Assignment 19

We are going to take another look at emergency powers that might be applied during the pandemic.

Readings

These build on materials from the chapters on emergency response and the use of the military for domestic emergencies, plus these additional readings:

Richards III, Edward P. “The United States smallpox bioterrorism preparedness plan: Rational response or Potemkin planning.” Wm. Mitchell L. Rev. 36 (2009): 5179.

While this was written about smallpox, it has a lot of relevance to the current outbreak.

Richards, Edward P. “The jurisprudence of prevention: the right of societal self-defense against dangerous individuals.” Hastings Const. LQ 16 (1988): 329.

This is an old piece, but still a good history of public health authority and the tension between the state’s authority to protect versus the state’s authority to punish.  This article was written in 1989 to refute the idea that traditional public health laws had been implicitly repealed by the Warren Court.  (This was an idea pushed by civil libertarians during the beginning of the AIDS epidemic.) The thesis is developed through an analysis of then-current United States Supreme Court decisions involving the control of dangerous persons, including criminal law decisions.  While the article does not endorse the use of public health law powers in the criminal law context, the Supreme Court’s willingness to do so clearly implies that it believes that the traditional public health law decisions are still good precedent.  Kansas v. Hendricks, 521 U.S. 346 (1997), decided well after the publication of this article, follows the rationale of the criminal law cases analyzed in the article and applies traditional public health principles to the detention of sexual predators. This prevention/punishment distinction comes up later as we read the materials on 4th/5th Amendment issues on searches and surveillance.

Recordings

The first is a podcast that I recorded with a professor from Emory on public health powers and the constitution:

The Constitution and the Coronavirus

The second is a podcast by Professor William Banks, a coauthor of our book, on emergency powers, including the military:

Emergency Powers and COVID-19 with William Banks