Red Flags in Federal Quarantine: The Questionable Constitutionality of Federal Quarantine After NFIB v. Sebelius

By:  Arjun K. Jaikumar

 

The Public Health Service Act (PHSA), codified at 42 U.S.C. §§ 201–300, confers federal authority to institute medical quarantine and isolation measures in response to outbreaks of specific infectious diseases. Congress’s authority to pass the PHSA is derived from the Commerce Clause of the U.S. Constitution. Until recently, the constitutionality of the PHSA’s quarantine provisions had not been extensively analyzed or seriously questioned in the academic literature. However, this Note argues that recent Commerce Clause jurisprudence from the Supreme Court, most notably the Court’s 2012 decision in National Federation of Independent Business v. Sebelius, calls the constitutional validity of the PHSA’s quarantine provisions into question. Specifically, this Note argues, NFIB may preclude Congress’s authority to quarantine individuals not engaged in economic activity or interstate travel.

 

This Note analyzes the history of quarantine and isolation regulations in the United States and the Court’s fractured decision in NFIB, concluding that a reading of NFIB that removes all regulation of inactivity from Congress’s jurisdiction under the Commerce Clause would indeed endanger the PHSA’s quarantine provisions. However, this Note argues, federal quarantine may survive NFIB based on a narrower reading limiting NFIB’s holding to purchase mandates and the compulsion of economic activity; based on the “aggregation” loophole announced in United States v. Morrison; or based on the second prong of Commerce Clause analysis announced in United States v. Lopez, which confers exceptionally broad authority on Congress to protect the instrumentalities of interstate commerce.

 

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