Typhoid Mary, Tyranny, and Defense

by Gerard Emershaw

Canada recently had an Ebola scare. A man who had returned to the country from West Africa, which was experiencing a terrifying Ebola outbreak—fell ill in a Canadian hospital while exhibiting potential symptoms of Ebola. While it turned out to be a false alarm, this raises an interesting issue. With Ebola, 1,500 of the 2,200 recorded cases have been deadly. If individuals were thought to be infected with such a deadly and communicable disease, the CDC would no doubt act by quarantining those thought to be infected—taking away the liberty of these individuals despite the fact that no crime was committed.

Fear of such deadly outbreaks has long been a part of the American pop culture zeitgeist. Films such as Outbreak, Twelve Monkeys, and Contagion have tapped into this primal fear. The current “zombie apocalypse” craze represented by films such as 28 Days Later and World War Z as well as the popular AMC television series “The Walking Dead” often involves plots which are set in motion by contagious diseases.

The most famous case of an American being forcibly quarantined is that of Mary Mallon—a.k.a. “Typhoid Mary.” Mallon was an Irish immigrant who was born in Northern Ireland in 1869. She moved to the United States and eventually worked as a cook. Mallon was an asymptomatic carrier of typhoid. It is estimated that she infected as many as 49, three of whom died. In fairness, not only was Mallon not big on the hygiene, but she stubbornly refused to do even the most basic things that a cook ought to do—such as washing her hands. Mallon refused to give up her profession as cook or have her gall bladder—which was badly infected with typhoid salmonella—removed. As a result, in 1907, Mallon was arrested and detained against her will for three years in a clinic on North Brother Island on New York’s East River. Upon her release, she was given work as a laundress. However, under an assumed name, Mallon soon began working jobs as a cook, again infecting people. She was again arrested and detained on North Brother Island until she died in 1938,

Mallon was obviously a willful and spiteful woman with no regard for the safety of others. However, it is not difficult to imagine a case where a sympathetic person becomes the carrier of a contagious illness. Does the government have a right to take away such a disease carrier’s natural right to liberty? One could imagine a die hard libertarian like the fictional Ron Swanson of NBC’s “Parks and Recreation” saying: “A man is responsible for his own immune system. A lady is, too. We don’t need big government wiping our noses.”

The United States federal government claims the power to forcibly quarantine individuals with communicable diseases under the Commerce Clause of the Constitution. The specific law granting the President the power to allow the Center for Disease Control (CDC) powers of quarantine is 42 U.S.C. § 264—Regulations to control communicable diseases. According to this law, the President may specify in an Executive Order a communicable disease for which the government may apprehend, examine, and detain an individual. An individual may be detained if he or she has a communicable disease specified by the President and is either moving from state to state or in the process of doing so or is a probable source of infection for other individuals who are likely to move from state to state. Given how mobile Americans are in the modern age and given the various forms of transit, this essentially gives the President the power to have any person with a communicable disease detained “for such time and in such manner as may be reasonably necessary.”

Using the Commerce Clause as justification for this executive federal quarantine power is dubious. Having typhoid, Ebola, influenza, the zombie plague, or the monkey pox has nothing to do with regulated commerce. However, the federal government may have such a power based merely on its national defense function. As commander-in-chief of the armed forces, the President has the duty to protect the nation and its citizens. While Congress has the power to declare war, the idea of declaring war against typhoid, Ebola, influenza, the zombie plague, or the monkey pox is absurd. In the Prize Cases during the Civil War grants the President the power to resist an attack by a foreign power without consulting with Congress. In the modern technological age where an attack can be launched in minutes rather than months, this is essential in defending the Republic. In many ways a serious communicable illness can be seen as a threat akin to a military attack.

Even if there is enough of a parallel between a military attack and a communicable disease, this still does not necessarily give the government the right to detain an individual who has committed no crime. It seems odd to claim that a person’s Fifth Amendment right to due process can be satisfied by a physical examination by a doctor instead of an impartial court hearing or the like.

Another issue is that this may be giving the President too much power. History has shown what Presidents are willing to do in the name of national security. Franklin D. Roosevelt’s Executive Order to place Japanese Americans into internment camps without due process will forever be a scar on the nation and the office. There seems to be no mechanism that limits the President’s authority here. Where should the line be drawn? Ebola? A bad case of the flu? A mild cold? If an illness is in a “precommunicable stage,” then the President can only have an infected individual detained “if the disease would be likely to cause a public health emergency if transmitted to other individuals.” This is a bit vague, but it at least provides a coherent criterion. However, if the disease is at a “communicable stage,” then there is no limit. There is also no specific criterion for what “for such time and in such manner as may be reasonably necessary” precisely means. Determined to be “reasonably necessary” by whom? By the Surgeon General? By the physician involved with the individual’s case? By the President? By someone else? In principle it is possible that nearly any individual may have some virus or the like which is communicable at any given time. What would prevent a President from simply using this fact as an excuse to detain an individual for arbitrary and capricious reasons?

There does seem to be some justifiable point at which an infectious individual can be quarantined against his or her will when the infectious disease is serious enough. Even though the person is innocent, he or she can be detained in the way that a person who is acting violently and who has become a danger to others as a result of some force beyond his or her control—mental illness, brain tumor, brainwashing, hypnotism, etc.—can be detained. The last thing a nation with a $17 trillion debt needs is herds of zombies roaming the countryside in search of brains to eat. However, how can a line be drawn? There are some people with very compromised immune systems? Should the President base his or her decisions in this regard on the case of some “Bubble Boy” or on someone with an iron constitution and supercharged immune system? While perhaps this all seems like an absurd problem that is not genuine and that has no place outside some hypothetical discussion in a philosophy class or in a bong smoke filled room, given how recent Presidents have trampled on the Constitution, is there any reason to rule out abuse in this particular area?