If U.S. Citizens Pose a Risk to International Health, Can the Federal Government Prevent Them from Traveling Abroad?

1 Introduction

A popular television show discussed a policy idea wherein the fictional version of the State Department would require vaccination records before passports could be issued.^[1] The show inadvertently posed the question: What limits can the federal government impose on citizens attempting to leave the United States?^[2] This paper goes a step further in asking: If citizens are ill, can the federal government stop them from traveling abroad? In order to answer the question, a thorough understanding of local, state, federal, and international law is required.

The states have the most power over citizens with regard to restricting movement of ill citizens.^[3] The 10th Amendment of the Constitution delegates the “protection of public health and safety” to the police power of the states.^[4] The police powers of the states cover health, safety, and welfare within state borders.^[5] States, through their police powers, can limit public gatherings, impose curfews, and ration goods.^[6] In Gibbons v. Ogden, Chief Justice Marshall indicated those powers included quarantine and isolation.^[7]

Since Gibbons, the courts have deferred heavily to the state legislatures, presuming validity of state quarantine laws in the process.^[8] In Jacobson v. Massachusetts, the Court indicated the state could enact reasonable regulations to protect state citizens.^[9] There, during a smallpox outbreak in Boston, the state mandated vaccinations to protect the public health and safety.^[10] Jacobson sued for an infringement on his individual rights; however, the Court found that the law was for the common good and it trumped the right of the individual.^[11]

Another example of the state’s quarantine laws involves the case of Typhoid Mary.^[12] Mary Mallon was a cook in the U.S. after immigrating from Ireland in the late 1800s.^[13] Mary, following her typhoid diagnosis, was sentenced to isolation.^[14] After several lawsuits, she was released on the condition that she never again work in food preparation.^[15] Unfortunately, Mary was quite skilled as a cook and she quickly returned to work preparing food for wealthy families.^[16] Following several new typhoid cases, the court sentenced her to isolation, where she remained until her death.^[17] In this case, the state had a very strong interest in protecting the public health and safety—greater than the citizens individual right to freedom.^[18]

Since the 1907 Typhoid Mary case, the quarantine laws of the states have been revised.^[19] After the tragic events of September 11, 2001, most states adopted a version of the Model State Emergency Health Powers Act (MSEHPA).^[20] Many MSEHPA versions permit states to order the treatment, isolation, or quarantine of individuals located within a state when the illness is connected to a public health emergency.^[21] While the MSEHPA are only valid to the extent the jurisdictions have enacted them, the MSEPHA were promulgated “by the [Centers for Disease Control and Prevention] and the Center for Law and the Public’s Health in the aftermath of the 9/11 attacks.”^[22] The MSEPHA acts enable states to more quickly and more easily quarantine, or impose other restrictions on residents, in the event of a health crisis.^[23]

This article focuses primarily on the federal quarantine authority and relevant agencies.^[24] International Law and the World Health Organization are discussed briefly in Part II.^[25] Part III of this article focuses on federal quarantine authority.^[26] Part IV of this article details the development and authority of the most relevant agency to this discussion, the Centers for Disease Control and Prevention (CDC).^[27] In Part V, this article explains the historical applications of federal quarantine.^[28] Part VI answers the title question posed by this article by analyzing which agencies have the legal authority to restrict travel and what tools those agencies could use to prevent citizens from traveling abroad.^[29] Lastly, Part VII concludes the article and poses an additional query into the effects of asymptomatic carriers during this time of COVID-19.^[30]

2 International Law

International laws are the least restrictive of the laws in this analysis.^[31] By promulgating guidance, while impacting as little of the nation’s sovereignty as possible, international laws are not very rigid. The organization and law most relevant to this article are the World Health Organization (WHO) and the International Health Regulations (IHRs).

