Sharing, as a service to our readers…
Sharing, as a service to our readers…
Last Friday, a federal judge ruled that the state of Maine could not force a mandatory ebola quarantine on nurse, Kaci Hickox, who recently returned to the U.S. from Sierra Leone. According to CNN:
District Court Chief Judge Charles LaVerdiere ordered nurse Kaci Hickox, who recently returned to the United States after treating Ebola patients in Sierra Leone, to submit to “direct active monitoring,” coordinate travel with public health officials and immediately notify health authorities should symptoms appear. Another hearing is scheduled for Tuesday.
Hickox was held under quarantine in New Jersey after she returned to the U.S. because she had broken a fever. Since then, Maine, New York, Florida, Illinois, California, Georgia, Connecticut, Maryland, and Virginia have enacted some form of mandatory quarantine of some level or another. I’ve heard a lot of people, even within libertarian circles, arguing in favor of the mandatory quarantines. I think that these views are largely based on fear and misinformation. First, are these mandatory quarantines even constitutional? Let’s do a brief constitutional analysis.
By forcing a mandatory quarantine on someone, the state is taking away their liberty. Under the Fifth and Fourteenth Amendments, the state may not deprive one of “life, liberty, or property without due process of law.” Therefore, quarantines are a matter of substantive due process. (For a brief tutorial on substantive due process, click here). The courts will have to apply a strict scrutiny test because one’s liberty is a fundamental right. There are three prongs to a strict scrutiny analysis:
Does the government have a compelling interest in enforcing mandatory quarantine laws for people who exhibit symptoms of ebola? Absolutely! The government certainly has an interest in protecting its citizens from a deadly disease. There really isn’t much of a question here. The government can easily prove this prong of the strict scrutiny test. No problems yet.
Are mandatory quarantine laws narrowly tailored to meet the government’s interest of protecting citizens from deadly diseases? Maybe. This is where it becomes a bit tricky. Some states enacted laws which would require anyone who has had any contact with an ebola patient or anyone who recently visited areas of Africa known to have the ebola virus to be quarantined for at least 21 days, despite not showing any symptoms of the virus. This is clearly not narrowly tailored to protect the public from this deadly disease. Other states require the quarantine only if there has been a known exposure to ebola such as splashing bodily fluids or a needle stick. This is much more narrowly tailored to meet the government’s compelling interest. In the case of Ms. Hickox, her quarantine was not narrowly tailored to meet the government’s compelling interest because she was showing no actual symptoms of ebola. Therefore, I do not believe that her quarantine was constitutional. However, I could see cases where a quarantine would be constitutional, such as the case of Thomas Eric Duncan, the first person to die from this disease, and the staff who treated him. In those cases, where the patients showed symptoms of ebola, a 21-day quarantine would be justified.
Are the mandatory quarantine laws the least restrictive means possible to meet the government’s compelling interest? No! Not in these cases. In the case of Ms. Hickox, she was originally quarantined in a New Jersey hospital for 21 days. This is certainly too restrictive because she showed no real signs of the ebola virus other than having a fever. When she returned to Maine, officials wanted her to stay in her home for 21 days. While this is less restrictive than the hospital, it is still unconstitutional because of the restrictive nature of the order:
Late Thursday, the judge had ordered stricter limits on Hickox, requiring that she “not to be present in public places,” such as shopping centers or movie theaters, except to receive necessary health care. The temporary order permitted her to engage in “non-congregate public activities,” such as walking or jogging, but said she had to maintain a 3-foot distance from people. And it forbade her from leaving the municipality of Fort Kent without consulting local health authorities.
I think that Judge LaVerdiere got it right when he lifted the restrictions that she not be present in public. I do agree that she should submit to regular checkups and screenings, but only because I think that it is the responsible thing to do and Ms. Hickox seems to agree:
Standing with her boyfriend Ted Wilbur, outside their home in Maine, Hickox told reporters the decision was a “good compromise” and that she would continue to comply with direct active monitoring.
“I know that Ebola is a scary disease,” she said. “I have seen it face-to-face. I know we are nowhere near winning this battle. We’ll only win this battle as we continue this discussion, as we gain a better collective understanding about Ebola and public health, as we overcome the fear and, most importantly, as we end the outbreak that is still ongoing in West Africa today.”
Therefore, mandatory quarantines are likely to be unconstitutional if the patient tests negative for the virus or shows no symptoms of having the virus. However, mandatory quarantines are more likely to be constitutional for patients who have shown symptoms of the virus or tested positive.
This is where we need to separate a legitimate concern from fear-mongering. I’m no doctor, so I’ll let the experts from the Mayo clinic explain what ebola is, its symptoms, causes, and risk factors. According to the experts, ebola is spread through blood, bodily fluids, mostly in Africa, and not through the air. Should we be concerned? Absolutely. Should we be fearful of every person who comes in from Africa and institute travel bans for anyone seeking to come into the country from those areas? Absolutely not! in fact, the chances of you getting ebola are about 1 in 13.3 million, which is less than being killed in a plane crash (1 in 11 million), being killed by a lightning strike (1 in 9 million), or being killed in a car accident (1 in 9100). So if you decide to be fearful of ebola, I would recommend that you don’t fly anywhere, stop driving, and don’t go outside while it’s raining. You’re more likely to die from those than from ebola. For the rest of us, we will just continue to live our lives.
