1 As used in this essay, a pandemic is an outbreak of an infectious disease that exceeds a prevalence that might be expected in the affected population during a particular period of time. For my purposes the distinction between a pandemic, which officially requires prevalence in more than one country in different regions of the world, and a localized epidemic, is immaterial. In today's globalized world of extensive border crossings a localized outbreak of a highly contagious disease has a substantial risk of becoming a pandemic. My usage reflects elements of both the epidemiologic and World Health Organization (WHO) definitions. See Stedman's Medical Dictionary 653, 1141 (28th ed. 2006)Google Scholar; Chan, Margaret, World Now at the Start of 2009 Influenza Pandemic, WHO (June 11, 2009), http://www.who.int/mediacentre/news/statements/2009/h1n1_pandemic_phase6_20090611/en/.Google Scholar The distinction material to my discussion is between the declaration of a pandemic and the declaration of a state of emergency. An outbreak presenting no evidence of a serious risk of morbidity or mortality to those it infects may not warrant a declaration of a state of emergency as defined in this essay. See Jon Cohen, Pandemic Definition Continues to Mystify, Science (May 26, 2009, 4:26 PM), http://news.sciencemag.org/scienceinsider/2009/05/pandemicdefini.html (discussing the controversy over the WHO's revision in 2009 of its of epidemic/pandemic definition by removing consideration of disease severity).

2 Comm. on Smallpox Vaccination Program Implementation, Inst. of Med., The Smallpox Vaccination Program: Public Health in an Age of Terrorism 308-09 (2005). “The overall effectiveness of exercises as a preparedness strategy has not been well demonstrated and research is needed to determine, for example, whether exercises could be considered predictors of successful response … .” Id. at 313.

3 See, e.g., William D. Cohan, House of Cards: A Tale of Hubris and Wretched Excess on Wall Street (2009); Paul Krugman, The Return of Depression Economics and the Crisis of 2008 (2008); Roger Lowenstein, When Genius Failed: The Rise and Fall of Long-Term Capital Management (2000); Gillian Tett, Fool's Gold 180-91 (2009); David Wessel, In Fed We Trust: Ben Bernanke's War on the Great Panic 50-66 (2009). While each author examines different pieces of the history and events of the financial crisis, all acknowledge a failure to anticipate unforeseeable developments and the false confidence of government officials, institutional executives and investors that people and markets act and react rationally.

4 I do not distinguish here between state and federal government responsibilities for responding to a public health emergency and take no position in the debate over whether primary responsibility should be shifted to the latter. Experts reviewing government pandemic preparations have noted the potential for conflicts both between state and federal governments and among the states, which may compromise the effectiveness of government interventions to prevent or mitigate a pandemic threat. See, e.g., Annas, George J., Puppy Love: Bioterrorism, Civil Rights, and Public Health, 55 Fla. L. Rev. 1171, 1178 (2003)Google ScholarPubMed; Khan, Fazal R., Ensuring Government Accountability During Public Health Emergencies, 4 Harv. L. & Pol’y Rev. 319, 322-25 (2010)Google Scholar (arguing that the locus of power during a future public health emergency will be at the federal level). Because I believe that (1) the leadership, resources, and coordination of response to a nationwide pandemic will come from the federal government; (2) legal challenges to government responses that derogate an individual's civil liberties will be judged under federal constitutional standards (perhaps in addition to the provisions of a state's constitution); and (3) most of my discussion could be applicable to state as well as the federal government officials, I use generic designations, such as government officials, the executive, and legislators, without reference to whether they are state or federal. When the issues or examples are drawn from, or relate to, a particular governmental unit, I use the appropriate designation.

5 The debate over health care reform was instructive. The fear that bold and complicated proposals harbor dramatic change and unintended consequences aroused strong opposition that prompted many to accept implausible misinformation (e.g., “death panels”) in a desire to maintain the status quo. See, e.g., Justin Bank, Palin v. Obama: Death Panels, FactCheck.org (Aug. 14, 2009, 5:43 PM), http://www.factcheck.org/2009/08/palin-vs-obama-death-panels.

6 See Derrick Bell, And We Are Not Saved: The Elusive Quest for Racial Justice 162-77 (1987). In Bell's account of “The Chronicle of the Amber Cloud,” government officials and the majority white population are willing to spend large sums of public funds to treat the white children afflicted with a disease but not to provide treatment for black children who would benefit although they did not have the disease. Bell's characters conclude that the Supreme Court would be unlikely to find that “the government's provision of health benefits to whites and its denial of the same benefits to blacks with precisely the same needs,” id. at 174, amounted to disparate impact that violates equal protection since there was no evidence of “outright bigotry.” Id. at 170-71.

