Yesterday I explained how New York and New Jersey are somewhat constitutionally restrained from enacting Ebola quarantines that are at odds with the President’s policy. Under the Obama Administration’s view of the Supremacy Clause in Arizona v. United States, the states cannot take actions that frustrate federal policy. Even if the state thinks they are helping (and objectively they are), the United States may find the assistance counter-productive, and thus the actions are pre-empted under the Supremacy Clause.
Today, the Times reports that the White House is pressuring New York and New Jersey to reverse their mandatory policy of quarantining Ebola patients.
The Obama administration has been pushing the governors of New York and New Jersey to reverse their decision ordering all medical workers returning from West Africa who had contact with Ebola patients to be quarantined, an administration official said.
This is a repeat of Arizona SB 1070. Arizona said the federal government was not going far enough in its protection of the borders, so they decided to enact additional laws that required people show ID to ensure their legal status. (I’ll put asides any 4th Amendment or Equal Protection issues, as this was a pre-enforcement facial challenge, not as applied). The Obama Administration took Arizona to Court. Will the same fate lie for New York and New Jersey. Probably not. But, there will be “pressure” to “rescind the order.”
Ever since Mr. Cuomo, a Democrat, and Mr. Christie, a Republican, announced the plan at a hastily called news conference on Friday evening, top administration officials have been speaking with Mr. Cuomo daily and have also been in touch with Mr. Christie, trying to get them to rescind the order.
Samantha Power, UN Ambassador, calls these policies “haphazard” and counterproductive.
Power, who is traveling in West Africa, told NBC News that quarantine plans in New York, New Jersey and Illinois are “haphazard and not well thought out,” and could discourage health workers from going to West Africa in the first place.
“We cannot take measures here that are going to impact our ability to flood the zone,” Power said. “We have to find the right balance between addressing the legitimate fears that people have and encouraging and incentivizing these heroes.”
Officials in New Jersey, New York and Illinois, who acted in the wake of a new Ebola case in New York, said they cannot rely on people to quarantine themselves.
“I don’t think when you’re dealing with something as serious as this you can count on a voluntary system,” said New Jersey Gov. Chris Christie, a Republican, speaking onFox News Sunday. “This is the government’s job.”
He added: “I think this is a policy that will become a national policy sooner or later.”
Of course it is the “government’s job.” But which government? The state, or the federal government? Darrell Issa explains that the states will act where the United States will not:
Republican members of Congress have also called on the Obama administration to enact more travel restrictions into and out of West Africa.
Rep. Darrell Issa, R-Calif., chairman of the House Oversight and Government Reform Committee, told CNN’s State of the Union that state officials are taking action in the absence of federal leadership.
“Governors of both parties are reacting because there isn’t a trust in the leadership of this administration,” Issa said.
But wasn’t that exactly the issue in Arizona v. US? The states cannot fill this gap.
And now, other states are imposing similar quarantines:
But in that time, two more states – Illinois and Florida – announced that they were instituting similar policies.
Federal officials made it clear that they do not agree with the governors about the need or effectiveness of a total quarantine for health care workers, though they were careful not to directly criticize the governors themselves.
A senior administration official, who did not want to be identified in order to discuss private conversations with state officials on the issue, called the decision by the governors “uncoordinated, very hurried, an immediate reaction to the New York City case that doesn’t comport with science.”
This sounds likes a perfect case for a single federal policy, yet the states are not satisfied with the Obama Administration’s approach.
Add to this mess the inevitable due process violations of the people being detained. One woman, who was exposed to ebola but has exhibited no symptoms, is being kept in a tent in New Jersey in “inhumane” conditions.
At the same time, the first person to be forced into isolation under the new protocols, Kaci Hickox, a nurse returning from Sierra Leone, planned to mount a legal challenge to the quarantine order. Despite having no symptoms, she has been kept under quarantine at a hospital in New Jersey. On Sunday, she spoke to CNN about the way she has been treated, describing it as “inhumane.” …
She also blasted Mr. Christie for saying that she was sick, when it was clear that she was not running a fever and had tested negative for Ebola.
“The first thing I would say to Governor Christie is that I wish he would be more careful about his statements about my medical condition,” she said. “If he knew anything about Ebola he would know that asymptomatic people are not infectious.”
She spoke from the inside of a medical tent where she has been quarantined since Friday night. The tent has a portable toilet, but no shower. There is no television and weak cellphone reception.
“I also want to be treated with compassion and humanity, and I don’t feel I’ve been treated that way in the past three days,” she said in the interview. “I think this is an extreme that is really unacceptable. I feel like my basic human rights have been violated.”
Will litigation follow? Can you imagine a federal lawsuit where DOJ seeks an injunctions restraining Chris Christie from quarantining Hickox?
The ACLU is already warning about “constitutional concerns” about the “police power.”
Civil liberties activists raised concerns about the constitutionality of the new rules, warning they could discourage health workers from volunteering to fight Ebola in Africa.
“We understand the importance of protecting the public from an Ebola outbreak,” the American Civil Liberties Union said in a statement reported by the New York Times, adding that the mandatory orders for isolation “raise serious constitutional concerns about the state abusing its police powers by detaining people who are exhibiting no Ebola symptoms”.
I’ll link to a post I wrote two months ago, titled “Liberty in the Time of Ebola.” The time to consider these issues is before, not during pandemics when liberties tend to go out the window. Now, it is already too late.
Update: Late Sunday, the Hill Reports that the administration is working on policies to deal with workers returning from Western Africa. Can you say, pre-emption?
A senior administration official said late Sunday that work is underway on new guidelines for healthcare workers returning from Ebola-ravaged areas.
The official said the administration is working to develop guidelines that will protect Americans and enable workers to tackle the epidemic in West Africa.
“We have been taking a close look at policies for returning healthcare workers, recognizing that these medical professionals’ selfless efforts to fight this disease on the frontlines will be critical to bringing this epidemic under control, the only way to eliminate the risk of additional cases here at home,” the official said.