Last week, Florida became the laughing stock of the nation once again when the televised gubernatorial debate was postponed because of a fan. The bigger story may be that the event organizers, Florida Press Association and Leadership Florida, excluded Libertarian Party candidate, Adrian Wyllie, because he did not meet the minimum polling threshold of 15%. Despite an 0ptimus poll, which showed Wyllie trending 13%, which would have put him within the margin of error of the polling threshold, Wyllie was still excluded because the poll was not released prior to September 30. Wyllie filed suit in the Southern District of Florida to be included, but a federal judge sided with event organizers:
U.S. District Judge James I. Cohn said Wyllie did not meet the requirements for gaining access to the debate hosted by the Florida Press Association and Leadership Florida. Cohn said the private nonprofit debate sponsors did not change the access rules by increasing the polling threshold required for a qualified candidate, 15 percent.
Also, Cohn ruled, Wyllie’s exclusion was not a violation of his First or Fourteenth Amendment rights. Wyllie argued that, because the event is to be held at the publicly funded BrowardCollege, he had a free-speech right to be onstage with Gov. Rick Scott and Democrat Charlie Crist.
But Cohn said BrowardCollege was merely the location and that the event is a “nonpublic forum,” according to case law.
Cohn said the defendants “offer legitimate reasons” for excluding candidates like Wyllie and six others because the goal of the debate is “to provide a forum to inform Florida voters through the meaningful exchange of ideas among those gubernatorial candidates with a reasonable chance of winning the election.”
When surveyed, 100% of Americans think fair competition is good for the economy (give or take a few communists). So when is it a crime for a competitive business to even attempt to operate in the land of opportunity? When government has chosen the winner before the fight.
Witness: Uber in Alabama
CULLMAN, Ala. — If Auburn residents are driving for Uber, as company officials claim, they risk arrest like their counterparts in Tuscaloosa.
“Yes, we’re operating in Auburn,” spokesman Taylor Bennett wrote in an email to Watchdog.org on Thursday.
However, no Auburn residents have applied recently for a vehicle-for-hire business license, meaning if anyone is driving for Uber there they’re doing so illegally, City Manager Charlie Duggan told Watchdog.
This notion that you must be licensed and bonded by the city in order to do something as simple as drive a car and pick up passengers ALMOST sounds reasonable from a legal perspective (towns covering their butts to avoid liability, right?), but it’s a ploy in most towns that have this rule, because the process of getting licenses involves insane compliance to standards frequently only accessible to the government-favored cartel, such as:
requiring background checks on drivers, adequate liability insurance and a business license
The last feature is key since the state provides businesses licenses at its discretion. If you read on you find that noncompliance poses the risk of a $500 fine and up to six months in jail (!) – a bit harsh for participating in an enterprise which chooses to have different standards than those foisted on the industry by local and state authorities.
I’ll be talking about this issue in more depth another time, complete with a brief history of the taxi business in most American cities. For now, it suffices to say that Uber is a private sector competitor to the traditional public-private partnership that is the cab cartel. The company features innovations centered around the customers and their needs. Those innovations include an app for your mobile device that lets you reserve a ride, see where your car is currently located, and gives an ETA for its arrival, a way to pay for the ride in advance, and roomier, nicer vehicles, all at competitive prices. Urban cab services are stuck in the bygone era of street-side and phone arranged reservations, payment upon arrival, and aging cabs, complete with no ability to plan your trip on your terms. But the cities love this older model because they are able to obtain revenue from it, and their model is designed to protect both that revenue and the drivers (who are often unionized).
I’ll build on this in later posts, but I’ll leave with this parting thought: Uber and the cab cartels perfectly summarize the capacity of the private sector to service the customer and the capacity of big government to service itself and the worker at the expense of the customer and all of our rights to pursue happiness by building a better business.
Today’s smartphones contain more data about your life than any other device in human history. It could be argued that they even contain more usable information about your whereabouts and activities than your own brain. Naturally, post-Edward Snowden, protecting that information is a priority for a lot of people.
James Comey wants access to all of that information and he’s willing to let bad guys get at it too:
“Encryption threatens to lead all of us to a very dark place.”
“Encryption isn’t just a technical feature; it’s a marketing pitch … it’s the equivalent of a closet that can’t be opened. A safe that can’t be cracked. And my question is, at what cost?” Comey said. “Both companies [Apple and Google] are run by good people, responding to what they perceive is a market demand. But the place they are leading us is one we shouldn’t go to without careful thought and debate.”
“With Going Dark, those of us in law enforcement and public safety have a major fear of missing out—missing out on predators who exploit the most vulnerable among us … kids call this FOMO,” he said.
Comey kept referring to the “debate” and “national conversation” that needs to be had regarding widespread encryption. That conversation, in Comey’s mind, should stop and start with the idea that there must be a “front door” means for the FBI, NSA, and other law enforcement agencies to blast through encryption. In other words, companies should be “developing [law enforcement] intercept solutions during the design phase,” a proposition that, beyond making encryption useless, is potentially not even technically feasible.
“Congress might have to force this on companies,” he said. “Maybe they’ll take the hint and do it themselves.”