7 See, e.g., MARC J. HETHERINGTON, WHY TRUST MATTERS: DECLINING POLITICAL TRUST AND THE DEMISE OF AMERICAN LIBERALISM 53 (2005) (“If government has lost this trust [of its citizens],… it will be more difficult for it to gain policy support, especially when proposed policies involve at least perceived sacrifice and risk.”). Opinion polls generally reflect significant public suspicion of government. For example, in September 2008, Gallup reported that trust and confidence in the Executive Branch was 42%. Jeffrey M. Jones, Trust in Government Remains Low, Gallup (Sept. 18, 2008), http://www.gallup.com/poll/110458/trust-government-remains-low.aspx. In September 2009, under the headline “Trust in State Government Sinks to New Low,” Gallup reported only 51% of respondents had a great deal or fair amount of trust in the government of their state to handle state problems. Jeffrey M. Jones, In U.S., Trust in State Government Sinks to New Low, Gallup (Sept. 10, 2009), http://www.gallup.com/poll/122915/trust-state-government-sinksnew-low.aspx. While questions of trust in the abstract, together with executive approval ratings, are at best snapshots of a current political environment, the significant public trust deficit bodes ill for the public's willingness to follow government orders or recommendations during an emergency. A New York Academy of Medicine report found that an important predictor of public willingness to follow government advice is whether the public trusts official instructions. ROZ D. LASKER, REDEFINING READINESS: TERRORISM PLANNING THROUGH THE EYES OF THE PUBLIC 36-39 (2004), http://www.redefiningreadiness.net/pdf/RedefiningReadinessStudy.pdf; see also GEORGE J. ANNAS, WORST CASE BIOETHICS: DEATH, DISASTER, AND PUBLIC HEALTH 227-28 (2010); Paek, Hye-Jin et al., Public Support for Government Actions During a Flu Pandemic: Lessons Learned from a Statewide Survey, 9 HEALTH PROMOTION PRAC. (Supplement) 60S, 68S-69S (2008).CrossRefGoogle ScholarPubMed

8 I use the term “derogation” to refer to a government official's intentional violation, in whole or part, of an individual's rights or liberties guaranteed by federal or state constitutions or by international law. My use of “derogation” is influenced by the distinction in human rights treaties between derogation and limitation of rights for purposes of determining the legitimacy of state action during emergencies. States may legitimately limit certain rights during emergencies while the derogation of a right, even during an emergency, may constitute a treaty violation. There is considerable overlap between the concepts, both of which involve partial or complete elimination of an individual's entitlement or of a government's obligation. Under international law, the charge that a state has derogated protected rights is a potentially more serious violation that warrants stricter scrutiny to determine its legality. See McGoldrick, Dominic, The Interface Between Public Emergency Powers and International Law, 2 INT’L J. CONST. L. 380 (2004).Google Scholar By using “derogation” I do not imply that a violation of rights can never be legally excused in an emergency. Rather, as explained in Parts II and III, I seek to distinguish between legislation that ex ante authorizes government to derogate protected rights and decisions made during an actual emergency, in which exigent circumstances justify the derogation of rights even without preauthorization.

9 Articulating the issue in this manner is inspired by Professor Walter F. Murphy's argument that “[u]nder truly extraordinary conditions, government might legitimately suspend the Constitution, but it could not legitimately suspend its commitment to constitutionalism.” Walter F. Murphy et al., American Constitutional Interpretation 1177 (1986). He explains that government must “respect … the worth and dignity of each citizen” even if it derogates from the document's articulated limitations. Id.

10 I use the concept of crisis to refer to the adversity encountered when an unexpected threat of infectious disease threatens significant disruption of routine existence for a substantial proportion of the population in a defined geographic area (of any size), which requires government officials to make critical decisions under time pressure in circumstances of pervasive uncertainty. Such decisions may result in actions that challenge fundamental values and norms of social and legal systems. See Rosenthal, Uriel & Kouzmin, Alexander, Crises and Crisis Management: Toward Comprehensive Government Decision Making, 7 J. Pub. Admin. Res. & Theory 277, 278-80 (1997) (U.K.)CrossRefGoogle Scholar. While I use the terms emergency and crisis interchangeably, I distinguish this descriptive reference from the act of declaring a state of emergency. The authority to declare an emergency and the process for issuing such a declaration is governed by law or convention. I will argue that legislation that specifies conditions for authorizing a state of emergency and that triggers the availability of extraordinary emergency powers to derogate human rights is counterproductive to the preservation of constitutionalism and effective crisis management. See also infra note 11. See generally Mariner, Wendy K., Annas, George J. & Parmet, Wendy E., Pandemic Preparedness: A Return to the Rule of Law, 1 Drexel L. Rev. 341 (2001)Google Scholar (arguing against legislating coercive emergency powers).

11 The discussion in this paper is concerned with declarations of states of emergency in which the government claims that necessity requires arrogation of powers to infringe constitutionally protected rights. I am not addressing statutory schemes that require emergency declarations for administrative purposes. See, e.g., Emergency Medical Treatment and Active Labor Act, 42 U.S.C. § 1395dd (2006) (allowing suspension of state licensing requirements to increase the availability of emergency response personnel); Public Health Improvement Act, Pub. L. No. 106-505, § 102, 114 Stat. 2314, 2315 (2000) (codified as amended at 42 U.S.C. § 247d (2006)); Disaster Relief and Emergency Assistance (Robert T. Stafford) Act of 1974, 42 U.S.C. §§ 5121-5206 (2010) (authorizing waiver of various requirements to assist with disaster or emergency relief efforts). Emergency statutes abound at both the federal and state levels, the diversity of which suggests the need for standardization of rhetoric for identifying declarations that may result in fundamental change of the legal norms of government operation. That challenge, however, is beyond the scope of this essay. See Harold C. Relyea, Congressional Research Service, Report for Congress, National Emergency Powers (2007), http://www.fas.org/sgp/crs/natsec/98-505.pdf (explaining limits to the President's exercise of emergency powers); cf. Clinton L. Rossiter, Constitutional Dictatorship: Crisis Government in the Modern Democracies 211-22 (1948).

12 Speculating on why the Framers may have omitted emergency powers in the Constitution, Justice Jackson stated, “We may also suspect that they suspected that emergency powers would tend to kindle emergencies.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 650 (1952) (Jackson, J., concurring).

