The Cdc's Communicable Disease Regulations: Striking the Balance between Public Health & Individual Rights †

By Misrahi, James J. | Emory Law Journal, January 1, 2018 | Go to article overview

The Cdc's Communicable Disease Regulations: Striking the Balance between Public Health & Individual Rights †


Misrahi, James J., Emory Law Journal


INTRODUCTION

On January 19, 2017, the U.S. Department of Health and Human Services (HHS) published a final rule to update regulations administered by the Centers for Disease Control and Prevention (CDC) relating to the control of communicable diseases at 42 C.F.R part 70 (interstate)1 and part 71 (foreign).2 Individuals, stakeholders, and other interested parties, reflecting a variety of viewpoints, submitted 15,800 public comments in response to the Notice of Proposed Rulemaking (NPRM) published on August 15, 2016.3 The final rule became effective on March 21, 2017.4 The final rule significantly enhances the CDC's previous regulations that were largely silent regarding procedures for federal isolation, quarantine, and conditional release, and thus lacked transparency regarding the rights and remedies of individuals subject to these actions. The newly revised communicable disease regulations are consistent with the CDC's governing statutory authority, principles of federalism, and constitutional protections afforded to individuals under the Fourth and Fifth Amendments to the U.S. Constitution. This Article provides an overview of the newly revised regulations and explains how these regulations are designed to protect the public's health while safeguarding the constitutional rights of individuals subject to federal public health actions.

I. A BRIEF HISTORY OF FEDERAL QUARANTINE

The federal government has a long history of acting to prevent the spread of communicable diseases. In 1796, Congress "enacted the first federal quarantine law in response to a yellow fever epidemic," which gave the President the authority to direct federal officials to "assist states in enforcing their own quarantine laws."5 In 1799, Congress repealed the 1796 Act and replaced it "with one establishing the first federal inspection system for maritime quarantines."6 In 1878, Congress again amended the Quarantine Act to assign responsibilities to the Marine Hospital Service, which was established in 1798 to provide for the health needs of merchant seamen, and placed it under the authority of the U.S. Department of the Treasury.7 The 1878 Quarantine Act, however, was extremely limited and provided that federal quarantine regulations could not conflict with those of state or local authorities.8 In 1893, Congress expanded the role of the Marine Hospital Service by enacting "An act granting additional quarantine powers and imposing additional duties upon the marine Hospital Service."9 While the 1893 Act did not preempt the role of the states, it nonetheless granted the Secretary of the Treasury the authority to issue additional rules and regulations to prevent the introduction of diseases, both foreign and interstate, when state and local ordinances were deemed insufficient.10 The Act also authorized direct federal enforcement of communicable disease regulations when state and municipal authorities refused to act.11

The federal government's current authority for quarantine and isolation is based on the Public Health Service Act (PHSA), which Congress enacted in 1944.12 The legislative history indicates, among other things, that the Act was intended to grant to the Surgeon General13 the basic authority to make regulations to prevent the spread of communicable diseases into the United States and between the states, "unencumbered by the confusing limitations found in the [1893] act."14 The 1944 Act continued the authority contained in the 1893 Act to "apprehend, detain, and examine persons entering the country from abroad," but added the authority to allow such persons to be released on condition, "for example, on condition that they report to public-health authorities for subsequent examination."15 The 1944 Act also explicitly conferred the authority, which Congress noted may have already existed under the 1893 Act, "to isolate infected persons for the purpose of interstate rather than foreign quarantine."16 The legislative history indicates that such authority "would be similar to the familiar quarantine power of State and local health officers. …

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