"Upon 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."
Jacobson v. Massachusetts, 197 U.S. 11 (1905)
INTRODUCTION
The World Health Organization (WHO) defines a public health emergency as "an occurrence or imminent threat of an illness or health condition, caused by bioterrorism, epidemic or pandemic disease, or a novel and highly fatal infectious agent or biological toxin, that poses a substantial risk of significant fatalities or incidents of permanent or long-term disability."1 Public health emergencies typically require government agencies at the local, state, and national level to set priorities for responding, ration scarce resources across disparate geographic regions, and triage the most pressing challenges across a limited network of first responders (all of which may involve coercive measures by state actors that implicate the Constitution's most fundamental protections for individual liberty and property rights). Public health emergency preparedness, in turn, depends on "the capability of the public health and health care systems, communities, and individuals, to prevent, protect against, quickly respond to, and recover from health emergencies, particularly those whose scale, timing, or unpredictability threatens to overwhelm routine capabilities."2
Although defining the concept of a "public health emergency" may be a relatively straightforward exercise, determining when an emergency actually exists has become infinitely more complicated, as the spectrum of public health challenges faced by modern society continues to evolve. A public health emergency can be a stand-alone event that requires only the specific legal authority necessary to handle the medical control aspects of that event, such as the traditional response to a community outbreak of viral encephalitis or influenza. On a broader level, a public health emergency may stem from a combination of events that requires close coordination by many professionals and disciplines, such as law enforcement, emergency management, labor, transportation, social services, and health care services. The recent public health emergency declarations in Massachusetts, Maryland, Alaska, Arizona, Florida, and Virginia due to the ongoing nationwide opioid-addiction epidemic provide other prime examples.3
This chapter is broken into four sections that discuss the roots and development of modern concepts of preparedness for public health emergencies. The first section introduces the historical context and structure of public health emergency law, while the second and third sections explore the challenging constitutional questions surrounding the protection of persons and management of property during a public health emergency. The conclusion describes developing challenges and considerations that will be significant for our responses to public health emergencies as we move further into the 21st century.
HISTORICAL CONTEXT OF U.S. PUBLIC HEALTH LAW
Government authority to address actual and potential public health emergencies has been recognized in North America since at least the mid-1600s. Public health interventions were primarily exercised prior to the American Revolution at the local level, with some of the earliest municipal ordinances enacted by Boston in 1647 and New York in 1663. Local boards of health were eventually organized, leading to more extensive state public health laws and regulations in the late 18 th and early 19th centuries. By the time of the framing of the Constitution, public health powers such as quarantine were well established.4
Although the catalysts for public health emergencies have varied over time from isolated outbreaks of communicable diseases to the threat of domestic terrorism such as the bombing at the federal office building in Oklahoma City, to natural disasters such as Hurricanes Katrina, Irma, and Harvey, or Superstorm Sandy, the underpinnings of public health law in the United States have remained relatively unchanged.5 Even today, the major source of government authority for public health emergency interventions is the state's police power. This historical function is rooted in the inherent authority of all sovereign governments to enact laws and promote regulations that safeguard the health, safety, welfare, and morals of their citizens. In the United States, for example, individual state governments have enacted a wide variety of laws for nuisance abatement, traffic safety, and community sanitation using their authority under the police power.
Under the framework of federalism in our constitutional system, the sovereign states granted certain powers to the federal government, including the power to regulate interstate commerce, provide for the national defense, and tax and spend for the public welfare.6 Under the Tenth Amendment, however, the states retained the powers that they did not grant to this new federal government.7 Accordingly, the police power has remained primarily a state (and local) authority. This means that, as a practical matter, states still have the broadest authority to take action in response to an actual or perceived public health emergency and can use their authority to protect the public welfare of their citizens during such events.
State authority under the police power is not exclusive, however, and the federal government still has broad powers to regulate, promote, and protect the public's health by virtue of the Commerce Clause, which grants it exclusive authority to regulate interstate and foreign commerce.8 The federal government has used this constitutional authority to require medical examinations of immigrants seeking entry into the United States, to quarantine infectious persons when they are about to move from one state to another, and to mandate environmental cleanup activities.9
The federal government also exercises significant influence over public health policy under its constitutional authority to tax and spend.10 Congress began to use this power in the 1960s for the enactment of a wide array of categorical grant programs to state and local governments to support childhood immunization programs, environmental protection efforts, sexually transmitted disease (STD) control, tuberculosis control, occupational health promotion, and injury prevention. Congress used the same tax-and-spend authority following the events of September 11, 2001, to reallocate federal resources in support of state and local government response capabilities to handle disease pandemics and terrorism threats and responses to natural disasters.11
An "All-Hazards" Approach to Public Health Emergency Response Planning
Although these overlapping and interlocking layers of public health authority provide important flexibility for state, local, and federal agencies to coordinate their responses to a public health emergency, the federalist system of shared responsibility also raises important organizational questions for emergency response planners. As the specific events that can give rise to a public health emergency have grown, the organizational structure and legal framework for responding has shifted from individualized response plans for standalone events to an "all-hazards" approach and orientation.12 Despite its name, the "all-hazards" approach toward emergency response planning does not mean that state and local governments must be prepared for each and every specific hazard that might be encountered. Rather, the foundational assumption for "all-hazards" response planning is that every public health emergency will create certain common challenges that must be addressed by government authorities, regardless of whether the precipitating event is a natural disaster, communicable disease outbreak, or act of domestic terrorism.13
In an "all-hazards" approach, government agencies will rely on the same powers and management procedures whether the source of the emergency is a natural disaster, an intentional event, or an infectious disease outbreak. As an example, all public health emergency response plans will necessarily include protocols for broadcast notifications and emergency warnings. Since it may be impossible to determine initially whether an anthrax case or a monkeypox outbreak is due to an intentional act of terrorism or a naturally emerging infection, as another example, the initial responses applying epidemiology, lab science, and disease control measures are essentially the same. Accordingly, "all-hazards" emergency response plans can provide a common framework for responding to a wide variety of disasters.14 The specific government authorities that may be incorporated into a particular emergency response plan, however, continue to raise difficult legal questions for planners and first responders.
Organization and Scope of Public Health Emergency Law
The discipline of public health, by definition, is focused on promoting and protecting the health of entire communities, as opposed to individual patients. Public health emergency laws must necessarily facilitate coordination and cooperation between local and state health departments, federal agencies, and public or private health care facilities during a public health emergency.15 Typically, state laws that provide for public health emergency powers allow certain designated officials to exercise a wide range of extraordinary legal authorities.16 These designated officials often have considerable discretion in determining when to exercise their legal authorities due to the broad definitions of "emergency" or "disaster" in the relevant statutes. Many state laws simply "refer to an occurrence or imminent threat of widespread or severe damage, injury, or loss of life or property resulting from a natural phenomenon or human act," whereas others "provide no definition" whatsoever.17
State...