13 For example, epidemics have historically had a disproportionately negative impact on minority populations. See discussion infra Part II. Not surprisingly, surveys measuring public trust in government exercise of coercive public health powers reveal that a higher percentage of African-Americans than Caucasians believe that the government will abuse its power. See, e.g., Taylor-Clark, Kalahn et al., Confidence in Crisis? Understanding Trust in Government and Public Attitudes Toward Mandatory State Health Powers, 3 Biosecurity & Bioterrorism: Biodefense Strategy Prac. & Sci. 138, 143-44 (2005).CrossRefGoogle ScholarPubMed

14 See supra note 11.

15 Constitutionalism includes the principles of: (1) accountability for official government actions; (2) constraints on power (in text or form), especially power infringing on guaranteed rights; (3) common understanding; (4) legislative compatibility with constitutional text or understanding; and (5) a regularized process under which power is exercised, including separation of powers. See Walter F. Murphy, Constitutional Democracy: Creating and Maintaining a Just Political Order 6-10 (2007). The debate over deficiencies in our current Constitution is beyond the scope of this paper, as is the political theorists’ debate over the relationship of constitutional legitimacy and the sovereign power to declare emergencies. See, e.g., Giorgio Agamben, State of Exception (Kevin Attell trans., 2005); Carl Schmitt, Constitutional Theory (Jeffrey Seitzer ed. & trans., 2007).

16 Cf. Rossiter, supra note 11, at 11 (“The fact remains that there have been instances in the history of every free state when its rulers were forced by the intolerable exigencies of some grave national crisis to proceed to emergency actions for which there was no sanction in law, constitution, or custom, and which indeed were directly contrary to all three of these foundations of constitutional democracy.”). Rossiter notes with approval the practice of the Roman republic in which those who declared the emergency and appointed the dictator were not the same individuals who exercised the dictatorial powers. Rossiter and others who have compared the constitutions of democratic regimes that authorize states of emergency have highlighted processes for such declarations that require the input of more than a single individual. See Oren Gross & Fionnuala Ní Aoláin, Law in Times of Crisis: Emergency Powers in Theory and Practice (2006); Ferejohn, John & Pasquino, Pasquale, The Law of the Exception: A Typology of Emergency Powers, 2 Int’l J. Const. L. 210 (2004).Google Scholar

17 By “panic” I mean the human reaction to a threat of intense fear or anxiety that has the capacity to undermine reasoned analysis and rational public discourse about how to respond. In a crisis, this might include misguided public demands for government action or ill-advised public defiance of government orders. Where the fears are intensified by the absence of information or misinformation they can magnify the perception of the threat out of proportion to the danger. This definition borrows from the concept of “germ panic” discussed by Dr. Nancy Tomes. Tomes, Nancy, The Making of Germ Panic, Then and Now, 90 Am. J. Pub. Health 191, 192 (2000).Google Scholar

18 George J. Annas, Terrorism and Human Rights, in In the Wake of Terror: Medicine and Morality in a Time of Crisis, 33, 33 (Jonathan D. Moreno ed., 2003) (“[T]aking human rights and bioethics seriously makes public health and safety measures more effective, at least in democracies, where public trust in government is essential to its success.”). Even those who advocate that emergency powers legislation is necessary admit that some measure of voluntary compliance is essential for a coercive order to be effective. Gostin, Lawrence O., When Terrorism Threatens Health: How Far Are Limitations on Personal and Economic Liberties Justified?, 55 Fla. L. Rev. 1105, 1167 (2003)Google ScholarPubMed (“[I]f quarantine or isolation is mandated, the cooperation of the public is crucial to its success.”).

19 Barry, John M., Opinion, Pandemics: Avoiding the Mistakes of 1918, 459 Nature 324, 325 (2009).CrossRefGoogle ScholarPubMed Annas notes how Barry's analysis has evolved from the time he authored his study in which he claims that the government requires “ruthless” coercive powers to protect against the spread of disease. Annas, supra note 7, at 219-20.

20 I also omit discussion of non-constitutional legal issues associated with emergency preparedness. Some have thoughtfully argued that better preparedness can obviate the need for statutes that authorize the executive to order coercive measures that compromise constitutional rights. I note, however, that the technocracy envisioned here could provide a forum for civic engagement and public and private collaboration that would enhance public cooperation during an emergency. See, e.g., Annas, supra note 7; Roz D. Lasker, Nan. D. Hunter & Sarah E. Francis, With the Public's Knowledge, We Can Make Sheltering in Place Possible 2 (2007), http://www.redefiningreadiness.net/pdf/sipreport.pdf; Berger, Sam & Moreno, Jonathan D., Public Trust, Public Health, and Public Safety: A Progressive Response to Bioterrorism, 4 Harv. L. & Pol’y Rev. 295, 312-16 (2010)Google Scholar; Schoch-Spana, Monica, Editorial, Community Resilience for Catastrophic Health Events, 6 Biosecurity & Bioterrorism: Biodefense Strategy, Prac. & Sci. 129, 129 (2008).CrossRefGoogle ScholarPubMed I also do not mean to imply that the technocracy can replace the investment in strengthening the nation's public health system, which all agree is needed to protect the public's health generally and to ensure that the government can effectively respond to a public health emergency.

21 See Annas, supra note 7, at 222 (observing that in addition to maintaining public trust to prevent the spread of fear and panic, government officials must themselves avoid panic).

