstate spread of disease.465 Hitherto such authorities applied only to the nation’s ports. The statute specified cholera, yellow-fever, small-pox, and plague, stating that whenever the President was satisfied as to its presence, “he is hereby authorized to cause the Secretary of the Treasury to promulgate such rules and regulations as in his judgment may be necessary to prevent the spread of such disease from one State or Territory into another…”466 The concentration of these authorities in the Secretary of the Treasury underscored the nexus between commerce and disease.

Following Jacobson v. Mass, which upheld mandatory vaccination, “the Federal government continued to assist the states, while quietly accepting transfer of authority and equipment in what one mid-20th century scholar referred to as “a process of accretion and erosion.”498

In 1921, the last state transferred its holdings and the authority to regulate them, to the federal government, bringing the total to approximately 100 quarantine stations.499 The Surgeon General reflected: The transition of a quarantine system, composed of units operated by the municipal or state authorities, to a compact federal organization has been gradual, but persistent. One after another cities and states have transferred their quarantine stations to the national Government, so that, with the passing of the New York Quarantine Station from state to national control on March 1, 1921, the Public Health Service now administers every station in the United States and in the Hawaiian Islands, the Philippines, Porto Rico, and the Virgin Islands.500 . . .

Perhaps most importantly, it pulled quarantine from the grasp of local politics, and placed it in the hands of qualified medical personnel.502 Surgeon General Hugh Cumming proclaimed it as the triumph of science over politics.503

The last section of the paper (most interesting for my purposes) is titled Constitutional Framing:

Into this mix stepped the courts: while quarantine fell firmly within state police powers, Congress might have room to preempt state law where commerce bore the cost. Encouraged by Morgan’s Steamship, the legislature gave the Secretary of the Treasury the authority to develop rules and regulations to prevent the interstate spread of disease. An important Solicitor General determination spurred Congress to act not just inter-state, but, where state or local measures were deemed ineffective or non-existent, at a state or local level. New measures required bills of health to be obtained by all vessels sailing for the United States from abroad, and a stronger epidemiological surveillance program required U.S. consuls abroad to make weekly reports. By the early 20th century, while the federal government had made advances in the realm of quarantine, it had yet to preempt the states. Indeed, states still regularly exercised their quarantine authorities. Direct confrontation, however, proved unnecessary. The Spending Clause paved the way for federal control of local ports.

Very good history. I was planning on writing more about the development of federalism, individual liberty, and diseases in the Progressive era. This should provide a great background for me.