Pandemic and Judge Alito

Yesterday, President Bush delivered an address at the National Institutes of Health describing the Administration's preparation for the flu pandemic that most people believe is only a matter of time before it happens. What is interesting is that the possibility of a flu pandemic and its impact on American life involves real questions of rights of citizens in a public health emergency. However, such questions, appropriate fodder for judicial nomination hearings, are unlikely to be presented to Judge Alito. Once again, the debate over a Supreme Court Justice will focus on events and law of the past rather than issues of the future. I have blogged on these concerns before, once on the wrong questions being asked about affirmative action and once on the future issues of abortion. Once again, people are clamoring about Judge Alito's views on issues from a retrospective rather than prospective viewpoint. But the flu pandemic scenario presents a fantastic opportunity to ask questions about the future, about the role of government in public health emergencies and civil liberty issues.

In his speech, President Bush noted three main goals of the Administration:

Our strategy is designed to meet three critical goals: First, we must detect outbreaks that occur anywhere in the world; second, we must protect the American people by stockpiling vaccines and antiviral drugs, and improve our ability to rapidly produce new vaccines against a pandemic strain; and, third, we must be ready to respond at the federal, state and local levels in the event that a pandemic reaches our shores.

The first and second goals are laudable and while they may present interesting questions of governmental priorities, they don't concern me as much.

It is the governmental response that presents the highest level of constitutional issues. Already there has been talk of possible quarantines enforced by the military. There will no doubt be restrictions on travel and decisions that have to be made regarding prioritization of care. All of these decisions and actions impact our rights and these kinds of questions should be presented to Judge Alito.

Of course, I don't expect Judge Alito to answer such questions in detail since these questions are, by their very nature, hypothetical and if the events come to pass, cases are likely to come before the Court. Having said that, Judge Alito can and perhaps should, discuss what he views as the powers and role of the federal government in this situation.

For example, normally flu epidemics are a public health issue. Is there a point in which a public health emergency can become a national security issue? If so, where is that line and what are the implications for such a transition in status? Can the President, for example, ban air travel? Can he prohibit travel all together? Can he use the military to enforce a quarantine?

Given that Americans enjoy a practically unlimited right to travel within our borders, the fundamental right of travel is a core freedom that may demand the Supreme Court apply strict scrutiny, that is the government must have a compelling reason for their action and the measures taken must be narrowly tailored to achieve that end. Thus, a quarantine, whereby people living in a given locale are prohibited from traveling, may be permissible to prevent the spread of a contagious killer virus, but would a general ban on travel be Constitutional?

Judge Alito may also be able to shed some light on his thoughts regarding the role of the military in such an emergency. Following Hurricane Katrina, President Bush floated an idea about the military having a direct role in natural disaster response. Issue of posse comitatus were raised in that context? Surely, such questions would exist in a public health pandemic as well. Is it permissible for the President to direct the military to enforce quarantines? It is possible for state governors to use the National Guard for such activities, but if the National Guard is nationalized by the President, they act more as the military and can they be used to enforce bans on travel.

The enforcement of quarantines presents another interesting question regarding the relationship between the federal and state governments. If the flu epidemic breaks out in say Atlanta, can the President order the national guard from South Carolina to Atlanta to help with the outbreak? Can he do so without permission from South Carolina's governor?

These are just some of the major and complicated questions regarding the limitation of rights and the role of the various levels of government in the case of a flu pandemic. These questions are appropriate to ask of a Supreme Court nominee. While specific answers are not likely, the mere asking of the question can bring about some real debate.

Cross posted at Watchblog

Linked at Cao's Blog, Jo's Cafe, The Political Teen, Don Surber, Oblogatory Anecdotes