22 Needless to say, public health and national security considerations coincide where the contagion results from a terrorist attack with a biological weapon. Several scholars whose works have made significant contributions to the national security debate compare or conflate issues of the government's response to terrorism with its response to public health emergencies. See, e.g., Bruce Ackerman, Before the Next Attack: Preserving Civil Liberties in an Age of Terrorism 53-55 (2006). Ackerman draws analogies between quarantine and preventive detention in explaining his proposal for an “emergency constitution.” Id. at 55. Interestingly, he notes, “[e]ven the relatively uncontroversial matter of defining emergency power for public health crises has proved extremely contentious.” Id. at 192 n.30; see also Philip Bobbitt, Terror and Consent: The Wars for the Twenty-First Century (2008). Noting that public health disasters, including earthquakes or influenza, are as capable of inflicting large-scale harm on the United States as terrorist attacks, Bobbitt includes public health threats in his discussion of fighting terrorism. He draws analogies, such as “in addition to stockpiling vaccines, we need to stockpile rules … to anticipate such a crisis, for that step too is a way of decreasing our vulnerabilities.” Id. at 404. In the end, Bobbitt refers to his lengthy book as “my Plague Treatise” for building up “our immune systems, which include our alliances, and our laws.” Id. at 541. He calls al Qaeda “the Islamist flu,” for which we need flu shots and treatment, but also maintains “we have to prepare for sicknesses from many other quarters, including those of which we have as yet no knowledge.” Id. But see Annas, supra note 7, at 219-50. George Annas argues that the importation of post-9/11 national security and war analogies into public health is inappropriate and counterproductive. Id. The dangers to individual rights of “militarizing” public health predate 9/11. See, e.g., Batlan, Felice, Law in the Time of Cholera: Disease, State Power, and Quarantines Past and Future, 80 Temp. L. Rev. 53, 61 (2007).Google Scholar

23 See Comm. on Smallpox Vaccination Program Implementation, supra note 2.

24 Ackerman, supra note 22, at 65.

25 Rosenthal & Kouzmin, supra note 10, at 289.

26 Examining the 2009 H1N1 pandemic in an historical context, one commentary concluded: “It is well to remember that, as Kierkegaard said about life, influenza epidemics are lived forward and understood backward.” Morens, David M. & Taubenberger, Jeffrey L., Commentary, Understanding Influenza Backward, 302 JAMA 679, 680 (2009).CrossRefGoogle ScholarPubMed

27 John M. Barry, The Great Influenza 107 (2004).

28 Edelson, Paul J., Quarantine and Social Inequality, 290 JAMA 2874 (2003)CrossRefGoogle Scholar (“Public Health concerns were defined by many public health officials as issues of race and economic status.”); see also Batlan, supra note 22, at 78, 96, 103; Jacobs, Lesley, Rights and Quarantine During the SARS Global Health Crisis: Differentiated Legal Consciousness in Hong Kong, Shanghai, and Toronto, 41 Law & Soc’y Rev. 511 (2007)CrossRefGoogle Scholar (“In the early part of the twentieth century, quarantine was a measure closely associated with the arbitrary and discriminatory uses of state force, targeting racial minorities and lower socio-economic classes.”).

29 Howard Markel & Sam Potts, Op-Ed, American Epidemics, a Brief History, N.Y. Times, May 3, 2009, at 12. The authors chart nine epidemics in the United States between 1902 and 2003 noting, inter alia, the public health strategy and the “scapegoat” minority charged with responsibility for each outbreak. Id.

30 Howard Markel, When Germs Travel: Six Major Epidemics that Have Invaded America and the Fears They Have Unleashed 5 (2004).

31 In the preface to his history of quarantine, Dr. Howard Markel writes of his feeling of being “quarantined, cut off entirely from normal human society simply because I was the husband of a dying woman.” His wife, having been diagnosed with a rare cancer a month before their wedding, died thirteen months later at age thirty. Acknowledging that the sense of social isolation is more strongly felt by the person who is ill, he explains, “[e]ven a disease as ‘socially acceptable’ and non-communicable as cancer has the potential to frighten healthy people away. Caregivers of the ill, I learned firsthand, also complain of isolation from the so-called healthy or normal world.” Howard Markel, Quarantine! East European Jewish Immigrants and the New York City Epidemics of 1892, at xi (1997).

32 Eichelberger, Laura, SARS and New York's Chinatown: The Politics of Risk and Blame During an Epidemic of Fear, 65 Soc. Sci. & Med. 1284, 1284-85 (2007).CrossRefGoogle Scholar Eichelberger writes that “[t]he American public, including Chinatown, had become infected with an epidemic of fear, not of disease.” Id. at 1285. Estimates of business decline in Chinatown range from 30- 70%. Id. at 1288; see also Annas, supra note 7, at 221-28.

33 A CNN television news program host, Lou Dobbs, regularly advocated for restricting legal immigration and deporting illegal immigrants by connecting immigrants with disease. Dobbs set off a major controversy when he aired a report claiming that cases of leprosy (Hansen's Disease) in the United States increased from 900 cases in forty years to 7,000 cases in the past three years, and then defended its accuracy despite evidence to the contrary. He speculated that the disease was most likely brought to this country by undocumented aliens arriving from Southeast Asia. Lou Dobbs Tonight (CNN television broadcast May 7, 2005), available at http://www.youtube.com/watch?v=u42ueyKDq4Q;Google Scholar see CBS Contributor Dobbs Defends False Leprosy Claim After Confrontation by CBS’ Stahl, Media Matters (May 7, 2007), http://mediamatters.org/research/200705110004 (detailing the controversy and analyzing the claims). See generally David H. Bennett, Party of Fear, The American Far Right from Nativism to the Militia Movement (1988).

