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Law360 (March 15, 2020, 4:13 PM EDT )
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| Mary-Christine Sungaila |
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| Marco Pulido |
Two days prior, the World Health Organization declared the coronavirus outbreak a global pandemic[2] and the president delivered an Oval Office address outlining the U.S. government's increased efforts to respond to the coronavirus.[3]
Nearly half of all states (including California, New York and Washington) have also declared public health emergencies amid the rise in coronavirus cases.[4] California, for example, declared an emergency earlier this month and has now recommended the cancellation of gatherings of 250 people or more that are scheduled to take place in March.[5]
While much of the current focus is on the responses of the federal and state governments, local governments and public health officials also have important roles to play in the shared goal of mitigating and containing the coronavirus.
In this article, we outline the historical and legal role that local governments and health officials have had in curbing the spread of infectious diseases. We also offer some of the reasons why local partnerships are indispensable to the current efforts of the state and federal governments to address the spread of the coronavirus, as well as any future public health crises.[6]
Historical and Legal Role of Local Governments and Health Officials
Medical quarantines have a long historical pedigree in European and American law, although they are rarely used today due to advances of modern medicine.[7] Historically, local and state governments have taken the lead in stopping the spread of infectious diseases through the use of quarantine and isolation measures.[8]
According to a 2018 article by professor Polly Price of Emory University's School of Law:
In most states, the authority to quarantine was made explicit by legislation granting the power to declare quarantines to the governor as well as to counties and municipalities.[10][Both of these measures] are used to protect the public by preventing exposure to people who may be infected with a contagious disease. Isolation is used to separate ill persons who have a communicable disease from those who are healthy. Isolation may involve confinement to a healthcare facility or at home. Quarantine, on the other hand, separates and restricts the movement of people who are not sick, but who may have been exposed to a communicable disease. These people may not know they have been exposed to a disease, may have the disease but [do] not show symptoms, may develop the disease at a later date, or they may never develop the disease at all.[9]
Early U.S. Supreme Court case law confirmed the power of states and local governments to implement health measures to protect their communities from infectious diseases.[11] In Jacobson v. Massachusetts, for example, the Supreme Court rejected a challenge to a city ordinance that required certain persons to get smallpox vaccinations.[12]
In so holding, the court reasoned: "[U]pon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members."[13]
During this era of primary state and local control of public health measures, federal legislation generally called for federal noninterference and cooperation with the states' execution of their quarantine laws.[14]
Over the years, the federal government increased its involvement in public health measures to control the spread of infectious diseases in the nation.[15] In 1944, Congress enacted a key statute, the Public Health Service Act, which provides that:
The statute limits federal quarantine power to U.S. entry points and to persons believed to be moving or about to move from a state to another state.[17] And authority to carry out the functions authorized by the Public Health Service Act has been delegated to the Centers for Disease Control and Prevention.[18][T]he Surgeon General, with the approval of the Secretary [of Health and Human Services], is authorized to make and enforce such regulations as in his [sic] judgment are 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.[16]
Yet even in the modern era, the CDC has most commonly played a supportive role, with the states taking the lead in quarantine matters.[19] And while the Code of Federal Regulations permits unspecified intervention in the event that measures by state or local health authorities "are insufficient to prevent the spread of any of the communicable diseases from such State or possession to any other State or possession," it is unclear to what extent this authority would allow the federal government to interfere with state and local measures to prevent the spread of infectious diseases among persons within a given state or locality.[20]
This issue fortunately does not arise often, as governments at all levels usually coordinate their responses to infectious diseases. Indeed, as the CDC has previously observed:
Reasons Local Governments and Health Officials Must Continue to Have a Seat at the Table[The U.S. Department of Health and Human Services] defers to the state and local health authorities in the primary use of their separate quarantine powers. Based on long experience and collaborative working relationships with our state and local partners, CDC anticipates the need to use [its] federal authority to actually quarantine a person will occur only in rare situations, such as events at ports of entry or other time-sensitive settings.[21]
Although coordination between the federal, state and local governments has most often been the norm in responding to the spread of infectious diseases, the coronavirus has given rise to lawsuits by local authorities against the state and federal governments.[22]
For example, in City of Costa Mesa v. U.S. in the U.S. District Court for the Central District of California, the city won a temporary restraining order to block the planned placement of coronavirus-positive patients in a facility that had been declared uninhabitable for homeless individuals.[23]
In support of its request for a temporary restraining order, the city of Costa Mesa argued (among other things) that the placement was planned to be made without properly communicating with local authorities and did not appear to be founded on any medical reasoning.[24] The case ended soon thereafter, when federal authorities nixed the plan altogether.[25]
As illustrated by the City of Costa Mesa case, local governments and local health officials have an indispensable role to play in the state and federal governments' efforts to combat the current public health crisis and any future ones.
For instance, local authorities hold much of the institutional knowledge that the state and federal governments need to make better-informed decisions. Local governments and health officials are likely to have important insights on, for example, the suitability (or lack thereof) of a particular site for a proposed quarantine or isolation measure; the level of preparedness of the local first responders and the local hospitals; and the overarching steps a given community needs to take to prepare itself to address the potential spread of a new infectious disease in their community.
