Public Health Laws

Public health laws in the U.S. are primarily state laws with the exception of laws granting the U.S. President and Secretary of Health and Human Services the legal authority to use law enforcement to (1) prevent individuals with certain communicable diseases from entering the country; and (2) prevent the spread of certain communicable diseases between the states. State Governors and public health officials have the legal authority to use police powers to prevent the spread of communicable diseases within the state, including isolating and quarantining citizens.

By Executive Order (EO) of the President of the United States, federal isolation and quarantine of individuals is authorized to prevent transmission of:

• Cholera;
• Diphtheria;
• infectious tuberculosis;
• plague;
• smallpox;
• yellow fever;
• viral hemorrhagic fevers;
• SARS;
• influenza that can cause a pandemic

The President can revise this list by EO at any time.

Centers for Disease Control officials have the power to detain, medically examine and release individuals entering U.S. borders or traveling between states who are suspected of being infected with these communicable diseases, including pandemic influenza.

Click here to learn more about federal Quarantine Centers at U.S. Airports, ports and other locations near you.

State public health officials can exercise police powers to control the spread of infectious disease, including pandemic influenza, within state borders and can enforce isolation and quarantine or citizens. Federal and state health officials may work together to enforce isolation and quarantine of citizens suspected or confirmed to be infected with certain communicable infectious diseases, including pandemic influenza.

Isolation can be used to separate those who are infected and sick with a communicable disease from those who are healthy. Isolation restricts the movement of ill persons to help stop the spread of certain diseases. For example, hospitals use isolation for patients with infectious tuberculosis.

Quarantine can be used to separate and restrict the movement of well persons, who may have been exposed to a communicable disease, to see if they become ill. These people may have been exposed to an infectious disease and do not know it, or they may have the disease but do not show symptoms. Quarantine can also help limit the spread of communicable disease.

Click here to review the CDC’s Facts About Isolation and Quarantine
 

Federal Public Health Laws vs. State Public Health Laws

What was not defined in the U.S. Constitution as a federal activity, defaulted to the states. Public health was not defined by authors of the U.S. Constitution as a matter for federal government and so, historically, most public health laws - including mandatory vaccination laws - are not created by politicians you elect to the U.S. Congress and send to Washington, D.C. Public health laws concerning mandatory quarantine and vaccination can vary from state to state because those laws are created by politicians you elect to serve you in your state Capitol.

Federal Laws

Homeland Security Act of 2002 (PL 107-296)  and CRS Report for Congress (April 11, 2003)

Enacted by Congress in 2002 in response to the terrorist attacks of September 11, 2001, the Homeland Security Act established the Department of Homeland Security, consolidated the operations of 22 federal government agencies and was the largest re-organization of federal government operations since the creation of the Department of Defense after World War II. The Act increased the responsibilities and power of the Executive Branch of the federal government in an effort to streamline and consolidate national security functions to defend Americans against future terrorist attacks. The new Department also acts as a focal point in natural and manmade crises and emergency planning.

The Homeland Security Act was passed a year after Congress enacted the USA Patriot Act of 2001 that gave sweeping new powers to law enforcement and intelligence agencies and reduced oversight powers of U.S. courts in reviewing government surveillance of American citizens. The Homeland Security Act gives pharmaceutical companies and other corporations immunity from civil lawsuits for harm caused to citizens, limits citizen access to information that can be obtained under the Freedom of Information Act (FOIA) and allows government committees to meet in secret.

Project Bioshield Act of 2004 (PL 108-276)

Project Bioshield was enacted by Congress in 2004 in response to the events of September 11, 2001 and fears about potential use by terrorists of weaponized microorganisms or deadly pandemics. Project Bioshield legislation was designed to develop a broad strategy to defend America against bioterrorism and what Department of Defense officials described as “weapons of mass destruction.” The main purpose of Project BioShield was to accelerate the research, development, purchase, and availability of medical countermeasures against biological, chemical, radiological, and nuclear (CBRN) agents.