34 See generally Markel, supra note 31.

35 Long after the transmissibility of HIV was discovered, many politicians and their constituents used fear of getting the disease to marginalize homosexuals. Although unsupported by scientific fact, a congressional enactment in 1993 required the U.S. to list HIV as a “communicable disease of public health significance.” A waiver provision enabled the government to discriminate against homosexuals. The ban on entry of HIV-positive individuals into the United States lasted twenty-two years. President Barack Obama announced its end on October 30, 2009. Julia Preston, Obama Lifts a 22-Year Ban on Entry into U.S. by H.I.V.-Positive People, N.Y. Times, Oct. 31, 2009, at A9.

36 Speaking of the 2009 H1N1 pandemic, Amy Fairchild, Chair of Sociomedical Sciences at Columbia University, explained to msnbc, “[t]his is a pattern we see again and again … . It's ‘the other,’ the group not seen as part of the nation, the one who threatens it in some way that gets blamed for the disease.” Brian Alexander, Amid Swine Flu Outbreak, Racism Goes Viral, msnbc.com (May 1, 2009), http://www.msnbc.msn.com/id/30467300.

37 Historically, blame of the proverbial “other” offered some comfort and a sense of control, even if illusory. In his account of the 1918 pandemic, John Barry summarized the historians’ conclusions:

Those historians who have examined epidemics and analyzed how societies have responded to them have generally argued that those with power blamed the poor for their own suffering, and sometimes tried to stigmatize and isolate them … . Those in power, historians have observed, often sought security in imposing order, which gave them some feeling of control, some feeling that the world still made sense.

Barry, supra note 27, at 394-95; see also Susan Craddock, City of Plagues: Disease, Poverty, and Deviance in San Francisco 61-102 (2000) (“By the late 1870s, Chinatown was almost synonymous with smallpox.”); Eichelberger, supra note 32, at 1285 (“Individuals and groups project the risk of infection and death onto an ‘Other’ in order to reduce powerlessness experienced during a deadly epidemic.”).

38 See, e.g., Ackerman, supra note 22, at 8, 80.

39 See, e.g., Steve Osunsami, Poorest Hit Hardest by Hurricane Katrina: Disaster Disproportionately Affects Those Who Can Least Afford It, ABC News, Aug. 30, 2005, http://abcnews.go.com/WNT/HurricaneKatrina/story?id=1081329; see also Select Bipartisan Comm. to Investigate the Preparation for and Response to Hurricane Katrina, A Failure of Initiative, H.R. Rep. No. 109-377 (2006), http://www.gpoaccess.gov/katrinareport/mainreport.pdf.

40 For example, in 2010, 70% of voters in Oklahoma approved a referendum banning use of Islamic Shariah law in its state courts. Although the threat to Oklahoma residents was negligible, the fear was tangible. James C. McKinley, Judge Blocks Oklahoma Ban on Using Shariah Law in Court, N.Y. Times, Nov. 20, 2010, http://www.nytimes.com/2010/11/30/us/30oklahoma.html.

41 According to Palin, “Al-Qaida terrorists still plot to inflict catastrophic harm on America … [and Obama is] worried that someone won't read them their rights?” She maintained that such constitutional rights are but “niceties” in the face of a perceived threat. Sarah Palin, Republican Vice Presidential Nominee, Vice Presidential Acceptance Speech, Republican National Convention 2008 (Sept. 3, 2008), available at http://www.clipsandcomment.com/2008/09/03/full-text-sarah-palin.

42 Thomas O. McGarity & Wendy E. Wagner, Bending Science: How Special Interests Corrupt Public Health Research 43 (2008). While they are referring primarily to private and public interest advocates who use “bent science” to support their arguments to courts and agencies, their analysis is equally applicable to public officials who allow their political ideology or personal agendas to skew their interpretation of what actions are warranted by the facts.

43 See O’Toole, Tara, Mair, Michael & Inglesby, Thomas V., Shining Light on “Dark Winter,” 34 Clinical Infectious Diseases 972, 982 (2002)CrossRefGoogle Scholar, http://www.jstor.org/pss/4483004. The exercise revealed a host of problems associated with human reactions including fear, suspicion and rivalry.

44 Annas, George J., The Statue of Security: Human Rights and Post-9/11 Epidemics, 38 J. Health L. 319, 341 (2005)Google ScholarPubMed; see also Lasker, supra note 7; Mariner, Annas & Parmet, supra note 10, at 350.

45 Ron Suskind, The One Percent Doctrine: Deep Inside America's Pursuit of 9/11, 62 (2006).

46 Id. at 308.

47 Annas, supra note 7, at 230.

48 Id.

49 I do not include here the concerns expressed by many that the current statutes governing emergency preparedness in general and those authorizing public officials to derogate rights in particular are antiquated, conflicting, or inadequate to address a modern pandemic. See, e.g., Blum, John D., Too Strange to be Just Fiction: Legal Lessons from a Bioterrorist Simulation, the Case of TOPOFF 2, 64 La. L. Rev. 905 (2004)Google Scholar; Hodge, James G. Jr., Gostin, Lawrence O., Gebbie, Kristine & Erickson, Deborah L., Transforming Public Health Law: The Turning Point Model State Public Health Act, 34 J.L. Med. & Ethics 77 (2006)CrossRefGoogle Scholar; Pestronk, Robert M. et al., Improving Laws and Legal Authorities for Public Health Emergency Legal Preparedness, 1 J.L. Med. & Ethics (Supplement) 47 (2008)CrossRefGoogle Scholar. Blum's summary is typical:

Blum, supra, at 905.

50 See supra text accompanying notes 41-46. See generally Jack L. Goldsmith, The Terror Presidency: Law and Judgment Inside the Bush Administration (2007).

