Bioterrorism, Public Health and the Law 
Law 801: Health Care Law Seminar
Professor Vernellia R. Randall

Biological Terrorism and Legal Measures


Lesson Schedule
00: Intro to the Course
01: Intro to the Problem
02: Public Health System
03: Real Threat?
04: Public Health Law
05: Disease-Reporting
06: Quarantine
07: Model Act
08: Military Presence
09: Health Law Revisited

Emergency Authorities for Catastrophic Terrorism Situations

Barry Kellman, Biological terrorism: Legal Measures for Preventing Catastrope, 24 Harvard Journal of Law and Public Policy 417-484, 425-446 (Spring 2001)(191 Footnotes Omitted)

Identification of an imminent threat of biological terrorism, through intelligence sources or other means, should prompt the most rigorous law enforcement efforts to uncover its source and prevent the harm before it materializes. Moreover, in the immediate aftermath of a terrorist event, an equivalent standard of rigor should apply to efforts to apprehend the culprits. In these biological terrorism situations, an important question arises as to whether "emergency authorities" might be necessary or advantageous for law enforcement personnel or for public health officials. Are there legal inhibitions, restrictions, or prohibitions are applicable in normal circumstances that should be abandoned, mitigated, or suspended in the circumstances of biological terrorism? If so, what can Congress do to expand those authorities, in view of the fact that Congress cannot legalize unconstitutional activity?

Law enforcement officials at all levels will have to conduct investigations and implement measures that exceed the standards applicable to calmer situations, measures including quarantines, cordoning off of areas, vehicle searches, compulsory medical measures, and even sweep searches through areas believed to contain terrorists. These responsibilities can be undertaken most effectively and judiciously if all levels and branches of government prepare in advance for the unique, low-probability, high-magnitude threats that terrorism poses to national security. Advance preparation is also necessary to ensure that civil liberties are not undermined in the name of reacting to terrorism. Under unprecedented conditions of mass casualties, panic may overwhelm constitutional protections. When officials are unprepared to address the threat of a biological terrorist event, the risks of an overwrought response are significant.

1. Defining the Problem

The problem here is not about what measures can be taken in connection with a person suspected of being a terrorist. If there is reason to suspect an individual is a terrorist, then there is no serious legal problem with conducting an investigation. If a warrant can be obtained to conduct that investigation, it should be; if exigent circumstances prevent obtaining a warrant, the requirement is conditionally excused.(1) Depending on his citizenship, the suspected terrorist may have privacy rights, and no court will condone patently unnecessary or abusive law enforcement activity. But the issues pertaining to "emergency authorities" are not, strictly speaking, relevant to what can be done in regard to a suspected terrorist.

The issues pertaining to "emergency authorities" have to do with the privacy rights of everyone who is innocent but caught in the net of the investigation for the actual terrorist. The problem is that in investigating or in responding to terrorist activity, law enforcement officials may direct intrusive measures against a much broader group than the actual terrorist. It is the inability to distinguish the terrorist from all the other people in the area, or to distinguish the terrorist's locale from similar locales, that creates the potential for invasions of civil liberties. The following scenarios illustrate the point:

Intelligence strongly suggests the presence of biological weapons in a six-unit apartment building, and sensor equipment has detected emissions from that building. The difficulty is that there is no evidence as to the specific location of the biological weapons. To prevent the attack, the police will have to search each apartment. If persons in any of the five unrelated apartments deny access, the police will use force, thereby violating those persons' expectations of privacy. Yet until the police enter the apartments, they have no reason to know which apartment houses the terrorist.

Intelligence strongly suggests that a terrorist is of a certain ethnicity, but further identifying information is unavailable. To pursue the investigation, the police will have to stop everyone who matches that characteristic. Again, the problem is not with investigating the terrorist who is of that ethnicity; the problem is that the police will have to interrogate a large number of persons who have no connection with terrorist activity.

