In a previous blog post, I wrote that the President and the Federal government should impose a 21-day quarantine on persons entering the country from areas of Africa stricken with ebola. I now no longer think the Federal government has the power to do this under the Constitution. In fact, there is no Constitutional authority for the Federal government to restrict entry into the United States at all.
The Constitution is a charter of enumerated powers for the Federal Government. It lists what powers are expressly carved out of state sovereignty( http://en.wikipedia.org/wiki/Enumerated_powers ) If it does not list a power as belonging to the Federal government, then such power is reserved for the states. (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” http://en.wikipedia.org/wiki/Tenth_Amendment_to_the_United_States_Constitution)
Article I, Section 8 lays out Congress’ powers, and it says nothing about quarantine. In fact, it appears to give the Federal government no power to regulate entry into the country at all, except for the purposes of imposing duties (Art. I, Sec. 8-1) It also says Congress can make uniform laws of naturalization (Art. I, Sec. 8-4), but that is just how people become citizens -not whether they can enter the country. That means the Federal government must be relying on the “catch-all” of Art. I, Sec. 8-3, (“To regulate Commerce with foreign Nations…”), but I fail to see how people entering the country is “commerce” under original meaning. It now appears to me that Congress has no power to restrict entry by people into the country at all -assuming we are going to actually take the Constitution seriously, which I do.
I did some further research online, and discovered this article: http://www1.umn.edu/humanrts/immigrationlaw/chapter2.html It basically seems to say that the courts have found an “inherent power” in the Constitution that allows the Federal government to restrict entry into the country. From the stand-point of original meaning, this seems as problematic as the “penumbras and emanations” that supposedly give rise to a right to privacy in the Constitution (http://en.wikipedia.org/wiki/Griswold_v._Connecticut). I don’t see how Scalia, Thomas, Bork, or other originalist scholars could look at themselves in the mirror in the morning and claim some sort of unenumerated “inherent power” of the Federal government to restrict entry into the country.
Does this mean that quarantine cannot be imposed? I think it must occur at the state level. Each state government must establish its own quarantine laws, consistent with the Fourteenth Amendment’s due process clause.(http://en.wikipedia.org/wiki/Fourteenth_Amendment_to_the_United_States_Constitution) As long as some sort of hearing with objective rules of evidence and sufficient proof of a threat to others occurs, then this is probably sufficient. The additional implication of my new understanding of the Constitution, which I won’t get into too much here, is that each state would appear to have the power to set its own rules for entry into that state by immigrants from other countries. This might not be the result that originalists like Scalia would like, but it is what the Constitution seems to require under original meaning.
Month: October 2014
President Refuses to Impose 21-Day Quarantine on Persons Entering the Country From Africa Because He Wants to Sacrifice The Welfare of Americans
Today, I got confirmation from an article that the reason the President and other federal officials are not imposing a 21-day quarantine on people entering the country from ebola-stricken portions of Africa is due to a morality of self-sacrifice that I reject:
“‘It’s typical of what America does best,’ Obama said of the response team. “When others are in trouble, when disease or disaster strikes, Americans help.'”http://www.nbcnews.com/storyline/ebola-virus-outbreak/gods-work-obama-says-u-s-must-support-health-workers-n235776
The President and other federal officials believe it is my job to sacrifice my life for strangers.
I pursue my own rational self-interest, and I am only interested in the welfare of others to the extent that it promotes my own life. For instance, if I had a wife or children, I would be very interested in their welfare because it enhances my own life to have them around. I would take large risks in order to ensure their safety. The same goes for my friends. But, I am not going to willingly sit by and endanger my life, and the life of my friends and family for total strangers.
I recognize that the risk of a major ebola-outbreak in an advanced semi-capitalist economy is small given our superior medical care, but I don’t engage in self-sacrifice, even when the risk is small.
If You Were a Healthcare Worker at Presbyterian in Dallas Who Is Subject to the State’s Travel Restriction, You’re Rights Are Being Violated
I have decided to offer my services as an attorney to any of the health care workers from Presbyterian for free for what I regard as an unconstitutional violation of their liberty without due process of law. If anyone knows any of them, have them call or text message me at 214-336-7440 and I will go down to the Northern District of Texas Federal court today and try to get a temporary restraining order regarding the travel ban that has been imposed on them by the state. I think this is a Section 1983 civil rights case.
http://www.usatoday.com/story/news/nation/2014/10/17/texas-ebola-health-care-workers-travel-ban/17424465/
“I need wider powers!”
In her novel Atlas Shrugged, the socialist villains get together after their numerous attempts to control and plan the economy have resulted in wider and wider disasters. Rather than undoing what they have already done to cause the problem, the lead government bureaucrat, Wesley Mouch declares: “I need wider powers!” A similar spectacle could be seen today with respect to the Ebola outbreak that occurred in my home city of Dallas. It has been revealed that the second nurse from Presbyterian hospital to be infected by “patient zero” reported to the CDC that she had a slight fever. She was planning to fly by plane to Ohio, but she requested guidance from CDC on the matter. Their response was typical of a government bureaucracy:
“Vinson told the CDC her temperature was 99.5 Fahrenheit (37.5 Celsius). Since that was below the CDC’s temperature threshold of 100.4F (38C) ‘she was not told not to fly,’ the source said. The news was first reported by CNN.” http://www.reuters.com/article/2014/10/16/us-health-ebola-usa-idUSKCN0I40UE20141016
Note the double negative here. This is the kind of “weasel language” you would expect from a government bureaucrat trying to cover himself. Instead of saying: “We told her to fly,” which is what really happened, the CDC says: “she was not told not to fly,” in the hopes that they can deflect blame.
As a result this woman flew form Ohio to Dallas, while she was symptomatic. This is significant because ebola only becomes contagious when a person has begun to show symptoms, such as a fever. The CDC, whose alleged purpose is to protect the public from the spread of infectious disease told someone they knew to be symptomatic to board an airplane and fly, thereby potentially spreading the virus throughout the country.
The CDC’s response to the fact that they failed to advise this woman not to fly, which, from every indication, she would have voluntarily agreed to if they had simply asked her?:
“The Centers for Disease Control and Prevention is considering adding the names of health care workers being monitored for the Ebola virus to the government’s no-fly list…” http://www.foxnews.com/politics/2014/10/16/cdc-considers-adding-names-people-monitored-for-ebola-to-no-fly-list/
In other words, the very people that our nations hospitals are depending on to treat patients -doctors and nurses- are going to be placed on the same list as suspected terrorists and told that their right to travel is being restricted without due process of law. The issue of whether and when someone can be restricted in their liberty by virtue of having a dangerous communicable disease is a complicated issue. There may be times when it is justified -but it should never, under any circumstances, occur without that individual being given notice and a hearing in front of a judge. Yet, these people are apparently going to be arbitrarily placed on a no-fly list with no hearing at all.
The CDC’s response to their failure is to whine like the villain Wesley Mouch: “I need wider powers!”
This is the essential problem with all government. Government sets rules that are (ultimately) enforced by the barrel of a gun. The CDC bureaucrats only act if there is a rule telling them to act -which is as it should be. So, its no surprise that when this nurse was under the temperature threshold for their no-fly rule, no one at the CDC was going to “stick their neck out” and recommend that she not fly. A bureaucracy doesn’t reward incentive by its employees like a for-profit business -so there would only be “downside” if a CDC employee took initiative. Now the CDC response is to claim they need arbitrary power to put people on a no-fly list without due process of law. The real solution is to recognize that “government funded science” is a contradiction in terms, and end the CDC and income taxes so that private individuals can voluntarily work towards real solutions to the world’s problems.