Can the USA Legally Quarantine the Coronavirus LegalEagle’s Real Law Review




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- Thanks to Brilliant for keeping Legal Eagle in the air. Get 20% off your annual subscription by using the link in the description. The coronavirus is now officially killed more people than SARS, and it shows no sign of stopping. And it's not clear that the US government is actually prepared for this. The Department of Homeland Security is falsely saying that the mortality rate of COVID-19 is comparable to that of the flu. - Worldwide I believe it's under 2%. - What's the mortality rate for influenza, over the last say 10 years in America? - It's also right around that percentage as well. - Actually the flu is 20 times less deadly, and recently Vice President Mike Pence was put in charge of the government's response. Worse, there were reports of entire cities being quarantined in China and across the globe. But that's not America, right? Have you ever had a nightmare about being permanently confined to your house? Can you imagine one day waking up to find police officers and soldiers right outside your front door, refusing to let you leave? That could never happen in America, in response to a pandemic. Could it? (trumpet music) Hey Legal Eagles it's time to think like a lawyer because the world is facing a pandemic. This is gonna be a bit more speculative than most of the normal videos on this channel because we're going to explore whether the US could legally quarantine towns, cities and states, the way some other countries are. You might be surprised to learn that there is both US precedent, and law on this subject. Now as of the time of this video there are at least 80,000 confirmed cases of the coronavirus worldwide and almost 3000 deaths attributable to the virus, and the numbers are steadily climbing. The question is how do you stop the spread of a disease or a virus that is asymptomatic? This is the problem facing China and the rest of the world. Now coronavirus is the name for a large family of viruses that can cause mild or severe illnesses in humans and animals. There are seven different strains of coronavirus known to infect humans, and before this most recent outbreak only two of the coronaviruses were known to cause serious illness. You might recognize them MERS and SARS. So what the heck is this newest coronavirus? Well officially it's called 2019-nCoV, and it hasn't been extensively studied. Doctors don't know where it came from, most coronaviruses are transmitted to humans through an intermediate host. With SARS, the host was palm civets. For MERS, the host was identified as camels. The host for the 2019 coronavirus has not yet been identified, but according to researchers at Johns Hopkins, it may have come from bats. Doctors are still working to understand the 2019 coronavirus disease symptoms, course and severity. Traditional flu symptoms like runny nose, sore throat and vomiting have only been reported by about 2% of infected patients. Common symptoms seem to include shortness of breath, fever and cough. But the problem with the 2019 coronavirus is that people can spread the virus before they're even symptomatic. So far almost 80,000 cases of coronavirus have been reported in China with about 14% classified as severe. Now, the first known patient developed symptoms as early as December, although China alerted the World Health Organization by the end of 2019, China didn't act according to lockdown the city of Wuhan until January 23. At first, every patient's blood test had to be transmitted to Beijing, which slowed diagnosis and analysis, and the hospitals quickly became overwhelmed and overcrowded. It appears the Chinese government didn't want people to panic, but withholding information is rarely a good idea in situations like these. Chinese physician Li Wenliang and his fellow doctors raced to warn the public of the new coronavirus in 2019, but the Chinese government immediately threatened Dr. Wenliang for spreading false rumors. Dr. Wenliang has now died from the very virus he was working to contain. This situation has caused some people to draw analogies between the way that the Chinese are responding to the coronavirus outbreak, to the way that the Soviet Union responded to Chernobyl. When the Soviet nuclear reactor broke down triggering explosions, fires and radioactive smoke. The Soviet government denied the severity of the accident, was slow to release information to the public and generally screwed up the entire situation into a historic tragedy. So before we talk about the legality of isolation and quarantines in the United States, let's actually talk about what that entails. Societies, traditionally have dealt with pandemics by isolating people so that they can prevent the spread of contagious disease to other people. Isolation means separating people who have a contagious disease from people who do not. Quarantine takes the isolation one step further. Quarantine separates out people with a contagious disease and restricts the movement of people who have been exposed to contagious diseases, to see if they get sick. In either case, the goal is to stop person-to-person