Is U.S. Ready for a Pandemic?
Although the likelihood of a large-scale outbreak of Ebola is almost immeasurably tiny, Americans have begun to ask: Who, really, is in charge of snuffing out a potential epidemic? The Centers for Disease Control? Texas Governor Rick Perry? The local alderman?
In the U.S., the proper role of government in public health is an extraordinarily vexed and complicated question. As a consequence, when a killer hemorrhagic fever shows up on our shores, the dead hand of the past practically guarantees that we will dither in crafting an effective response.
Here’s why. The Constitution says nothing about disease, much less quarantines and other draconian and potentially liberty-restricting measures that could halt the spread of an epidemic. This omission reflected the conventional wisdom that such powers should remain the exclusive province of the individual states, each of which had laws governing the matter.
In the wake of a yellow fever epidemic in 1793 that killed 5,000 people in Philadelphia, President John Adams pushed for an expansion of federal power over quarantine laws by citing the commerce clause of the Constitution. In his second annual address, for example, Adams encouraged Congress to contemplate “suitable regulations in aid of the health laws of the respective States” on the grounds that “contagious sickness may be communicated through the channels of commerce” -- and commerce was something only Congress could regulate.
But most legislators firmly believed that police powers governing public health remained exclusively in the hands of individual state governments. While Adams managed to get legislation passed that gave the federal government the authority to help states enforce quarantines (and only then if they requested assistance), the national government wasn't given any autonomous powers.
A little more than two decades later, Chief Justice John Marshall laid out an expansive interpretation of the commerce clause in Gibbons v. Ogden. Still, after making the case for broad national regard over commerce, he listed powers that would be “most advantageously exercised by the States themselves,” including “inspection laws, quarantine laws, health laws of every description.”
Despite the arrival of Asiatic cholera from abroad in 1832 and again in 1849, Congress showed no inclination to expand the federal government’s power. In the 1850s and 1860s, so-called “contagionists” (health officials who believed that disease could be spread by personal contact) proposed a national quarantine system at ports of entry and a federal administration commission that could enforce it.
Most controversial of all, according to medical historian Michael Les Benedict, it “authorized agents of the federal government -- probably military personnel -- to isolate infected districts within the United States without regard to state lines.”
Constitutional conservatives eviscerated the bill. When one supporter of the measure argued that the federal government should “use any power to stop the cholera,” including martial law, Republican Senator Henry B. Anthony shot back: “I would rather have the cholera than such a proposition as this.” Others concurred. Even as cholera had begun ravaging the country again, Republican Senator James Grimes declared “let us go back to the original condition of things, and allow the States to take care of themselves.”
The bill went down to defeat. Still, in the succeeding decades, legal scholar Arjun Jaikumar has detailed, Congress began expanding the disease-fighting powers of the federal government, creating the National Board of Health in 1879 and broadening quarantine powers. But many of these reforms were aimed at assisting state authorities, not supplanting them. Moreover, these measures were limited to specific diseases: cholera, smallpox and yellow fever.
While subsequent legislation gradually called for the states to cede authority over quarantine facilities to the federal government, the shift took decades. And when the influenza epidemic arrived on American shores in 1918, the response was utterly inadequate. The federal Public Health Service had 180 officers on hand. Worse, it initially did nothing, leaving the state health offices to their own devices. Without any guidance, most sat by while the pandemic gathered steam. As historian John Shortal has noted, by the time both sets of health officials realized the gravity of the situation, the flu was loose.
The virus behind the epidemic didn't discriminate, and killed many otherwise healthy people in their 20s and 30s. High fevers, diarrhea and dark spots on the cheeks -- indicating the lungs had filled with fluid -- were among the telltale signs. Its victims effectively died from a gradual, painful asphyxiation.
And the federal government? President Woodrow Wilson never made a single public comment on the outbreak, despite widespread panic. The PHS informed the nation that “the Bureau has no information on the nature of the disease.”
Congress did little, either. It appropriated $1 million for fighting the plague, but the PHS failed to spend all the funds.
By the time the pandemic ended a year later, it had claimed the lives of 50 million people worldwide, including 675,000 Americans. This tragedy was a direct consequence of the lack of a U.S. public health system to combat a plague of this magnitude.
Instead, authorities relied on a ineffectual patchwork of national and local institutions created out of a decades-long suspicion of entrusting the federal government with exclusive control over such matters.
The feds have more power today, thanks in part to the passage of the Public Health Service Act of 1944. It grants the government authority to act in the event of potential epidemics -- including, it’s worth noting, viral hemorrhagic fevers, a category that includes Ebola. But these powers have never been invoked to combat a genuine pandemic, and the mechanisms for translating them into action remain ill-defined. The tradition of letting the states handle such matters is alive and well.
Thankfully, Ebola is unlikely to spawn a domestic pandemic that would test the government's ability to respond. Next time, we may not be so lucky.
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