The problem that "emergency powers" must address, therefore, is not what can be done, but rather at whom may the authorities direct their attention. It is not a question of excessive measures but a question of application of appropriate measures to an overbroad group:

The question arises whether compulsion can be visited upon an individual simply by virtue of her inclusion in a class composed of some dangerous persons absent an individualized assessment of significant risk . . . . Perhaps the most revered principle under antidiscrimination law is the requirement to make individualized determinations of [a] person's qualifications or eligibility . . . . Given the unequivocal requirement for individualized assessments of risk, what recourse does the state have when, despite its best efforts, it is not able to reliably separate the perceived from the truly dangerous? This becomes a formidable dilemma when the state is capable of demonstrating that the class as a whole does pose a significant health threat and where the intervention proposed is both effective and non-draconian. . . . The requirement of individualized determinations is also inherent in the doctrine of overbreadth found in the Fourth Amendment and other constitutional jurisprudence.

2. Relevant Fourth Amendment Principles

The Fourth Amendment permits only "reasonable" searches.(2) The Supreme Court has held that the "determination of the standard of reasonableness applicable to a particular class of searches requires 'balanc [ing] the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion." '(3)

a. Applicable Doctrines

The "special needs" doctrine can justify a search, even in the absence of a warrant or probable cause.(4)

"[W]here a Fourth Amendment intrusion serves special government needs, beyond the normal need for law enforcement, it is necessary to balance the individual's privacy expectations against the Government's interests to determine whether it is impractical to require a warrant or some level of individualized suspicion in the particular context."(5) The Court considers three factors: (1) "the nature of the privacy interest upon which the search . . . at issue intrudes;"(6)

(2) "the character of the intrusion;"(7) and (3) "the nature and immediacy of the government's concern . . . and the efficacy of [the search] for meeting it."(8) Cases where courts use this alternative reasonableness formula often involve civil authorities and usually do not involve criminal penalties.(9)

A closely related concept is the "community caretaking" doctrine, based on the notion that police serve to ensure the safety and welfare of the citizenry at large. Certain emergencies require an immediate government response,(10) known as a community caretaking function.(11) When an officer is pursuing a community caretaking function not involving seizure of a person, no particularized and objective justification is required.(12) Traditional constitutional requirements--warrant, probable cause, etc.--do not apply to this form of police-citizen encounter. Government responses to such emergencies need not be judged by normal Fourth Amendment standards because they are not considered searches or seizures within the meaning of the Fourth Amendment.(13)

Courts use a three-prong test to determine whether police actions are justified as caretaking functions: (1) "there must exist an objectively reasonable basis for a belief in an immediate need for police assistance for the protection of life or substantial property interests;" (2) the officer's actions "must be motivated by an intent to aid," rather than to solve a crime; and (3) "police action must fall within the scope of the emergency."

Accordingly, four principles guide the remainder of this discussion. First, the breadth of discretion afforded to law enforcement authorities should be proportional to the magnitude and proximity of the risk. The more precise the definition of authority for law enforcement officials, and the more that rules of engagement distinguish real security concerns from police caprice, the broader the constitutionally permissible law enforcement authority. Second, counter-terrorism measures must not target persons or groups on the basis of their race or ethnicity or without probable cause. Third, law enforcement measures should be no more intrusive nor entail greater use of force than necessary under specific conditions. Measures likely to raise profound Fourth Amendment concerns, such as intrusion into private dwellings without probable cause, must be justified by an emergency that is both of great magnitude (i.e., the potential level of harm is great) and of great urgency (i.e., the necessity for immediate action outweighs the privacy interest). Measures justified by the necessity of a biological terrorism event may not be used as a pretext to gain unwarranted access for searches nor to conduct other law enforcement activity. Finally, any legal action taken against any individual in connection with counter-terrorism must measure up to the requirements of the Fifth(14) and Sixth Amendments.(15)

b. Relevant Inquiries

Where public health and security are at stake, the legal issue is whether searches directly promote a government interest that outweighs the individual's interest in avoiding the intrusion. This issue comprises six subsidiary questions.

First, how weighty or important is the government's interest? Searches may profoundly contribute to a government interest, but that government interest may be relatively insignificant. The more significant the government interest, the greater the scope given to the authority to conduct searches.

Second, how proximate is the relationship between the search and the government interest? If the search is only tangentially related to the interest, or if there are alternative ways of pursuing the interest, then the need for the search is manifestly reduced.

