Legal authority for U.S. military quarantine powers and limitations

¶ … U.S. Military Institute Quarantine?

Law and Policy:

Can the U.S. Military Institute Quarantine Without Legal Issues?

Instituting a quarantine of large numbers of people within the United States would be complicated and difficult, but is it legal? More clearly, is it legal for the military to do such a thing without any kind of legislative or legal issue. If it is legal for the military to do this, there must be various requirements that have to be met in order to ensure that issues are handled properly. If it is not legal for the military to undertake such action, why not? And is there legislation being considered that would make this type of action legal? The question comes about in light of recent issues with the H1N1 "swine flu" scare, where many people thought the U.S. was going to be overtaken by this new strain of flu that would kill large numbers of people and there were discussions of states forcing large numbers of people into quarantine (Ahrcanum, 2009; U.S., 2005; Military, 2009). Of course, this did not happen - but that does not necessarily guarantee that something of that nature could not or would not take place in the future and quarantine would be necessary.

At that point, the U.S. population would need to know whether they had to follow specific directions given to them by various law enforcement agencies, in order to avoid confusion that could further add to the stress of a bad situation. Whether the problem was an epidemic, a man-made or natural disaster, or a terrorist event of some kind, the military must know what power it can and cannot exercise, and the American public has the right and the duty to know the same. That could help to make things much more orderly and allow people to save lives when a disaster does strike. While many people do not like to consider the possibility of a natural or man-made disaster in their lifetime, it is unrealistic to assume that the United States will "sail along" with no problems throughout the rest of history. Paranoia is not necessary, but awareness and preparedness are important.

History of Using the Military in Related Events

The military is rarely used for control of citizens within the borders of the United States. In order to find evidence of this taking place, one has to go back to the Reconstruction that followed the Civil War (Hendell, 2011). Troop withdrawal from specific states was the plan during that time. Additionally, military quarantine or other power was available during the desegregation crisis that hit the schools in 1958 (Hendell, 2011). While people were not quarantined during that time, there was a large display of military power and it was available to the president should he have needed to exercise it more strongly. One of the main goals of past legislation has been to ensure that the president cannot simply "pull rank" where the military is concerned, and start sending troops into a state because that state is doing something with which the president does not agree (Hendell, 2011). However, that does not mean that the president cannot and should not use the military when he needs to do so in order to make sure that order is kept.

In order to show a history of using the military for quarantines in the United States, there would have to be a history to show. That is simply not the case, because quarantines involving large segments of the population have simply (and fortunately) not been necessary. That is not to say that there have not been great shows of military power, but only that the military has not been used as a way to segregate and quarantine large numbers of people in the past. No disaster has been significant enough to warrant that kind of military power, and it is the hope that that continues in the future.

Laws And Legislation That Regulate or Inhibit Military Usage in the United States

The Posse Comitatus Act is a U.S. federal law that was passed after Reconstruction (Hendell, 2011; 18 U.S.C.; The Posse, 1997). It is designed to limit what government can do when it comes to using the military to enforce laws and keep order. The president can (generally) avoid falling under this law, because it is more closely designed for local governments and law enforcement agencies. Additionally, the law does not forbid the use of the military, but only states that use of them must be in line with the Constitution (Hendell, 2011). The president has the power to call upon the military to quarantine or to otherwise restore and keep order, and that could be used in the event that a natural disaster or some kind of pandemic was taking (or had taken) place. Specifically, the Act states that there are things that can and cannot be done where the military is concerned (Hendell, 2011; Lindorff, 1988). The National Guard is excluded from the Act, and troops that are used by the president under the Insurrection Act also do not fall under the Posse Comitatus Act (Hendell, 2011).

Additionally, if civilian law enforcement is unable to cope with threats such as those involving nuclear materials, the military can be used to help out without falling under the Act (Hendell, 2011). The desire of the Act is to make sure that the president or anyone else in a position of governmental or law enforcement power is not able to use the military for his or her bidding, but that the military is not bound by so many regulations that governmental agencies cannot request and receive help from it when there is a legitimate crisis which it must address. There is no way to ensure that the Acts that are in place are the best, because (fortunately) they have not needed to be used to any large degree. The real test of these regulations will only come when a full-scale disaster strikes.

Interagency Coordination to Enact Quarantine

One of the most important things about quarantine is whether individuals who are in different law enforcement and government agencies can work together to enact that quarantine (Hendell, 2011). Many agencies have trouble determining which agency is "in charge," because one agency often does not like to defer to another agency. That is an important consideration, but ultimately it should not matter. The coordination is very important, and there should be no argument about whether one agency should or should not be in charge. Federal outranks state, and state outranks local, in general. Once a person gets past the government level, law enforcement comes next - and law enforcement officials should defer to governmental officials and agencies (Hendell, 2011).

The most important issue when and if a quarantine is ever needed is making sure people are safe. Infighting and other disagreements about which agency is "running the show" must be put aside so that the quarantine can be properly enacted and enforced. Agencies that are prepared for this eventuality will be much more capable of working with other agencies, because they will have trained for the issue and will know what to expect. While many agencies do not have major disasters to face on a daily or even yearly basis, they do train for serious problems like terrorist events and manmade and natural disasters (Hendell, 2011). During that training, they are aware of where they "rank" and how they are to work with other agencies, which will allow them to function properly in the event of a disaster.

Plausibility/Conclusion

Is military quarantine of a segment of the U.S. population plausible? Is it realistic and legal? Yes, and no. There are times when the government and law enforcement could legally use the military to quarantine individuals, or even to stop people from entering towns, cities, states, or particular parts of the country in the event of a serious disaster. However, the legalities of that are very specific and it would not be something that could be undertaken lightly or easily. People would have to be very careful about how they went about ordering the quarantine and involving the military, or they could end up charged with misusing the power that had been granted them as members of government or of law enforcement. There are circumstances under which the quarantine would be legal, but the plausibility of the issue is something else entirely. Even with an order for quarantine, there would be people who would defy that order. It would not be possible for the military or other law enforcement to be everywhere all the time, and that could cause breaches.

Quarantining a family or even a neighborhood would be feasible and could realistically be done, but anything beyond that would be terribly hard to address. It is possible to block and monitor all roads leading out of the area, but what about someone leaving on foot? Especially in a very large area, getting out would be entirely possible. It would also certainly be attempted by people who did not believe that the government had the right to contain them where they were. While most people would respect the seriousness of the quarantine, there would be no realistic way to insist that no one could get in or out of the area unless that area was very small and heavily guarded. Fortunately, it is likely that a large scale kind of quarantine will never be necessary in the United States because of good security measures that will keep any disasters contained to s smaller area where fewer people will be affected.