transmission of a disease. So what gives the government the right to quarantine in the first place? Isolation and quarantine are not just medical terms. The government has generally speaking, what's called police power to sometimes in an emergency legally isolate and quarantine patients. Police power in this context means that the government has a right to enforce laws, protect public welfare health and safety. If we're talking about the federal government then many legal scholars believe that police power is implied in the Commerce Clause to the Constitution. And in fact, by the time that the constitution was drafted, the US had already used quarantine powers to deal with several public health crises. In the modern era the federal law governing isolation and quarantine is found in Section 361 of the Public Health Service Act. This law authorizes the US Secretary of Health and Human Services to take measures to prevent the entry and spread of communicable diseases, into the United States and between the states. In fact, as is currently on the books, federal isolation and quarantine is currently authorized for a list of contagious diseases including cholera, diphtheria, infectious tuberculosis, plague, smallpox, yellow fever, viral hemorrhagic fevers, severe acute respiratory syndromes, and flu that can cause a pandemic. In order to keep this list flexible, the President has the power to revise this list through executive order. But if quarantine and isolation is necessary, how would the government carry out that order? Well, under federal law the Centers for Disease Control and Prevention or CDC, has the right to issue an isolation or a quarantine order. State and tribal governments may issue their own orders and ask federal authorities for help enforcing them. And if necessary, the US Customs and Border Patrol and US Coast Guard may be asked to enforce those orders. So the question is, is the US government using isolation and quarantine now? Well, you may be pleased or terrified to know that the US has actually now issued its first quarantine order in 50 years. Recently health officials have quarantined the 195 Americans who were evacuated from Wuhan. All 195 people must remain at the March Air Reserve Base in California during the incubation period of 14 days. 20 doctors and nurses at the base will monitor the passengers. If any of them starts to get sick they will be transferred to a hospital. And in fact patients in New York, Los Angeles and Chicago are being monitored for signs of the virus. And the Trump administration recently announced they will be suspending the entry of any foreign national who has traveled to China over the last two weeks, unless they are immediate family of a US citizen. In addition, any US citizen who has been in China's Hubei province within the last 14 days of their return will be subject to up to 14 days of mandatory quarantine to ensure that they are provided medical care and healthcare screening. According to the DHS order, air travelers without an nexus to China may also be routed to one of 11 airports if they discover mid-flight that someone on board has been to China in the last 14 days. This might be completely necessary but the history of isolation and quarantine in the United States raises a lot of questions. But this is America, damn it, and if there's one thing that Americans like to do, it's to sue people. So the question is, could you as an American sue the government over a quarantine order, and if you did what kind of rights do you have to challenge what happens to you during confinement? Well the answer to that question, depends on what kind of disease you have, whether the government is acting arbitrarily, and what era you live in. So let's talk about the legal history of isolation and quarantine in the United States. The first era of quarantine law runs from the colonial days to the late 19th century, at that time infectious diseases were a deadly serious threat to public health, so it's probably not surprising that there are a few cases challenging the government's broad authority to detain and restrain individuals who were infected or exposed to communicable diseases. In 1793, 5000 people died in Philadelphia from yellow fever alone. Philadelphia was the nation's capital at the time and federal officials evacuated and left the city to deal with the fallout. So many people died that the city lost a 10th of its population and the city government effectively collapsed. The quarantine order sent patients to a hospital in the country, but it wasn't very effective since yellow fever is spread through mosquitoes. The crisis ended finally when the weather turned cold and killed off the mosquitoes. Similarly, the New York typhus outbreak of 1892 started when certain immigrants arrived in Ellis Island. Many of the passengers were sick with typhus fever. By the time the illness developed most immigrants had already settled on the Lower East Side in New York City. The government rounded up those immigrants and quarantine them on North Brother Island. The incident provoked racist and anti-semitic hysteria in the newspapers. And then there's of course, the famous eponymous Typhoid