The Pandemic and All Hazards Preparedness Act of 2006 (PL 109-417)

The Pandemic and All Hazards Preparedness Act (PAHPA) legislation enacted by Congress in 2006 (also called Project Bioshield II) established a Biomedical Advanced Research and Development Authority (BARDA) within the U.S. Department of Health and Human Services (DHHS). This legislation had enabled government health officials to work closely with the pharmaceutical industry to provide an integrated, systematic approach to the development and purchase of vaccines, drugs, therapies and diagnostic tools for public health medical emergencies. BARDA manages Project Bioshield and the Public Health Emergency Medical Countermeasures Enterprise (PHEMCE).

State Laws

Model State Health Emergency Powers Acts

Since September 11, 2001, most state legislatures have approved the re-writing of state public health laws to conform with provisions outlined in the Model State Emergency Health Powers Act (MSEHPA).

The MSEHPA is model state legislation that was funded, developed and promoted by CDC
officials and others advocating granting expanded police powers to state public health officials to enforce quarantine and mandatory use of vaccines during public health emergencies declared by state Governors.

Under state public health emergency laws, public health and law enforcement may be authorized to:

• Take control of all roads leading into and out of your community, city or state;
• Enter homes and businesses without consent to investigate and decontaminate property;
• Appropriate property, including communications devices (computers, cell phones, fax machines, land line telephones), transportation vehicles, fuel, firearms, food, alcoholic beverages and other items and not be held liable if these actions result in destruction of personal property;
• Examine, detain, isolate, quarantine citizens and vaccinate or medicate citizens without informed consent and not be held liable if these actions result in injury or death of citizens.

However, the legal authority to enforce public health emergency laws does not mean that public health officials will choose to enforce them.

Winter 2002 NVIC Newsletter: Smallpox & Forced Vaccination: What Every American Needs To Know

MASSACHUSETTS PANDEMIC ACT (2009)

• Commonwealth of Massachusetts. An Act Relative to Pandemic and Disaster Preparation and Response in the Commonwealth (Senate No. 2028).

State public health laws that involve quarantine and vaccine use are implemented whenever your state Governor declares a public health emergency. The legal right of states to quarantine citizens to prevent the spread of certain communicable infectious diseases goes back to before the American Revolution. The legal authority for states to require Americans to use vaccines during non-emergencies was affirmed by the U.S. Supreme Court in 1905 (Jacobson vs. Massachusetts)  in a controversial decision involving smallpox vaccine. That high court decision made by judges at the turn of the 20th century has been criticized in recent decades for failing to acknowledge biodiversity and the fact that vaccines have the inherent ability to cause serious injury or death, with some citizens at greater risk than others and few ways for doctors and health officials to reliably identify those at high risk for suffering harm.

Current federal and state public health emergency laws give broad police powers to federal and state government officials to work together to detain and quarantine you and/or require you to use vaccines IF they elect to exercise that legal authority.

After September 11, 2001, Congress enacted the Homeland Security Act of 2002 that reorganized and gave expanded powers to the Executive Branch of the federal government, including creating the Department of Homeland Security. The Federal Emergency Mangagement Agency (FEMA)  was moved to the new Department of Homeland Security. The Department of Homeland Security, which has more than 200,000 employees and it the third largest department of the federal government, works closely with the Department of Health and Human Services (DHHS) to respond to declared public health emergencies.

The U.S. Congress passed the Project Bioshield Act of 2004 and the Pandemic and All Hazards Preparedness Act of 2006 to create and fund a partnership between private pharmaceutical companies and the Department of Health and Human Services to develop bioterrorism and pandemic influenza vaccines that could be used by Americans whenever the U.S. Secretary of Health declares a public health emergency. The National Biodefense Science Board and the Biomedical Advanced Research and Development Authority (BARDA) also were created under the DHHS Office for Preparedness and Response.

An Emergency Use Authorization (EUA) included in Bioshield legislation passed by Congress allows experimental vaccines and other pharmaceutical products to be fast tracked and given to citizens. Congress gave full liability protection to drug companies making experimental vaccines and drugs and to persons enforcing the use of or administering experimental vaccines and drugs that may injure or kill civilians during a declared public health emergency.

The National Vaccine Information Center opposed certain provisions in the Homeland Security Act of 2002  and Bioshield legislation that was passed by Congress and called for responsible congressional oversight on expanded authority granted to federal public health officials by Congress since 9-11.
 

