Could state governors order the collection of all data and records on citizens, ban firearms, take control of private property and quarantine entire cities? The answer is yes – if governors and state legislatures adopted a new “model” bill currently under consideration.
According to a summary of the “Model State Emergency Health Powers Act” by the legislative research arm of the Home School Legal Defense Association, a home-schooling rights organization, the proposed legislation could give governors the kind of absolute power during a health emergency once reserved only for kings, queens and dictators.
The version of the bill under consideration was drafted in October 2001, just a month after the Sept. 11 terrorist attacks, by The Center for Law and the Public’s Health at Georgetown and Johns Hopkins Universities, in collaboration with several other organizations. HSLDA, in a review of the bill, said it was “prepared pursuant to Healthy People 2010, a Department of Health and Human Services nationwide health-promotion agenda.”
“A large initiative, Healthy People has 28 goals, ranging from improving access to comprehensive health care services to reducing injuries and deaths due to unintentional injuries and violence,” the HSLDA analysis said. “These 28 goals give rise to over 400 objectives.”
The model bill’s preamble recalls the events of Sept. 11, focusing attention on a “need to protect the health and safety of citizens from epidemics and bioterrorism,” said the analysis.
Essentially, the measure grants “emergency powers to the state governors and public health authorities during a declared ‘state of public health emergency,'” the analysis said. Under the auspices of the bill, a “public health emergency” is defined as:
“an occurrence or imminent threat of an illness or health condition, caused by bioterrorism, epidemic or pandemic disease, or novel and highly fatal infectious agent or biological toxin, that poses a substantial risk of a significant number of human fatalities or incidents of permanent or long-term disability. Such illness or health condition includes, but is not limited to, an illness or health condition resulting from a national disaster.”
Authors of the measure say it was designed to facilitate the “early detection” of health emergencies, and it “requires that comprehensive plans be prepared in advance which would provide a coordinated response to the health emergency. …”
“In the event of a declared public health emergency, MSEHP grants the governor extraordinary powers,” HSLDA analysts said. “These powers include the collection of data and records, the control of property, the management of persons and access to communications.” Powers also include “such things as forced vaccination and treatment (Section 504), the tracking of individuals (Section 202), access to patient records (Section 506) and the prohibition of firearms (Section 402(c)). …”
Some provisions of the bill require judicial review, such as a governor’s order for a mandatory quarantine of areas. For that to happen, “a written court order must authorize the action,” analysts said, “unless delay would pose an immediate threat to the public.”
Overall, however, the measure “grants enormous power to the governor in the event of a public health emergency,” said HSLDA analysts.
“A ‘model’ act is not nearly as threatening as an act that has been introduced and passed or is moving through the process,” Tom Washburne, director of HSLDA’s legislative arm, the National Center for Home Education. “So I feel like there’s time to correct [the bill] and make it a lot better.”
As written, Washburne said, “the measures are pretty Draconian.” The worst part of the bill, he believes, is the fact that in most instances, one person – the governor – makes the decision to declare a health emergency.
“At the very least, there ought to be a better mechanism for figuring out if there is a public health emergency, and get more people engaged” in making that determination, he said.
The drafters of the bill disagree. Lawrence O. Gostin, director and principal investigator for the Center for Law and the Public’s Health at Georgetown and Johns-Hopkins, says there are no tools on the books for lawmakers and state chief executives to effectively deal with health emergencies, such as bioterrorism.
“Current public health laws are too highly antiquated and inadequate to ensure a strong and effective response to bioterrorism,” Gostin said. “Existing laws thwart public health officials in rapidly identifying and ameliorating health threats, thus jeopardizing the public’s safety.”
He adds that “the nation faces a danger to its health, safety, and security from biological agents that is unprecedented.” He said the act is needed to provide “governors and public health officials with the power to act decisively in the event of a bioterrorist attack or emerging infectious disease. …”
“Professor Gostin is to be commended for not only coordinating the quick and thorough drafting of this legislation, but also for providing an important public service,” said Judith Areen, dean of Georgetown University Law Center. “His expertise in the area of public-health law is well-known and respected.”
Gostin served as the chairman of President and Hillary Clinton’s Health Care Task Force group on Privacy and the Health Care Infrastructure in 1993, according to information published by Johns Hopkins.
While most Americans support the administration’s efforts to track down terrorists, clearly there is some concern that laws meant for honorable purposes today may be abused some time down the road, under different political circumstances.
“We should think always that every new law may be enforced by our worst enemies,” Jon B. Utley, the Robert A. Taft fellow in constitutional and international studies at the Ludwig von Mises Institute, told WND last October, after President Bush signed the USA Patriot Act of 2001.
The emergency health bill, Washburne added, “poses substantial threats to the liberty and privacy of families.
“As drafted, whether these threats are justified depends upon the opinion of only one person – the governor of a state,” he said. Legislatures that may consider the bill at some point should “work to improve the model act to minimize the chance that a governor could make a mistake,” he added.
For example, he said, state lawmakers should assess whether absolute power should be exercised by a governor for every health emergency. “At the very least, it should be noted that not all the powers granted apply to every threat,” Washburne said.
He also noted there appeared to be “little concern” for constitutional liberties.
“For example, there are many people who have religious beliefs that preclude them from taking or allowing their children to receive vaccinations,” he said.
Washburne said he didn’t know how fast the legislation was moving, but officials with Georgetown and Johns Hopkins say the bill is “on a fast track.”
“The draft has been delivered to” a host of organizations, said a Center for Law and the Public’s Health statement Oct. 30, 2001, including the Centers for Disease Control and the National Governor’s Association.
“The final product will then be ready for enactment by the state legislatures where procedures are in place for quick passage. The legislation is then ready for signature by governors and implementation by state public health authorities,” the statement said.
Jonathan Turley, the Shapiro Professor of Public Interest Law at George Washington University Law School, says the measure “is a model law that is well-intentioned but poorly executed and drafted.”
“After a couple of centuries of successful democratic government, it would appear rather late to sell citizens on the superiority of one-man rule,” Turley wrote in a Jan. 7 column. “However … the best cure for terrorism may be a small dose of tyranny.”
Turley said states are “quietly” considering adoption of the measure. But, he cautioned, “before we all bunker down under this new emergency plan, we may want to read the fine print and consider our options.”
The George Washington law professor said state governors already possess most of the powers contained within the act. What’s different, he said, “is buried in one of its implementing provisions. …
“For the first 60 days of a crisis, the governor of a state would hold unchecked and unfettered power. What is most astonishing is the triggering of this absolute authority is left entirely to the discretion of each governor,” Turley wrote.
Other analysts are also troubled by absolute power given to state governors.
“The state legislature relinquishes its power to stop overreaching by the governor until at least 60 days after his actions,” said an assessment of the measure published by Eagle Forum, a think tank that supports smaller government. “The bill wouldn’t allow the governor to be reversed just because his actions are unwarranted, oppressive or overreacting to the threat.”
“The Model Act was created at the request of the Centers for Disease Control and Prevention with taxpayer dollars,” Turley said. “With little media attention, there is a considerable danger that this act will be adopted with little scrutiny as an ‘impulse buy’ item for state legislators eager to take action against terrorism.”