Mary, the nickname for a cook, Mary Mallon. Mary was an Irish immigrant who carried the bacteria that causes typhus fever. Mallon was actually immune to the disease but that didn't stop the disease from spreading to others. And by working as a cook, Mary Mallon had spread a form of the salmonella disease to people all over the city. Police also sent her to North Brother Island to avoid communicating it to other people. So Typhoid Mary's term of confinement was supposed to be three years as long as she agreed never to work as a cook, however Mallon later resumed her work as a cook and started another outbreak in 1915. Authorities again tracked her down and sent her back to the island for 23 more years. During this period quarantine was seen as the ultimate public good. The Supreme Court said that involuntary quarantine was constitutional in a case that involved quarantine of passengers from eastern and southern Europe on the Britannia. American and Louisiana authorities stopped passengers from leaving the ship despite no evidence that anyone had a contagious disease. The court said that the government could hold the passengers indefinitely because immigrants were on board and of course immigrants carry diseases. Not really the courts finest moment of constitutional analysis. During this period courts reviewed a lot of quarantine cases but mostly they just checked to see if the government was following its own rules. It helps that the diseases that people were worried about were all highly communicable, like yellow fever, typhus and smallpox. Moreover, almost everyone living in the 18th and 19th centuries had lost someone to communicable disease, since there were few effective treatments. If a city like Philadelphia could lose 10% of its population very quickly, then communicable diseases were seen as threats analogous to war. Americans would have to wait until the second era of quarantine cases to challenge the validity of involuntary separation and quarantine. In 1900, California federal court became the first appeals court to reject a quarantine law on racial grounds. The city of San Francisco issued an order requiring all Chinese residents to be vaccinated against bubonic plague. The inoculations turned out to be tainted. But the city argued that bubonic plague was a serious problem and that Asians as a race were more likely to carry that disease. The California Court struck down that law because it violated the Equal Protection Clause. It discriminated against Asian immigrants and the city also couldn't back up its claims that the inoculation could stop the spread of the diseases it was targeting. Of course, that didn't stop the San Francisco health officials who tried it a second time. This time, claiming that nine people died from bubonic plague and that the only way to contain it was by quarantining people who lived in Asian neighborhoods. At the same time, the city gave exemptions to people who were not Asian but lived in those neighborhoods. Appropriately the angry federal district court struck down this quarantine law as well. The key takeaway from these cases is that if the government is reacting to communicable diseases, the threat had better be real. The government's action can't just be an excuse for discrimination. In the 20th century though the government still found ways to take its quarantine and isolation powers in new directions. The first target was prostitution. The idea was that prostitutes spread the sexually transmitted diseases and should be isolated and quarantined. The medical examinations for venereal diseases were more invasive of personal privacy. Police took advantage of this quarantine power and arrested and detained prostitutes for reasons unrelated to communicable diseases. And of course, there was stigma towards anyone who was quarantined for having a venereal disease. This was a monumental shift in how public health officials conceptualize power to stop contagious diseases. But this new relationship between public health and criminal law forced courts to give personal freedom, a more serious look. The California Courts were the first in the country to establish what the government needed to prove to detain someone who had a communicable disease. At a bare minimum the government had to establish some reasonable ground to believe that the targeted person had been exposed or infected with a contagious disease. Of course at the same time, people were facing real risks from pandemics. The influenza pandemic of 1917 and 1919, killed around 50 million people. It resulted in mass quarantine orders in bands of public gatherings, and unfortunately the isolation and quarantines did little to stop the spread of disease. Influenza was highly contagious with people becoming infected after exposure of just a few minutes. But given the danger and the high death rate, no serious legal challenges seem to have been brought during this time. People were really just trying to survive a world war and global pandemic at the same time. So the question is can you challenge a quarantine order today and could you stop a quarantine in the United States? Certainly modern medicine has progressed a long way since 