Federal & State Pandemic Quarantine and Isolation Authority (Report to Congress)

You can download the full Congressional report discussing the government's quarantine authority by clicking this sentence.

The President's quarantine authority stems from Executive Order 13295 signed by George W. Bush on April 4, 2003, as amended by Executive Order 13375 on April 1, 2005, and it covers the following list of communicable diseases: cholera, diphtheria, infectious tuberculosis, plague, smallpox, yellow fever, viral hemorrhagic fevers, SARS, and influenza caused by novel or reemergent influenza viruses that are causing or have the potential to cause a pandemic.

The United States is currently at W.H.O. Phase 6 as a result of the H1N1 "swine flu." Phase 6 is pandemic level. Therefore, Secretary Kathleen Sebelius has the authority under Presidential Executive Order Section 13295 and section 361 of the Public Health Service (PHS) Act, 42 U.S.C. § 264 to make and enforce regulations necessary "to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession."

The report states that a person will be subject to misdemeanor criminal charges for violations of federal regulations issued pursuant to section 361 of the the Public Health Service (PHS) Act, 42 U.S.C. § 264, including federal quarantines or isolation orders. If you break the federal quarantine, you will be subject to the following:

A person may be subject to a fine of up to $250,000, one year in jail, or both. Organizational violations may be subject to fines of up to $500,000 per event. Federal district courts may enjoin individuals and organizations from violation of CDC quarantine regulations.

The report also discusses the Model State Emergency Health Powers Act. I do not know too much about this act, so I will do some further research.

The Model State Emergency Health Powers Act (the Model Act) seeks to “grant public health powers to state and local public health authorities to ensure a strong, effective, and timely planning, prevention, and response mechanism to public health emergencies (including bioterrorism) while also respecting individual rights.” It is important to note that the act is intended to be a model for states to use in evaluating their emergency response plans; passage of the Model Act in its entirety is not required, so state legislatures may select the entire model, parts of it, or none at all. Many states have used parts of the Model Act while tailoring their statutes and regulations to respond to unique or novel situations that may arise in their jurisdiction. The Model Act provides a comprehensive framework for state emergency health powers, including statutory authority for quarantine and isolation. Section 604 of the Model Act authorizes the quarantine or isolation of an individual or groups of individuals during a public health emergency. The Model Act encourages the public health authority to adhere to specific conditions and principles when exercising quarantine or isolation authority. These conditions and principles include ensuring that the measures taken are the least restrictive means necessary to prevent the spread of the disease; monitoring the condition of quarantined or isolated individuals; and providing for the immediate release of individuals when they no longer pose a substantial risk of transmitting the disease to others. The Model Act provides that a failure to obey the rules and orders concerning quarantine and isolation shall be treated as a misdemeanor.

There have been a lot of questions about how NORTHCOM is ready to mobilize domestically in this H1N1 pandemic and has provided Secretary of Defense Robert Gates with an order for authorization. Unless this pandemic causes people to riot and wild out, any military use will likely violate Posse Comitatus.

Courts have held that, absent a recognized exception, the Posse Comitatus Act is violated when (1) civilian law enforcement officials make “direct active use” of military investigators, (2) the use of the military “pervades the activities” of the civilian officials, or (3) the military is used to subject citizens to the exercise of military power that is “regulatory, prescriptive, or compulsory in nature.” To the extent that quarantine enforcement measures involve the compulsion of civilians to remain in or leave an area, for example, it appears that the Posse Comitatus Act would be implicated. Thus, unless a pandemic were to lead to significant civil unrest or call for other military activity already authorized pursuant to existing exceptions, Congress would have to enact a law to authorize military enforcement of health measures.

Source: Congressional Research Service