Third, how are persons or sites selected for searches, and does this selection methodology afford due process? An element of this inquiry is whether the method of selection insinuates wrongdoing that might inappropriately diminish the individual's reputation. If the searches are entirely random and apply to virtually everyone within a given sector (e.g., random vehicle checkpoints), the search scheme may be more tolerable. On the other hand, if individuals are selected due to their racial or ethnic groupings, or if a few individuals are targeted for especially demeaning activity, that program of searches is more subject to challenge.(16)

Fourth, where is the search carried out? A search of a vehicle or of an individual in a public place is far more tolerable than searches of homes because of the high expectation of privacy an individual has when in his home.(17)

Fifth, how intrusive is the search--how much force is used, and what is the scope of the search? Protective sweep searches, conducted without a warrant but only superficially and only to determine whether a more intrusive search can be undertaken safely, are more tolerable than extensive searches backed by force.(18) At the opposite extreme, strip searches or body cavity searches are the least tolerable.

Finally, what use is made of evidence obtained in the search? Fewer legal concerns apply to searches to effectuate a government interest that is health- related and non-punitive. Also, a search from which only evidence is used which directly relates to the asserted prosecutorial purpose may be more tolerable than a search for a purpose that is a mere pretext for a wide-ranging prosecutorial investigation. Thus, Fourth Amendment problems are diminished if the law enforcement personnel overlook evidence of wrongdoing that is unrelated to the asserted purpose of the search.

3. Legal Treatment of Searches and Related Measures

a. Cordoning Areas, Preventing Ingress or Egress

Courts have long held that officials may cordon off an area, establish a quarantine, or erect checkpoints for persons and/or vehicles leaving an area.(19) Both the need to prevent escape of suspected criminals(20) (or carriers of contagion(21)) and the individual's diminished right of privacy (on foot or in a vehicle) support this conclusion. Thus, there is no need to establish "emergency powers" to enable officials to cordon off areas.

b. Compulsory Vaccinations and Other Medical Treatment

Courts are likely to uphold compulsory medical interventions based upon a reasonable assessment of future harm. The courts have held that compulsory vaccinations during periods of contagious outbreaks do not violate due process.(22) Local, state, and federal government, therefore, may legally vaccinate those deemed at risk. A more difficult legal question is presented by quarantines of contagious patients. There have been cases of communicable diseases where courts have required persons to be actually infectious to be subject to isolation or quarantine.(23) These cases, however, are distinguishable because the individual was completely deprived of liberty based on scarce evidence of a current or imminent danger to public health. In cases where the state could demonstrate a "rational nexus" between a relatively non-intrusive intervention and the likely reduction in future harm to the public, there has been little judicial inclination to interfere with reasonable medical judgments.

Court precedents from HIV cases, however, weigh heavily in favor of protecting due process rights, thereby strengthening the "rational nexus" requirement. In Hill v. Evans,(24) an Alabama statute was held to violate equal protection because it allowed uninformed, non-consensual HIV testing of persons who seek medical services on the basis of a physician's judgment that the person is at high risk for HIV. The court found the absence of a consent requirement unconstitutional because the State "did not establish that the ability of physicians to test without informed consent individuals they consider to be high risk for the HIV virus, for that reason alone, would in any way curb the spread of the disease." The court, however, upheld a medical care exception allowing non-consensual HIV testing where medical treatment might be modified due to the presence or absence of HIV. The court found that "there is a legitimate government interest in a treating physician knowing the HIV status of a patient . . . [and] that governmental interest outweighs the . . . privacy interest of an individual."