The U.N. is composed of six organs—the General Assembly, Security Council, Economic and Social Council, Trusteeship Council, International Court of Justice, and the Secretariat.^[32] Several agencies work within those organs.^[33] The WHO is part of the Economic and Social Council.^[34]

The WHO “act[s] as the directing and co-ordinating [sic] authority on international health work.”^[35] Within the WHO, several nations make up the World Health Assembly (WHA).^[36] The WHA is the primary administrator for the WHO, and is responsible for policies and budgets.^[37] IHRs “were adopted by the Health Assembly in 1969.”^[38] The 1969 regulations asked states to report outbreaks of the three illnesses (cholera, plague, and yellow fever).^[39] After SARS, states took efforts to better enhance, support, and strengthen national, regional, and international efforts.^[40] Those efforts led to the WHA resolution in May 2003 to revise the 1969 IHRs.^[41]

The 2005 version of the IHRs “were adopted by the 58th World Health Assembly on 23 May 2005. They entered into force on 15 June 2007.”^[42] The IHR 2005 regulations are concerned with states granting entry to travelers who pose an “imminent public health risk.”^[43]

Under the IHRs, the WHO has declared several public health emergencies of international concern.^[44] The first in 2009 for H1N1 influenza.^[45] In 2014, the WHO declared two public health emergencies of international concern, one for polio and the other for Ebola.^[46] Zika was named a public health emergency of international concern in 2016.^[47] Most recently in 2020, the WHO declared COVID-19 a public health emergency of international concern.^[48]

Though the 2005 IHRs do not address whether U.S. citizens can be prevented from leaving a nation, “the international context of foreign travel suggests that the relevant constitutional level of government to prevent persons with dangerous, contagious pathogens from traveling internationally from the United States is the federal government.”^[49] As a member of the WHO, and a state nation following the IHRs, the United States has a duty to report and notify WHO for certain specified diseases, “maintain public health measures and response capacity at designated airports,” and respond to public health risks and emergencies of international concern.^[50]

3 Federal Quarantine Authority

Unlike the very expansive quarantine powers of the states, and the very limited international regulations, the federal government falls in the middle.^[51] The U.S. Constitution grants the federal government specific powers with the remainder reserved to the states.^[52] Through the U.S. system of checks and balances, the executive branch—the President—has oversight of the nation’s public health policy.^[53] The legislative branch—Congress—sets the administrative parameters, policies, and rules through legislation.^[54] If the act or legislation extends too far, the judicial branch—the Supreme Court—should ensure the agency created by the act and the agency’s guiding provisions are constitutional.^[55] “Quarantine … gives rise to tensions between individual rights and broader community interests.”^[56] As such, the federal system of checks and balances safeguards individual rights and liberties, but it also delays the relevant agencies from responding quickly during health threats.^[57]

Federal quarantine oversight begins with interstate commerce.^[58] Biological agents do not recognize state borders and they can bring a nation to their heels—crippling the economy, causing panic, and severely impacting public health. Though the states are thought to have quarantine powers as part of their police powers, the federal government has firmly established the power to oversee interstate travel and commerce.^[59] As a result of the authority over interstate commerce, the federal government has oversight over the interstate transmission of disease as well.^[60] With that power, Congress passed the first Quarantine Act.^[61] Congress has amended the Quarantine Act several times, each time broadening the federal government’s control, but never preempting the states’ role in isolation and quarantine.^[62]

The Quarantine Act was replaced in 1944 when Congress passed the Public Health Service Act (PHSA).^[63] The Act is codified in 42 U.S.C. ch. 6A § 201 et seq.^[64] The Act was intended to clear up confusion from the 1893 Quarantine Act.^[65] The Act “explicitly conferred the authority … to isolate infected persons for the purpose of interstate rather than foreign quarantine.”^[66] Congress intended for the statute to be so broad as to include any disease designated quarantinable by the President of the United States.^[67]

The Department of Health and Human Services (HHS) was created by the PHSA.^[68] The Secretary is authorized “to promulgate and enforce regulations … necessary to prevent the introduction, transmission, or spread of communicable disease.”^[69] Within the PHSA, the legal authority for the spread of the communicable diseases is found within 42 U.S.C. Section 264(a).^[70] Paragraphs (c) and (d) are related to travelers, with (c) covering foreign arrivals to the U.S. and (d) covering domestic interstate travelers.^[71]