51 While 9/11 added new urgency, the debate over the legitimate exercise of such powers, however, is not new. As Walter Murphy observed, “our record of hysterical mistreatment in the name of survival is hardly one that can be squared with a Constitution that seeks to enshrine human dignity and the life of reason as national ideals.” He adds, however, that the American record is better than most nations. Murphy et al., supra note 9, at 1179-80.

52 Mariner, Annas & Parmet, supra note 10, at 353 (“Converting the well-known risk of epidemics into the equivalent of war on the American people enabled the federal government to exert a degree of control over individual patients that was unprecedented in the modern era, and to spend federal dollars to encourage states to do the same.”).

53 Model State Emergency Health Powers Act (Ctr. for Law and the Public's Health 2001) [hereinafter MSEHPA], http://www.publichealthlaw.net/MSEHPA/MSEHPA.pdf; see James G. Hodge & Lawrence O. Gostin, Protecting the Public's Health in an Era of Bioterrorism: The Model State Emergency Health Powers Act, in In the Wake of Terror: Medicine and Morality in a Time of Crisis (Jonathan D. Moreno ed., 2003) (discussing the necessity and potential impact of the MSEHPA).

54 Gostin, Lawrence, Commentary, When Terrorism Threatens Health: How Far Are Limitations on Human Rights Justified, 31 J.L. Med. & Ethics 524, 527 (2003)CrossRefGoogle ScholarPubMed; see also Hodge, James G. Jr., Bioterrorism Law and Policy: Critical Choices in Public Health, 30 J.L. Med. & Ethics 254 (2002)CrossRefGoogle ScholarPubMed (detailing the necessity for public health emergency powers and how they may be used in practice).

55 Annas, supra note 7, at 229. Other critiques of public health scholars include Annas, supra note 4; Annas, supra note 44; Mariner, Annas & Parmet, supra note 10, at 353; and Wing, Kenneth R., Policy Choices and Model Acts: Preparing for the Next Public Health Emergency, 13 Health Matrix 71 (2003).Google ScholarPubMed Critics often cite Benjamin Franklin, who reportedly said, “They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.” See, e.g., Annas, supra note 44, at 321-22. For a bioethical critique that also questions the efficacy of the coercive model, see Berger & Moreno, supra note 20.

56 This was demonstrated when, in the midst of the SARS scare, New York City amended its health code to extend the quarantine powers of public health officials to include someone suspected of contact with a sufferer or carrier of a contagion. No one showed up at a public hearing to oppose the change. Annas, supra note 7, at 225.

57 See Berger & Moreno, supra note 20, at 297 (calling the MSEHPA “a seemingly easy political fix that ignores larger systemic needs”).

58 See, e.g., Michael T. Osterholm, Unprepared for a Pandemic, 86 Foreign Aff., Mar.-Apr. 2007, at 47, 55-56 (noting that a severe pandemic will profoundly impact commerce, civic life, and politics, among other negative consequences).

59 The participation of the military in law enforcement activities is limited by the Posse Comitatus Act, 18 U.S.C. § 1385 (2006). Accounts of the events in New Orleans in the immediate aftermath of Hurricane Katrina provide one example of the potential for the breakdown of public order during an emergency and the uncertainty associated with the role of the military. See Spencer S. Hsu, John Warrick & Rob Stein, Documents Highlight Bush- Blanco Standoff, Wash. Post, Dec. 5, 2005, http://www.washingtonpost.com/wpdyn/content/article/2005/12/04/AR2005120400963.html. Post-Katrina, the Army announced that it was creating a dedicated unit to be on call for response to a natural or manmade emergency or disaster. Gina Cavallaro, Brigade Homeland Tours Start Oct. 1, Army Times, Sept. 30, 2008, http://www.armytimes.com/news/2008/09/army_homeland_090708w/.

60 For example, during the SARS epidemic, when a rumor started that Chinese government officials were going to order a quarantine of Beijing, a quarter of a million migrant workers reportedly fled the city. Elsewhere mistrust of the Chinese government led to riots and non-cooperation, reducing the effectiveness of government strategies for preventing the spread of the disease. Annas, George J., Blinded by Bioterrorism: Public Health and Liberty in the 21st Century, 13 Health Matrix 33, 65 (2003).Google ScholarPubMed

61 See Justice Jackson's concurrence in Youngstown:

343 U.S. at 649-50.

Id. at 637; see also Rossiter, supra note 11, at 207-87.

62 Jefferson maintained: “A strict observance of the written laws is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of selfpreservation, of saving our country when in danger, are of higher obligation.” Letter from Thomas Jefferson, U.S. President, to John B. Colvin (Sept. 20, 1810), reprinted in Murphy et al., supra note 9, at 1182; see also The Federalist No. 41 (James Madison).

63 Lincoln's Special Session Message (July 4, 1861), in Messages and Papers of the Presidents 3224 (New York, Bureau of National Literature 1897), quoted in Murphy et al., supra note 9, at 1190.

64 The legislature can forbid particular action, or it can condition the exercise on the existence of certain conditions or observance of specified processes. See Youngstown, 343 U.S. at 585-87; id. at 643-46 (Jackson, J., concurring); id. at 656 (Burton, J., concurring). Individuals have limited recourse against a government that invokes the power but ignores the conditions. See infra Part III; cf. The Federalist No. 23, at 121 (Alexander Hamilton) (Clinton Rossiter ed., New American Library 1999) (“The circumstances that endanger the safety of nations are infinite, and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed.”).