Thus, two issues emerge. First, how are individuals selected for testing or treatment? Second, does the justification for the particular testing or treatment justify the intrusion into the individual's privacy? Legislation can effectively address each of these issues, as discussed below.

c. Lowering the Threshold of Reasonable Suspicion

The suggestion of authorizing searches in the absence of normally sufficient evidence misconstrues the critical issues discussed above. If the search is directed specifically at someone thought to be a terrorist, the typical "reasonable suspicion" standard is appropriate. In view of the low threshold of this standard, officials will not be unreasonably limited in the actions they can undertake. If the search is directed more broadly than at a designated suspect, no lowering of the threshold of reasonable suspicion is relevant. For example, in the apartment hypothetical discussed earlier, there is no reasonable suspicion whatsoever as to the innocent dwellers in five of the six apartments, and no lower threshold could justify individual searches of their dwellings. This problem is the Fourth Amendment rendition of Russian roulette. Only enabling sweep searches, as discussed below, can address this issue.

d. Sweep Searches

Intrusive sweep searches into dwellings have been judicially struck down on a number of occasions, but in each case the State failed to establish the necessity of those searches.(25) Most notably, the Chicago Housing Authority (CHA) attempted to control the rising instances of violence and drug crimes in its public housing by staging a surprise assault on its public housing projects: all entrances and exits were sealed, and every apartment was searched for drugs, weapons, and illegal residents.(26) The CHA claimed that the searches were justified by the emergency circumstances of high crime and drug use and were necessary to protect the safety and welfare of tenants. Although the dispute was never litigated to a conclusion, most commentators agree that the CHA confused the meaning of the term "emergency" by substituting a serious concern with crime for criteria that focus on the necessity of urgent action.(27)

Intrusion into private dwellings without probable cause to believe that there is evidence of a crime inside raises the most profound Fourth Amendment considerations and must, therefore, be justified by an emergency that is both of great magnitude (i.e., the potential level of harm is great) and of great urgency (i.e., the necessity for immediate action outweighs the privacy interest). No case law has been found where this test has been satisfied, but neither has case law been found which has struck down official action in response to mass disaster or contagion.

4. Can Anything Be Done To Clarify or Expand Emergency Powers?

Neither Congress nor the Executive Branch can promulgate laws that would contravene or diminish the operative scope of the Fourth Amendment.(28) Manifestly unconstitutional behavior cannot be made legal because Congress so legislates. Yet Congress can address the questions outlined above and, in so doing, both overtly define the need asserted to justify the searches and corral law enforcement to ensure that appropriate boundaries are respected. Accordingly, Congress can take at least six possible steps.

First, Congress can explicitly articulate the government interest at stake in bioterrorism cases and expound on the magnitude of that interest. Legislation to address biological terrorism obviously can identify the enormous interests to the public and to national security that compel extraordinary preventive and responsive measures. Indeed, the certainty of this identification probably renders congressional action unnecessary.

Second, Congress can specify that a threat of biological terrorism is an "emergency" and can mandate that the President so designate. This designation would satisfy the legal requirement that broader-than-normal law enforcement powers be exercised only during periods of emergency. Moreover, Congress can specify that enumerated measures be undertaken to address this type of emergency.

Third, Congress can authorize and specify the implementation of appropriate medical measures to prevent harm, including vaccination and quarantine programs.

Fourth, Congress can express its view on the relevance of searches to protecting or promoting the articulated government interests. More specifically, Congress can address the difficulty that standard law-enforcement methods might face in detecting easily concealable but highly dangerous items. In connection with presidential identification of explicitly specified cases of biological terrorism, specific powers to conduct limited and necessary sweep searches may be granted.

Fifth, Congress can specify the selectivity, location, and intrusiveness of searches and identify how the characteristics of the search scheme correspond to the interest to be promoted. These specifications would be analogous to those for warrantless searches of commercial sites conducted pursuant to an administrative search scheme. By specifying the regulatory interest and by tailoring the search scheme to that interest, Congress can go far toward establishing that a particular search, if conducted within the scope of that scheme, is reasonable under the Fourth Amendment.

Finally, Congress can implement means to ensure that searches permitted by the necessity of a biological terrorism event may not be used as a subterfuge to gain access to sites without a warrant and search for an array of criminal activity.

End of document

1. See United States v. Place, 462 U.S. 696, 701 (1983) ("The exigencies of the circumstances" may permit temporary seizure without warrant); see also Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 298-99 (1967) (holding warrantless search for suspect and weapons reasonable where exigent circumstances existed); Schmerber v. California, 384 U.S. 757, 770- 71 (1966) (holding warrantless blood test for alcholo reasonable when exigent circumstances were present).