The HHS and its subagencies and divisions are primarily tasked with quarantine and isolation of individuals traveling amongst or entering into the United States.^[72] There are several other agencies tasked with federal isolation and quarantine; however, most of them are tasked with oversight of the importation and exportation of goods or animals.^[73] For example, the U.S. Department of Fish and Wildlife has federal quarantine authority over certain animals entering the country—bats are one example.^[74] During an influenza pandemic, the U.S. Department of Agriculture monitors livestock, poultry, and swine for spread of the disease and the U.S. Fish and Wildlife Service reports avian deaths to the CDC.^[75] However, with regard to ill individuals, the CDC is the lead agency.^[76]

4 Centers for Disease Control and Prevention

The CDC operates within the HHS.^[77] The HHS delegates the responsibility for federal quarantine of individuals at ports of entry to the CDC.^[78] The quarantine stations, located at nearly two dozen ports of entry, are run by the Division of Global Migration and Quarantine, a CDC division.^[79]

The “CDC is authorized to detain, medically examine, and release persons arriving into the United States and traveling between states who are suspected of carrying these communicable diseases.”^[80] According to paragraph (b) of the PHSA, the President must issue an executive order to add or remove diseases from the quarantinable list.^[81] Federal quarantine and isolation are currently authorized for several illnesses: cholera, diphtheria, tuberculosis, plague, smallpox, yellow fever, viral hemorrhagic fever, SARS, and influenza.^[82] Viral hemorrhagic fevers, which include Ebola and SARS, are the two most recent additions to the list.^[83]

Historically, the CDC has not ordered quarantine or isolation of many individuals.^[84] On average, the CDC issues one isolation order a year for travelers known to be infected with tuberculosis.^[85] In those cases, the CDC arranges, when needed, transport of the infected individuals to out of state hospitals and then passes their care to the local public health department.^[86]

5 Historical Uses of Federal Quarantine Power

6 In a Word, Yes

However, it is important that President Trump has not halted travel from the U.S. nor has the President, by executive order, named COVID-19 as one of the communicable diseases for which federal quarantine powers are authorized. By not designating it a quarantinable disease, the CDC is more limited in authority.^[173] With that said, the answer to the title question posed by this article—if U.S. citizens pose a risk to international health, can the federal government prevent them from traveling abroad?—is most likely yes, but it depends.

Prior to 2007, the CDC would not be able to stop an infected person from traveling internationally, only the state and local health departments would have had the authority.^[174] A tuberculosis patient, in fact, did just that.^[175] As a result, the PHSA was amended to allow for greater control over flights by two agencies: CDC and TSA.^[176] Following the public health emergency of international concern for Ebola, the regulations were amended yet again to grant the CDC additional authority during a public health emergency.^[177] As a result of those changes, the CDC is now in a position to stop a traveler under several different scenarios.

Prior to 2017, to federally quarantine or isolate an individual—unless the individual was ill with one of the diseases on the quarantine list—the President would first have to issue an executive order adding the disease to the list before the CDC would have the authority to act.^[178] Without the disease on the list, the CDC would be relegated to advising the local or state public health department in the state where the ill person was located.^[179]

In contrast, under the new regulations, if a U.S. citizen falls within the ill person definition, and is likely to cause a public health emergency as defined by the new regulations, the CDC would be allowed to detain the individual even if that communicable disease was not on the executive order quarantine list.^[180] The CDC would only be able to quarantine or isolate ill persons for 72 h without taking additional steps—including an assessment of the least restrictive means and medical exam.^[181] The CDC only needs a reasonable belief the individual was exposed to, and possibly harboring, a communicable disease.^[182]

With that said, while the PHSA is concerned primarily with foreign arrivals and interstate travel, it does not specifically address ill persons leaving the country.^[183] However, if the U.S. citizen were attempting to board an aircraft with no layovers in another state, the CDC could probably stop the citizen from leaving the country, so long as that citizen posed a public health emergency.