Since September 11, 2001, most state legislatures have approved the re-writing of state public health laws to conform with provisions outlined in the Model State Emergency Health Powers Act (MSEHPA).

The Model State Health Emergency Powers Acts (MSEHPA) is model state legislation that was funded, developed and promoted by Centers for Disease Control officials and others advocating granting expanded police powers to state public health officials to enforce quarantine and mandatory use of vaccines during public health emergencies declared by state Governors.

The National Vaccine Information Center opposed granting state public health officials expanded police powers using the MSEHPA model that was advocated by state and federal health officials following 9-11.

Since September 11, 2001, most state legislatures have approved the re-writing of state public health laws to conform with provisions outlined in the Model State Emergency Health Powers Act (MSEHPA).

The MSEHPA is model state legislation that was funded, developed and promoted by CDC
officials and others advocating granting expanded police powers to state public health officials to enforce quarantine and mandatory use of vaccines during public health emergencies declared by state Governors.

Under state public health emergency laws, public health and law enforcement may be authorized to:

• Take control of all roads leading into and out of your community, city or state;

• Enter homes and businesses without consent to investigate and decontaminate property;

• Appropriate property, including communications devices (computers, cell phones, fax machines, land line telephones), transportation vehicles, fuel, firearms, food, alcoholic beverages and other items and not be held liable if these actions result in destruction of personal property;

•  Examine, detain, isolate, quarantine citizens and vaccinate or medicate citizens without informed consent and not be held liable if these actions result in injury or death of citizens.

However, the legal authority to enforce public health emergency laws does not mean that public health officials will choose to enforce them.
 

The U.S. Public Health Service (USPHS) is one of seven uniformed services of the U.S. government. Five of these are armed services (Army, Navy, Air Force, Marine Corps and Coast Guard) and two are unarmed uniformed services: Public Health Service and Oceanic and Atmospheric Administration Commissioned Corps.

The armed forces of the Army, Navy, Air Force and Marine Corps operate under the Department of Defense and the authority of the U.S. President. Since passage of the Posse Comitatus Act of 1878,
federal armed forces have traditionally been restricted from being used to enforce civilian law within U.S. territories. However, the armed forces of the U.S. Coast Guard are exempt from the Posse Comitatus Act.

In 2003, the U.S. Coast Guard was moved from the Department of Transportation to the Department of Homeland Security. During times of peace, the Coast Guard now reports directly to the Secretary of Homeland Security and, during times of war, the Coast Guard operates under the Department of the Navy. The armed forces of the Coast Guard can be used to enforce “applicable U.S. laws”  or any other law enforcement duty directed by the Director of Homeland Security, including enforcing public health emergency laws.

Under the U.S. Constitution and historically, the National Guard has been a part-time law enforcement militia under the control of the Governors of each state. During peacetime, National Guard units can be called upon by Governors to respond to emergencies which occur within state borders. During times of war, the U.S. President can deploy state-based National Guard troops to fight in a war, as has been done during recent wars in Iraq and Afghanistan.

Although the Posse Comitatus Act of 1978 restricts use of U.S. troops on American soil by the Executive Branch of the federal government for civilian law enforcement purposes, the Insurrection Act of 1807 allows one exception: the President can use armed U.S. military troops such as the Coast Guard or National Guard to put down rebellions or enforce constitutional rights if state authorities cannot do it.

In the 2007 Defense Authorization Bill, over the objections from all 50 state Governors, the U.S. Congress modified the Insurrection Act of 1807 to allow the President to federalize National Guard troops and use them in the states to respond to a “natural disaster, epidemic or other serious public health emergency, terrorist attack or incident” when the President determines that “authorities of the state or possession are incapable of maintaining public order.”
 

The Department of Defense, which works with the Departments of Homeland Security and Health and Human Services, can be called on by the U.S. President to assist in responding to a declared public health emergency, including an outbreak of pandemic influenza.
 

The local police in cities, counties and states could be called upon by public health authorities and the Governors to assist National Guard troops in enforcing quarantine or maintaining public order and distributing pandemic influenza vaccines and other countermeasures during an influenza pandemic.

The role that local police could play in pandemic influenza response measures will vary from state to state depending upon the public health emergency laws in each state.