2. U.S. Const. amend. IV ("The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated ....").

3. O'Connor v. Ortega, 480 U.S. 709, 719 (1987) (quoting United States v. Place, 462 U.S. 696, 703 (1983)).

4. Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 653 (1995). The Vernonia Court held:

[A] warrant is not required to establish the reasonableness of government searches; and when a warrant is not required, ... probable cause is not invariably required either. A search unsupported by probable cause can be constitutional, we have said, "when special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable."

Id. (quoting Griffin v. Wisconsin, 483 U.S. 868, 873 (1987)).

5. Nat'l Treasury Employees Union v. Von Raab, 489 U.S. 656, 665- 66 (1989).

6. Vernonia, 515 U.S. at 654.

7. Id. at 658.

8. Id. at 660.

9. See, e.g., Vernonia, 515 U.S. at 658 (observing "special needs" student-athlete drug test results were not turned over to law enforcement authorities or used for disciplinary action); Von Raab, 489 U.S. at 663 (noting "special needs" search results were not permitted to be given over to the government for prosecution); Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 621 (1989) (noting "special needs" administrative drug test results not sought for criminal prosecution, but rather from adherence to safety regulations). See generally Jennifer Y. Buffaloe, Note, "Special Needs" and the Fourth Amendment: An Exception Poised to Swallow the Warrant Preference Rule, 32 Harv. C.R.-C.L. L. Rev. 529 (1997); Michael Polloway, Comment, Does the Fourth Amendment Prohibit Suspicionless Searches--or do Individual Rights Succumb to the Government's "So-Called" Special Needs?, 10 Seton Hall Const. L.J. 143 (1999). The Supreme Court's most recent pronouncement on the "special needs" doctrine also suggests that the Fourth Amendment standard for biological testing turns, in great part, on whether the information will be used for law enforcement purposes, in which case, the Fourth Amendment standard is rigorous. Ferguson v. Charleston, No. 99-936,-- U.S. --, 2001 WL 273220 (Mar. 21, 2001). By implication, where the information is not used for law enforcement purposes, the latitude offered to the government is broader.

10. See Camara v. Mun. Court of San Francisco, 387 U.S. 523, 539 (1967) (noting warrantless inspections have been "traditionally upheld in emergency situations"). The Court cited North American Cold Storage Co. v. Chicago, 211 U.S. 306 (1908) (seizure of unwholesome food), Jacobson v. Massachusetts, 197 U.S. 11 (1905) (compulsory smallpox vaccination), and Kroplin v. Truax, 165 N.E. 498 (Ohio 1929) (summary destruction of tubercular cattle). See Camara, 387 U.S. at 539.

11. See John F. Decker, Emergency Circumstances, Police Responses, and Fourth Amendment Restrictions, 89 J. Crim. L. & Criminology 433, 451 (1999) (discussing Camara, 387 U.S. 523 (1967

12. See Cady v. Dombrowski, 413 U.S. 433, 441 (1973) (concluding community caretaker functions were not within the purview of normal warrant requirements because they are totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute); see also Colorado v. Bertine, 479 U.S. 367, 381 (1987) (Marshall, J., dissenting) ("Inventory searches are not subject to the warrant requirement because they are conducted by the government as part of a community caretaking function")

13. See Cady, 413 U.S. at 441. See generally Mary Elisabeth Naumann, The Community Caretaker Doctrine: Yet Another Fourth Amendment Exception, 26 Am J. Crim. L. 325 (1999); Philip B. Heymann, The New Policing, 28 Fordham Urb. L.J. 407 (2000).

14. U.S. Const. amend. V.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.


15. U.S. Const. amend. VI.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

16. See Whren v. United States, 517 U.S. 806, 813 (1996) (stating that the Constitution prohibits selective enforcement of the law based on considerations such as race); Brown v. City of Oneonta, 195 F.3d 111, 118- 19 (2d Cir. 1999) (stating that an equal protection violation may be premised on police practice of conducting investigations utilizing racially based classifications); United States v. Avery, 137 F.3d 343, 354 (6th Cir. 1997) (holding that race cannot be the sole basis for conducting a search); see also Sheri L. Johnson, Race and the Decision to Detain a Suspect, 93 Yale L.J. 214 (1983).

