Originally uploaded at SSRN

Abstract

The main argument of this Article is that the gravest threat to civil liberties during a public health emergency (PHE) stems from federal powers premised on post-9/11 national security justifications, not putative state powers under the Model State Emergency Health Powers Act (MSEHPA). While I concur with earlier assessments that the MSEHPA is seriously flawed and that PHEs should be construed as primarily federal issues, going forward, more critical attention needs to be focused on the federal role during PHEs as the initially alarming MSEHPA appears to be more of a paper tiger. First, as the responses to Hurricane Katrina and recent flu pandemic threats have demonstrated, the concept that the states’ police power will remain the locus of power during future PHEs is outdated. Second, the federal government possesses core security capabilities that enable surveillance and detention measures unmatched by any state. Third, and most importantly, the Obama Administration appears to be normalizing a national security legal framework introduced by the previous Bush Administration that grants federal actors expansive powers to curtail the liberties of individuals with correspondingly little accountability. This Article advocates for balanced public health emergency policies that both secure public safety and respect individual civil liberties. As President Obama indicated in his inauguration address, these goals are not mutually exclusive. Arbitrary and abusive measures against individual and group liberty are grave harms in and of themselves and are much more likely to occur in the context of unaccountability. In turn, reasonable fear of such measures during an emergency will undermine trust and voluntary compliance, which will only worsen the public health crisis. Part I of this Article describes conditions that will make greater federal involvement inevitable during future public health emergencies. Part II examines the lasting danger presented by the convergence of national security and public health emergency policies that occurred during the Bush Administration. Given this convergence, Part III analyzes the Obama Administration’s position that official actions implicating national security matters are beyond judicial review and suggests this stance is a cause for serious concern in the context of public health emergencies.