The vast majority of states currently are considering a piece of model legislation that critics charge could turn out to be a major threat to civil liberties.
According to the American Legislative Exchange Council, a Washington, D.C.-based small-government advocacy group, 34 states have begun considering the “Model State Emergency Health Powers Act,” a bill that critics contend gives state governors unprecedented authority in the event of a terrorist attack or other threat to the public health.
As reported by WorldNetDaily Jan. 10, the bill, if adopted as written, grants governors the power to order the collection of all data and records on citizens, ban firearms, take control of private property and quarantine entire cities.
An initial version of the bill 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, including the Centers for Disease Control and Prevention in Atlanta, Ga.
But as word – and criticism – of the measure spread, its authors released a second draft Dec. 21, though ALEC says much of the original intent remained unchanged.
“While some of these changes reflect the concerns shared by groups interested in protecting and promoting civil liberties, other changes were merely cosmetic, inexplicable or altogether nonexistent,” said a policy analysis paper issued by ALEC, which opposes the model bill.
“Moreover, the release of a revised draft does not mask the original intent of the authors, nor does it prevent states that have already introduced the original draft from considering the original provisions,” the group said.
Jennifer King, the director of the Health and Human Services task force for ALEC, said that although “we’re not breathing easy yet,” most states so far have chosen to “water down” the model bill.
She told WorldNetDaily that South Dakota is the first and only state thus far to pass the measure, but it, too, “was a fairly watered-down version.”
“It doesn’t have all the offensive quarantine or ration language in it that the CDC model had,” she said.
But Minnesota “is very close to passing the closest version of the bill that we have seen,” she said, though “it’s still been watered down considerably to require some studying of certain aspects.” Other states have been “active” in holding hearings regarding the bill.
Mississippi, by contrast, “has killed the bill outright” – the only state so far to do so, she said. And in other “positive trends,” at least two other states, Georgia and Oklahoma, “added in some language saying that if the governor declares the public health emergency, then the legislature has to come into session within 48 hours and vote it up or down,” said King.
“From our perspective, we found that to be quite positive,” she said. “We should see a really hard push [in many states] in the next few weeks.”
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,” according to one analysis. Since the terrorist attacks, federal officials have repeatedly warned that the threat of chemical, biological and even nuclear attack is “real.”
The Homeland Security Agency, under its director, Tom Ridge, has even issued a new color-coded warning system, to gauge the level of threat against the nation at any given time.
But critics say the level of control that could be assumed by state authorities is unprecedented.
An analysis by ALEC says the bill “strips individuals and families of their rights and liberties at the expense of government,” while representing “unnecessary and duplicative legislation given existing state natural-disaster statutes.”
The bill, as written, “provides a number of potential legal loopholes for trial lawyers to extort,” grants “overly sweeping rights to the government,” and “fails to consider individual state needs,” the group said.
Also, the measure “consolidates broad powers” to unelected public health officials while it “erects barriers to states’ ability to respond, slowing down response times.” It also utilizes “vague language” to “define key concepts, including when an emergency can be declared,” the ALEC analysis concluded.
According to the measure, 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.”
The bill’s authors have defended the measure, however, saying they believe it is a necessary tool to give state authorities the power they need to deal quickly with unconventional threats to the public safety.
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.”
And last fall, when the model bill was unveiled, Health and Human Services Secretary Tommy Thompson hailed it as “an important tool for state and local officials to respond to bioterrorism and other public health emergencies.”
However, some legal experts warn that even legislation that appears harmless or well-intended could be dangerous to civil liberties.
“We should think always that every new law may be enforced by our worst enemies,” 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.
“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.”
Others contend the entire bill is unnecessary because governors already retain the authority to declare emergencies should one arise. The model bill, however, would override some of the civil-liberties protections built into current state statutes.
About one-third of all state legislators are members of ALEC. It was founded in 1973 by a “small group of state legislators and conservative policy advocates … who share a common belief in limited government, free markets, federalism and individual liberty.”
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