Emergency Health Powers Act: A Poison Pill

Published January 1, 2002

And so it came to pass, in the fall of 2001, that the federal government, having taken unto itself great new powers to fight terrorists, turned its attention to the rest of us.

Specifically, Congress has proposed an emergency health powers law that would give state governors wide-ranging new powers, including authority to compel mass vaccination; to ration medical care; to confiscate and operate private medical facilities; and to seize and destroy private property.

Whence cometh this potential new power grab? From the lawyers, the academics, and the “experts,” naturally.

The Center for Law and the Public’s Health at Johns Hopkins & Georgetown Universities published a proposed “Model State Emergency Health Powers Act.” The law would give the governor of a state the authority to declare an emergency in the face of “health threats,” and would endow state officials with blanket powers to control citizens and their property in order to control the threat of disease.

The Center for Law and the Public’s Health is funded by the federal government’s Centers for Disease Control and Prevention. Lawrence O. Gostin, an attorney, is director of the Center. The Center’s proposed law has been distributed to all 50 state governments.

Sweeping Powers

Under the proposal, a governor could declare a “state of public health emergency” without even consulting public health officials. Once the declaration was made, state officials would possess wide latitude to confiscate and destroy property as well as force immunization of the state’s population.

The fundamental premise of the proposed law, according to the October 23 draft, is that “the government’s foremost responsibility is to protect the health, safety, and well-being of its citizens.”

We most emphatically demur. This type of legislation is abhorrent: medically, morally, and constitutionally. According to our Declaration of Independence, “Governments are instituted among Men” to secure “certain unalienable Rights” and that “among these are Life, Liberty, and the pursuit of Happiness.” Securing a person’s rights—not protecting citizens—is the foremost government responsibility. Public safety is a precondition for the exercise of rights, not an end in itself.

Dumb Like a Fox

The proposed law also demonstrates an appalling ignorance (or maybe a shrewd awareness) of how governments actually operate. In Washington state, for example, the threshold for government declaration of “emergency” is very low.

Several years ago, in order to avoid the possibility of political accountability in a public vote, the governor declared financing of a sports stadium to be such an “emergency.” A good-government group, Citizens for Leaders with Ethics and Accountability Now! (CLEAN), sued. In CLEAN vs. State of Washington, the state supreme court “upheld the Legislature’s use of an emergency clause in the law passed to provide public financing for the new Mariners’ stadium in Seattle.”

The court concluded the governor’s job is to implement the laws written and defined by the legislature; the governor and legislature said there was an emergency, so there must be one, so the use of the emergency powers act was appropriate.

The emergency powers act proposed by the Center for Law and the Public’s Health is open to even broader interpretation. “Threat” is an even squishier word than “emergency.”

Admittedly, some of the provisions in the model law have 30- and 60-day limitations. But governments have been known to play endless “clocking” games with such limitations. There’s also nothing to keep the governor from declaring rolling threats, one after another, if he or she desires.

Health Care Takeover

One provision of the proposed law (Section 402) gives state officials the power to do what the federal government has been trying to do for half a century: take over medicine.

Compulsory vaccination is, of course, no new thing. Seizure of medical (and other) facilities in the face of “potential” emergencies is.

We doubt most public health or other government officials would run a hospital procured “by condemnation” under this law any better than the previous owners. In fact, we suspect the opposite. Seizure would cause enormous disruption in the routine activities that are also necessary to protect public health. New administrators and outside “experts,” probably ignorant of local conditions and needs, would trash the system.

We believe it unlikely that state government officials need the sorts of emergency powers contemplated by this proposal. Although we do recommend all states review their present laws to make sure, we trust that, in all but exceedingly rare circumstances, existing state powers are more than adequate to the task. If faced with unprecedented circumstances, we’re confident state governments will act with unprecedented swiftness.

In addition, government officials throughout the ages have bent the law in response to unprecedented circumstances. We’re not against a little creative interpretation, should a compelling need arise. What we are against is this “stockpiling” of excessive law and regulation.

In government, nothing’s quite so permanent as “temporary emergency measures.” Few governments will wait for an “emergency” to start before using their new powers, once on the books.

Michael Arnold Glueck MD writes extensively on medical, legal, disability, and mental health reform. Robert J. Cihak MD is the immediate past president of the Association of American Physicians and Surgeons (AAPS). Glueck and Cihak write a weekly column for WorldNetDaily and regular contributions for Health Care News.