17. Compare Cardell v. Lewis, 417 U.S. 583, 591 (1974) (holding warrantless search of motor vehicles permissible), and Terry v. Ohio, 392 U.S. 1 (1968) (holding warrantless search of person in public permissible given certain conditions), with Payton v. New York, 445 U.S. 573, 592 (1980) (prohibiting police from making warrantless and nonconsensual entry into suspects' homes in order to make routine felony arrests).

18. See Maryland v. Buie, 494 U.S. 325 (1990) (upholding the constitutionality of warrantless post-arrest protective sweep searches within a limited area).

19. See United States v. Martinez-Fuerte, 428 U.S. 543, 566 (1976) (holding stops for brief questioning at checkpoints are consistent with the Fourth Amendment and need not be authorized by a warrant); Jacobson v. Massachusetts, 197 U.S. 11, 25 (1905) (observing quarantine laws are authorized within the police power of the state to provide for public health and safety). The Supreme Court addressed the outer limits of the police power to use checkpoints this Term in City of Indianapolis v. Edmond, 121 S. Ct. 447 (2000) (holding that the city's drug interdiction checkpoints were in violation of the Fourth Amendment).

20. See Laaman v. U.S., 973 F.2d 107 (2d Cir. 1992) (involving alleged terrorist conspiracy to bomb military offices).

21. See çàCompagnie Franaise de Navigation Vapeur v. La. State Bd. of Health, 186 U.S. 380 (1902) (preventing immigrants from a potentially infected area from entering the country).

22. See, e.g., Jacobson, 197 U.S. at 26.

[T]he liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good.... [A] community has the right to protect itself against an epidemic of disease which threatens the safety of its members. It is to be observed that when the regulation in question was adopted smallpox, according to the recitals in the regulation adopted by the board of health, was prevalent to some extent in the city of Cambridge, and the disease was increasing. If such was the situation,--and nothing is asserted or appears in the record to the contrary,--if we are to attach, any value whatever to the knowledge which, it is safe to affirm, in common to all civilized peoples touching smallpox and the methods most usually employed to eradicate that disease, it cannot be adjudged that the present regulation of the board of health was not necessary in order to protect the public health and secure the public safety.

Id. at 26-28.

23. See, e.g., In re Halko, 54 Cal. Rptr. 661, 664-65 (1966) (requiring reasonable grounds to believe the person is actually infected (and contagious) in order to justify restraint of personal liberty); People ex. rel. Barmore v. Robertson, 134 N.E. 815, 819 (1922) (stating that a person cannot be quarantined upon mere suspicion that he may have a contagious and infectious disease)

24. No. 91-A-626-N, 1993 WL 595676 (M.D. Ala. Oct. 7, 1993).

25. See, e.g., Steagald v. United States, 451 U.S. 204 (1981) (holding officers' search unconstitutional without requisite consent of exigent circumstances); Pratt v. Chicago Hous. Auth., 848 F. Supp. 792 (N.D. Ill. 1994) (holding searches conducted in the absence of probable cause or exigent circumstances unconstitutional).

26. See Pratt, 848 F. Supp. at 792.

27. See Andrew Byers, Note, The Special Government Needs Exception: Does It Allow for Warrantless Searches of Public Housing?, 41 Wayne L. Rev. 1469 (1995); Zionne N. Presley, Note, Privacy or Safety: A Constitutional Analysis of Public Housing Sweep Searches, 6 B.U. Pub. Int. L.J. 777 (1977); Monica L. Selter, Comment, Sweeps: An Unwarranted Solution to the Search for Safety in Public Housing, 44 Am. U. L. Rev. 1903 (1995).

28. See District of Columbia v. Little, 178 F.2d 13, 19 (D.C. Cir. 1949), aff'd, 339 U.S. 1 (1950); cf. Dickerson v. United States, 120 S. Ct. 2326, 2329 (2000) (ruling that Congress may not legislatively supersede a "constitutional decision" of the United States Supreme Court).


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