1917. Well the answer is probably yes, you can challenge it depending on the circumstances. The Constitution says, "The privilege of the writ of habeas corpus "shall not be suspended, unless when in cases of rebellion "or invasion the public safety may require it." Generally this means that a person has the right to petition the court if they are illegally confined. This procedure is used most often to challenge a criminal conviction, but it also applies to quarantine cases. That being said, it's not often easy to win a habeas case. In 2014, Thomas Eric Duncan, the first man in America to be diagnosed with Ebola died after Dallas hospital failed to recognize the signs of the disease. They sent him home with a sinusitis diagnosis and his fiance Louise Troh, experienced the nightmare scenario I discussed at the beginning of the video. She woke up one day to a court order and armed guards posted outside of her apartment. Troh and her family were confined for 14 days and then sent into a Catholic Cottage for the remainder of a 21 day order. After Duncan's death, Troh's apartment was fumigated and many of her possessions were destroyed. Troh was left homeless after several landlords denied her rental applications. Troh didn't actually challenge the order in court but her case illustrates how restrictive of personal freedom quarantine and isolation can be, limiting a person's ability to travel, work and to find a place to live. And it's very difficult to overturn one of these orders, you have to show that the government is acting in an arbitrary and capricious manner. The Florida Supreme Court set the state standard for reasonableness of a state quarantine order in a 1956 case called Moore versus Draper. There the plaintiff had challenged his quarantine for tuberculosis. The Florida court said that quote, "The constitutional guarantees of life, liberty, "and property of which a person cannot be deprived "without due process of law, "do not limit the exercise of the police power "of the state to preserve the public health, "so long as that power is reasonably and fairly exercised "and not abused." Although federal courts are not bound by the Florida Supreme Court's decision, its statement of the law is regarded as the general standard for determining whether a person's due process rights were violated. The decision gives great weight to the government's determination that the public health, really is at stake. And to bring it back to the current pandemic that we're faced with, in our current scenario, this wouldn't be a hard standard for the government to meet. Coronavirus 2019 is still spreading. People are still dying and researchers don't have a firm handle on the disease yet. Though there are other issues about how far authorities can push their quarantine and isolation orders, generally a person in a civil confinement context like isolation or quarantine should be free from physical restraint. But if you were subject to isolation showing no symptoms of infection and you tried to leave, could authorities actually restrain you? According to the Supreme Court, the answer is probably yes, if you are quote, "a dangerous patient." Again, it's pretty easy for the state to prove that a person is dangerous if they are contagious. Authorities only needs to show that the reason for the restraint and confinement is not arbitrary, but that's not to say that there aren't cases where the government has acted unreasonably. For example in 2007, the ACLU challenged a dangerous patient determination on behalf of Robert Daniels, a quarantined tuberculosis patient who emigrated from Russia to Arizona. Daniels had been diagnosed with dangerous TB and when Daniels defined a court order requiring him to wear a face mask he refused, leading to his arrest and confinement in the Maricopa County Jail. Maricopa County Sheriff Joe Arpaio, you might remember that guy, kept Daniels in solitary confinement for nearly a year. After the ACLU lawsuit the county transferred Daniels to national Jewish hospital where physicians determined that he actually didn't have dangerous and contagious TB. After which Daniel's returned to Russia, Arpaio was later convicted of criminal contempt for ignoring a court order in a separate matter. Donald Trump then pardoned Arpaio and they all live happily ever after. - I stand by my partner Sheriff Joe-- - And as for whether the US government could affect a nation or statewide quarantine, well, the government has wide latitude to isolate and quarantine anyone who has been in the area of Wuhan over the last couple of months. But for better or worse, generally the isolation and quarantine orders can't last longer than the incubation period of the targeted disease. The CDC currently estimates that the incubation period is about 14 days for the 2019 coronavirus based on previous iterations, like MERS. Of course, the reason governments resort to quarantine is because the virus tends to spread exponentially. If you want to follow in the footsteps of heroic doctors like Dr. Wenliang, today's sponsor Brilliant can help you learn to think like a scientist and get a handle on practical math. 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