65 See, e.g., Wessel, supra note 3.

66 The WHO officially confirmed the existence of a pandemic. See WHO, Pandemic (H1N1) 2009, http://www.who.int/csr/disease/swineflu/en/index.html (last visited Feb. 9, 2011).

67 This discussion will not include a full-scale exploration of the nuts and bolts of a technocracy's operation. Should the concept achieve traction, the ensuing public discussion will identify the feasible, desirable, and politically acceptable details of its organization and operation.

68 Carroll, Lewis, Alice's Adventures in Wonderland 108 (Oxford Univ. Press 1982) (1865)Google Scholar.

69 In 1975 a special Senate committee chartered to investigate ending the 1950 proclamation of national emergency that was being used to pursue the Vietnam War discovered that there were four emergency declarations in effect from 1933, 1950, 1970 and 1971. According to a Congressional Research Service report, “The United States was in a condition of national emergency four times over, and with each proclamation, the whole collection of statutorily delegated emergency powers was activated.” Relyea, supra note 11, at 9; see Scheppele, Kim Lane, Law in a Time of Emergency: States of Exception and the Temptations of 9/11, 6 U. Pa. J. Const. L. 1001 (2004)Google Scholar (examining how the extraordinary tends to become ordinary; exceptional measures can become accepted norms as people adjust to a continuing emergency without promise of an end).

70 The details of the technocracy's design are discussed infra Part III.B.

71 The concept of an “unbiased and authoritative” body of experts drawn from diverse fields to study pressing health issues and to advise decisionmakers is not new. The proposal for a technocracy should not therefore be read as in any way critical of the prestigious and respected Institute of Medicine (IOM). See Institute of Medicine, http://www.iom.edu (last updated Feb. 25, 2011). I believe, however, that there are salient differences in the operation, composition, and missions of the two bodies such that the IOM would not be an optimal substitute for a technocracy. See infra note 118 and discussion infra Part III.B.

72 See infra note 128 and accompanying text.

73 Rawls, John, Political Liberalism 465 (Columbia Univ. Press expanded ed. 2005).Google Scholar

74 Rawls, John, The Domain of the Political and Overlapping Consensus, 64 N.Y.U. L. Rev. 233, 244 (1989).Google Scholar

75 Assuming that the emergency does not interfere with the availability of judicial review, the technocracy's advisories and explanations can provide the basis for a judicial challenge to an executive's exercise of emergency power, particularly when the panel members did not advise that the declaration of the emergency was appropriate under the circumstances. The applicable standard of judicial review in such an instance is complicated and beyond the scope of this paper.

76 See generally Berger & Moreno, supra note 20.

77 See Relyea, supra note 11; supra text accompanying note 69.

78 A pandemic may be a relatively lengthy event that can last for months or years. For example, the 1889 pandemic reappeared each year for four years, with the recurrence intervals of about one year or more. Morens & Taubenberger, supra note 26, at 680.

79 Clinton Rossiter's post-WWII study of “constitutional dictatorship” remains the classic study of presidential exercise of emergency powers. See Rossiter, supra note 11. Judicial decisions discussing the issue of presidential power absent congressional delegation include The Prize Cases, 67 U.S. 635 (1863)Google Scholar, Korematsu v. United States, 323 U.S. 214 (1944)Google Scholar, and Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 634 (1952)Google Scholar (Jackson, J., concurring). There is a robust debate regarding the foundations of executive emergency powers. Several of the issues in that debate are material to this discussion, most notably, what is an emergency that might justify extra-constitutional action; whether flexible constitutional interpretations of emergency authority risk normalizing such power in non-exigent emergencies; and whether legislation can effectively check executive overreaching. This paper does not directly address that debate, but echoes some of the arguments raised in opposition to relying upon the legislature to cabin executive discretion. See Lobel, Jules, Emergency Powers and the Decline of Liberalism, 98 Yale L.J. 1385 (1989).CrossRefGoogle Scholar

80 International law is illustrative of the divide between legislation and implementation. The Siracusa Principles impose restrictions on government derogations of human rights, including requiring a showing that normal law is inadequate; that the restrictions are appropriate and proportional; that the limits are temporary; and that there are adequate safeguards and standards of scrutiny. United Nations, Econ. & Soc. Council, Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights 3-4 (1984), reprinted in 7 Hum. Rts. Q. 3 (1985). The effectiveness of the restrictions, however, is softened by “the margin of discretion” which leaves the determination of the applicability of the principles to each contracting nation. Id. at 5. The principles’ protective efficacy is also challenged by the fact that the legitimacy of government restrictions cannot be settled prior to applying the principles in a crisis. See, e.g., Coker, R.J., Mounier-Jack, S. & Martin, R., Public Health Law and Tuberculosis Control in Europe, 121 Pub. Health 266 (2007)CrossRefGoogle ScholarPubMed (U.K.).

81 Arguably, legislation explicitly prohibiting certain executive actions could be effective, although the courts may avoid deciding a “political question” and Congress may lack the will to sanction the President's disregard of the prohibition. For example, Ronald Reagan authorized sending arms to the Nicaraguan Contras despite an explicit congressional ban on providing such aid. Historian Sean Wilentz details how Reagan escaped “scot-free” by denying he had knowledge of the action, but that some of those advising the President were indicted and convicted of offenses associated with impeding the investigation. See Sean Wilentz, The Age of Reagan: A History, 1974-2008, at 209-45 (2008). Similarly, Jules Lobel argues that Congress has been unsuccessful in enforcing presidential compliance with the restrictions it has placed on delegated powers. Citing the War Powers Resolution, Pub. L. No. 93-148, 87 Stat. 555 (1973) (codified at 50 U.S.C. §§ 1541-1548 (1982)), the National Emergencies Act, Pub. L. No. 94-412, 90 Stat. 1255 (1976) (codified at 50 U.S.C. § 1601 (1982)), the Trading with the Enemy Act, Pub. L. No. 65-91, 40 Stat. 411 (1917), and the International Emergency Economic Powers Act, Pub. L. 95-223, 91 Stat. 1626 (1977), as examples of congressional delegations that legitimate but seek to limit presidential power. Lobel concludes: “So far, less than two decades after Congress initiated these efforts, the success of these statutes … is dismal. These statutes lie in shambles, wrecked by presidential defiance, congressional acquiescence, and judicial undermining.” Lobel, supra note 79, at 1413-14.

