THE CONTAGION OF GOVERNMENTAL LEADERSHIP: A RENEWED CALL FOR INCREASED FEDERAL PRESENCE IN COMMUNICABLE DISEASE EMERGENCIES

Abstract

Contagion is most commonly defined as a “contagious disease” or “the transmission of a disease by direct or indirect contact.” However, the word contagion also describes phenomena of human behavior such as a “contagious influence . . . [, a] corrupting influence . . . [, or a]” “rapid communication of” an [emotional] influence.” Sometimes, the spread of communicable diseases produces such influences. In other words, contagion can create contagion. When fear and hysteria result from communicable disease emergencies, the American public looks to its local, state, and federal governments for guidance, support, and protection. As evidenced by recent events, however, the same fear and hysteria—contagion—that grips the general public during these emergencies, often grips elected government officials as well. Because the current state of communicable disease law leaves the roles of local, state, and federal officials unclear during these emergencies, the contagion of the general public often leads to the contagion of governmental leadership. This contagion of leadership could have dire consequences for the American public in the future, which can be avoided by effecting reform now. The potential for catastrophe due to poorly crafted legislation and uncertainty regarding the appropriate government actor warrants meaningful review of communicable disease law. Several episodes following the first confirmed case of Ebola in the United States during the 2014 West African Ebola outbreak demonstrate how easily communicable disease emergencies can lead to the contagion of governmental leadership. Texas, the state with the first diagnosed case of Ebola within the United States, did not have a communicable disease policy in place until after the first diagnosis, which exposed others both inside and outside its borders to the disease. When Texas wanted to respond to the emergency, its efforts were partially blocked by neighboring Louisiana. Louisiana’s response following the first domestic case of Ebola would prove to have little basis in scientific or medical knowledge, or even in logic. Louisiana was unwilling to help Texas; and, in a separate incident, it went as far as warning researchers who had traveled to West Africa to study the outbreak to stay out of the state or risk confinement against their will, regardless of whether or not they had ever had contact with an Ebola patient. However, the states are not the only governmental actors to blame; the federal government possesses significant power over communicable disease emergencies, yet it failed to use this power or act as a mediator among the states. The 2014 Ebola outbreak raised many important questions regarding which level of government is the appropriate leader in emergencies of national and international proportions. The 2015 Measles outbreak raised the same questions, as have more recent communicable disease emergencies. The Centers for Disease Control and Prevention (CDC) reported that in 2015, 189 people from twenty-four states and the District of Columbia were infected with measles. Most of the measles cases originated from a single amusement park in California. Due to the nature of national and international trade and travel today, the recent Ebola and Measles outbreaks demonstrate just how quickly disease can spread and how poorly states deal with emergencies of this magnitude. Currently, the federal government shares jurisdiction with the states over the regulation of communicable disease emergencies, but the federal government yields to the states as the first lines of defense. The problems presented by the current state of affairs and the inherent nature of communicable disease emergencies warrants a stronger role for the federal government where it acts proactively ahead of communicable disease emergencies rather than reactively after these crises occur. This Comment explores the interplay of federal and state law regarding communicable diseases in order to demonstrate the need to increase the federal presence in emergencies of this magnitude. Section II outlines communicable disease law and policy at both the state and federal levels, using Louisiana communicable disease law as an example. Next, Section III analyzes the problems presented by the concurrent jurisdiction during communicable disease emergencies and outlines the constitutional basis for federal reform. Finally, Section IV proposes a change in federal law that would vastly improve the country’s preparedness for and response to communicable disease emergencies.