This expansive regulation would only be possible through a broad expansion of the interstate commerce clause. In United States v. Lopez and in Wickard v. Filburn, the Court found that the federal government has the authority to regulate wholly intrastate activities.^[184] In Lopez, the Court said the Commerce Clause broadly includes and regulates “the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat [to interstate commerce] may come only from intrastate activities.”^[185]

The 2017 regulations in 42 C.F.R. part 70.5, dealing with CDC travel permits, applies to “individuals traveling entirely intrastate and to conveyances that transport such individuals upon the rest of a State …” or in the event of “inadequate local control.”^[186] What would constitute an inadequate local control measure is unclear; however, in part 70.2 it states that if measures taken by health authorities are insufficient to prevent the spread of any of the quarantinable diseases, the Secretary may take measures to prevent spread as deemed reasonably necessary.^[187]

According to the new regulations, the CDC can even implement prevention measures at locations where individuals “gather to engage in interstate travel, even if such locations are traditionally only associated with intrastate travel.”^[188] Coupling that authority with 42 C.F.R. part 70.6, where apprehension is authorized if the individual is reasonably believed to be infected in a qualifying state or is a probable source of infection to others by moving from a state to state, the CDC could prevent travel from an individual who is infected and goes to an airport or port.^[189]

Adding to that, the broad definition of public health emergency, where the CDC has the ability to isolate or quarantine individuals to prevent the spread of “communicable disease events or occurrences with documented or significant potential for regional, national, or international spread,” the CDC would have the authority to stop a U.S. citizen from traveling abroad if the citizen was suffering from a quarantinable illness, or perhaps, even if the individual was only within the precommunicable stage of the illness.^[190]

With that said, implementing all of the required steps—timely enough to stop a person from boarding an aircraft—is still problematic for the CDC. Before the CDC would know of an individual’s illness (or potential illness) the state and local public health officials would need to be aware of the individual’s health and report it to the CDC. At that point, the local and state officials would be in the best place to issue quarantine or isolation orders if they were worried about spread. However, as mentioned above, if the local health authorities did not stop the citizen from traveling, and the CDC was notified of the individual’s condition, the CDC could step in based on inadequate local control measures.

Other agencies—namely the U.S. Customs and Border Protection and the Transportation Security Administration—also have the ability to stop ill persons from traveling across the border. However, the CDC is the primary agency tasked with controlling the spread of infectious diseases.^[191]

7 Conclusion

The United States has a duty under the 2005 IHR regulations to monitor incoming travelers and to report outbreaks of diseases within the United States.^[192] However, the IHR does not mandate limits the U.S. may impose upon its own citizens attempting to leave the country.^[193]

Unlike most of the regulations for stopping travel at the borders that deal with prohibiting foreign entries, the CDC is authorized to quarantine or isolate individuals in the interest of public health if they pose a risk to state, national, or international health. The regulations extend CDC authority wholly intrastate—where people congregate to engage in travel or when the local or state authorities impose inadequate control measures. The CDC has the ability to stop citizens from traveling domestically or internationally. As such, it is very likely the CDC has the authority to stop a U.S. citizen, who is ill, from boarding an aircraft for an international flight.

COVID-19 presents specific new challenges to the rule of law and this discussion. The disease is thought to be spread from asymptomatic carriers. The CDC would not be able to rely on its authority over ill persons but would need to operate logistically over individuals in the precommunicable or qualifying stages of the illness. At these stages, the CDC’s authority is mostly limited. Additionally, previous measures of reporting temperatures, as used during Ebola, would be ineffective on asymptomatic individuals. With this global pandemic unfolding, how the federal government will handle travel to and from the U.S. in unprecedented times is unknown. It will be interesting to see how far the CDC extends its quarantine authority during the current pandemic.