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Jonathan Turley

Prescription for disaster

http://www.NewsAndOpinion.com -- AFTER a couple of centuries of successful democratic government, it would appear rather late to sell citizens on the superiority of one-man rule. However, according to a new model law drafted by the federal government for the states, the best cure for terrorism may be a small dose of tyranny.

Across the country, states from Illinois to California to Massachusetts are quietly considering the Model States Emergency Health Powers Act, an act that would create a new emergency plan for a health crisis, or the threat of a crisis. Before we all bunker down under this new emergency plan, we may want to read the fine print and consider our options.

The Model Act is a document that speaks with clinical detachment about such subjects as how to remove corpses, force large numbers of Americans into confinement, isolate entire cities, and suspend property and privacy rights. These are the realities of the dangers that we face and the Model Act is a sobering reminder that the threat of biological attack requires significant preparations.

What the Act does not mention is that governors in most states already have all of the authority contained in the Act. The change that the Model Act would bring 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.

Under the Act, a governor can unilaterally declare an emergency and take control of a state based on his own judgment that a crisis may occur in the future. The governor is allowed to trigger such authority when he perceives an "imminent threat of an illness or health condition" that poses "a substantial risk" to the public. This threat need not be caused by bioterrorism but can be based on the mere appearance of potentially fatal "infectious agents."

Of course, there is a huge range of "potentially" fatal infectious agents from ebola to seasonal flu strains. When one looks to the Act¹s critical definition of an "infectious disease," one finds that it can be any disease "caused by a living organism" and "may or may not be transmissible from person to person, animal to person, or insect to person."

The Model Act was created at the request of the Centers for Disease Control and Prevention with taxpayer dollars. 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. In reality, most of the Act¹s emergency measures are already within the power of governors under statutory or common law.

This country has already been through national epidemics and there was no fatal gap in emergency powers. In 1918-19, the Spanish Flu killed 40 million people worldwide, including over 600,000 Americans. Later influenza epidemics killed millions. Courts were highly deferential to emergency efforts, including use of quarantines and travel restrictions and the state governments took all of the actions that were deemed necessary to protect the public. However, unlike the Model Act, these actions were taken within the framework of our legislative and judicial systems that allowed for some oversight of emergency measures.

It is not authority but unchecked authority that is the dubious contribution of the Model Act. Sixty days can be an eternity when a governor is failing to take necessary actions or taking abusive action. A crisis does not magically give state officials the gift of judgment; it is more likely to cloud such judgment. In 1900, California officials used the state¹s quarantine authority primarily against the Chinese community during a cholera outbreak ­ abuses that were halted by a federal court. Other uses of ill-conceived quarantines in history have triggered riots or, in the case of New York¹s cholera quarantine in 1892, led to dozens of deaths before it was lifted.

The Model Act seems premised on the time-worn concept that rule by a single authoritarian figure in a crisis offers the greatest security for a population. Such unfettered authority is more likely to tie the future of an entire state to the uncertain performance of a single individual, who may prove brilliant or blundering at the most critical time of a crisis. We may land some policy wonk like New York¹s late Governor Nelson Rockefeller or Illinois¹ late Adlai Stevenson. However, we could also end up with an Earl Long who, as Louisiana¹s Governor, was fond of wearing a button that read "I¹m Not Crazy" ­ a comforting thought given his three commitments in the state mental hospital.

For years, experts have told politicians that we need an infrastructure to deal with possible bioterrorist attacks or epidemics, including still under-funded and under-staffed programs. One-man rule is not one of those needed measures. To the contrary, while one-man rule is routinely peddled to alarmed citizens, such absolute authority has really yielded neither more efficient nor more effective government. A state governor already possesses authority to dispatch troops, control travel, quarantine areas, and take other measures needed to protect society. A governor may take these actions under current laws with virtual, but not total, discretion.

The Model State Emergency Health Powers Act is a model law that is well-intentioned but poorly executed and drafted. If history can teach us anything, it is that our greatest injuries in a time of crisis are often self-inflicted. Before we take our legislative, judicial, and legal systems off-line in a crisis, we need to consider not just the dangers that we face but those that we may create in an emergency.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University Law School. Comment by clicking here.

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