Further, many localities are authorized to declare emergencies themselves to respond to public health emergencies in their communities.[26] This has happened, for example, in many counties in California.[27] Keeping local authorities informed about the potential spread of an infectious disease in their communities not only allows them to prepare for, and assist with, a coordinated governmental response, but it also allows local authorities to mobilize their own resources toward the common goal of stopping and mitigating the spread of an infectious disease.
Conclusion
Local governments and health officials have historically played an important role in combating the spread of infectious diseases. The response to the coronavirus should be no different. Local authorities know their own communities best and have valuable information to share with state and federal governments; this valuable information and input underscores the need to have local authorities at the decision-making table in public health crises such as this.
Mary-Christine Sungaila is a partner and Marco Pulido is an associate at Haynes and Boone LLP.
Disclosure: The authors served as counsel for the city of Costa Mesa in City of Costa Mesa v. United States.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] Brooke Singman, Trump declares national emergency over coronavirus, says 'we will overcome the threat', Fox News (Mar. 13, 2020), https://www.foxnews.com/politics/trump-declares-national-emergency-coronavirus (last visited Mar. 13, 2020).
[2] World Health Organization, WHO Director-General's opening remarks at the media briefing on COVID-19 - 11 March 2020 (Mar. 11, 2020), https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-the-media-briefing-on-covid-19---11-march-2020 (last visited Mar. 12, 2020).
[3] The White House, Remarks by President Trump in Address to the Nation (Mar. 11, 2020), https://www.whitehouse.gov/briefings-statements/remarks-president-trump-address-nation/ (last visited Mar. 12, 2020).
[4] Rosie Perper, et al., 21 states have declared states of emergency to fight coronavirus — here's what it means for them (Mar. 12, 2020), https://www.businessinsider.com/california-washington-state-of-emergency-coronavirus-what-it-means-2020-3 (last visited Mar. 12, 2020).
[5] California Department of Public Health, Gathering Guidance (Mar. 12, 2020) https://www.cdph.ca.gov/Programs/ CID/DCDC/CDPH%20Document%20Library/Gathering_Guidance_03.11.20.pdf (las visited Mar. 12, 2020).
[6] See Michael R. Ulrich, et al., Quarantine and the Federal Role in Epidemics, 71 S.M.U. L. Rev. 391 (2018) (observing that every "recent United States federal administration has faced a real or potential epidemic, from Reagan and HIV to Obama and Ebola").
[7] Arjun K. Jaikumar, Red Flags in Federal Quarantine: The Questionable Constitutionality of Federal Quarantine after NFIB v. Sebelius
, 114 Colum. L. Rev. 677, 684 (2014).[8] Polly J. Price, Epidemics, Outsiders, and Local Protection: Federalist Theater in the Era of the Shotgun Quarantine, 19 U. Pa. J. Const. L. 369, 383 (2016).
[9] Polly J. Price, Do State Lines Make Public Health Emergencies Worse: Federal versus State Control of Quarantine, 67 Emory L.J. 491, 496–97 (2018).
[10] Price, supra note 8, at 383.
[11] See, e.g., Gibbons v. Ogden
, 22 U.S. 1, 203 (1824) (observing how inspection laws "form a portion of that immense mass of legislation which embraces everything 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 . . . are component parts of this mass").[12] Jacobson v. Commonwealth of Massachusetts
, 197 U.S. 11, 13 (1905)[13] Id. at 27–28.
[14] Hickox v. Christie
, 205 F. Supp. 3d 579, 590 (D.N.J. 2016) (citing Morgan's La. & T.R. & S.S. v. Bd. of Health of State of La., 118 U.S. 455, 464–65 (1886)).[15] See Jaikumar, supra note 7, at 690–93.
[16] Hickox, 205 F. Supp. 3d at 590 (citing 42 U.S.C. § 264).
[17] Price, supra note 8, at 420.
[18] 42 C.F.R. Parts 70 and 71.
[19] Hickox, 205 F. Supp. 3d at 590–91.
[20] Price, supra note 8, at 421.
[21] Control of Communicable Diseases, 82 Fed. Reg. 6890, 6963.
[22] See City of Costa Mesa v. United States
, No. 820CV00368JLSJDE, Docket No. 47 (C.D. Cal. Feb. 21, 2020); City of San Antonio v. United States of America, 20-CV-255, Docket No. 2 (Mar. 2, 2020) (denying temporary restraining order but stating that the "United States Government is, in effect, washing its own hands further of this quarantine").[23] See City of Costa, No. 820CV00368JLSJDE, Docket No. 47 at 4–5.
[24] Id.
[25] Id. at 7 n.7.
[26] See, e.g., AIDS Healthcare Found. v. Los Angeles Cty. Dep't of Pub. Health
, 197 Cal. App. 4th 693, 702 (2011) (observing that "the local health officer has a mandatory duty to take measures to prevent the spread of disease, but he or she has the discretion to determine the appropriate measures to be taken in a given case")[27] See, e.g., Colleen Shalby, et al, California coronavirus spread prompts emergency declarations: What you need to know, Los Angeles Times (Mar. 4, 2020), https://www.latimes.com/california/story/2020-03-04/california-coronavirus-spread-emergency-declarations (last visited Mar. 13, 2020).
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