82 Levinson, Sanford, Constitutional Norms in a State of Permanent Emergency, 40 Ga. L. Rev. 699, 736 (2006).Google Scholar

83 My arguments do not imply that legislatures should refrain from ensuring that individuals and their rights are not trampled in the imperative of the emergency moment. See discussion infra Part IV.

84 For example, supporters of emergency powers defend a delegation of rights-infringing powers by noting that the delegation is required to balance the need to protect the health of the community against respect for individual rights. See, e.g., Gostin, supra note 18, at 1159-66. In reality, however, the subjective judgment of the government decision maker controls the outcome of this balancing between the many and the few. Such a decision is most difficult to challenge, let alone defeat, on judicial review.

85 Letter from Thomas Jefferson to John B. Colvin, supra note 62, at 1184.

86 Levinson, supra note 82, at 750.

87 Legislation can operate to undermine public trust in at least two ways. One is where the public perceives that the executive's interpretation of a statute as authority for action is at best a “stretch.” More problematic is when the executive's action appears incompatible with the statutory authorization. In his typology of challenged presidential power, Justice Jackson observes that in the latter instance “what is at stake is the equilibrium established by our constitutional system.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637-38 (1952) (Jackson, J., concurring). Where an emergency prevents immediate judicial resolution, such government claims are unlikely to foster public compliance.

88 While a state of emergency should not bar judicial review where the courts are operational, such review can be particularly problematic when courts lack the expertise to evaluate the technical evidence, such as the scientific and medical data, upon which the declaration is based. Where evaluation of the executive's action depends upon disputed facts, judges will be most unlikely to overturn executive action in the midst of a crisis. On the other hand, a court that upholds the executive's derogation of rights risks creating precedent that may have lasting negative consequences. See, e.g., Pierce O’Donnell, In Time of War: Hitler's Terrorist Attack on America (2005). The author argues that President Roosevelt's wartime maneuvering that influenced the Supreme Court to uphold the conviction by a secret military tribunal of suspected Nazi saboteurs was a disgrace. Id. at xiii-xiv, 213. Despite legal scholars’ widespread criticism of the decision in Ex parte Quirin, 317 U.S. 1, (1942), the Bush Administration cited it as precedent to support its constitutionally controversial proposal for military tribunals. Id. at 303-04.

89 See Fiss, Owen, Law Is Everywhere, 117 Yale L.J. 256, 275-77 (2007)Google Scholar. Fiss notes that the strong tradition of judicial deference fails to distinguish between technical assessment and evaluation of whether the proposed actions are justified given the harm to fundamental values. While Fiss focuses on issues of national security and deference to the military, his arguments are applicable to deference to the president on matters of national security. Regarding the U.S. Supreme Court's standard of “strict scrutiny” when government action threatens a fundamental value, Fiss notes, “Unfortunately … the Court applies strict scrutiny only intermittently, and hardly ever in the context of war.” Id. at 277. Similarly, a major pandemic or bioterrorist attack with an infectious agent is not likely to evoke robust judicial review during the height of the threat.

90 Executive defiance may take several forms. The executive may claim as a matter of principle the legislature lacks the authority to confine his discretion to take a particular action; he may announce his intention not to comply, either by issuing a signing statement or a press release; or he may simply ignore the limiting language while embracing the delegated power. See Barton Gellman, Angler: The Cheney Vice Presidency 144-54 (2008), for examples of the Bush Administration's defiance of legislative constraints, notably in its decision to engage in warrantless wiretapping.

91 Jacobson v. Massachusetts, 197 U.S. 11, 25-26 (1905) (inherent state power); see also Rossiter, supra note 11; cases cited supra note 79.

92 Similar terms appear in the MSEHPA. See MSEHPA, supra note 53, § 104(m) (“imminent threat,” “high probability of harm[]”); id. § 405(a) (“serious … disability,” “significant risk of substantial future harm”).

93 The policy mistakes of scientists and health officials can be instructive for lawmakers. In 1976 government health officials suspected that the deadly 1918 influenza was reappearing. They initiated development of a vaccine and launched a historic nationwide vaccination campaign. They did not evaluate whether the threat of the disease actually warranted the vaccination campaign. Several people suffered a rare neurological disorder after being vaccinated, some even died, while the epidemic never appeared. The government suffered a serious loss of credibility that continues to haunt it. See Richard Neustadt & Harvey Fineberg, The Epidemic that Never Was: Policy-Making & the Swine Flu Affair (1983); see also Andrew Pollack, Fear of a Swine Flu Epidemic in 1976 Offers Some Lessons, and Concerns, Today, N.Y. Times, May 8, 2009, http://www.nytimes.com/2009/05/09/health/09vaccine.html; Rita Rubin, Lessons Learned From the 1976 Swine Flu ‘Fiasco,’ USA Today, May 5, 2009, http://www.usatoday.com/news/health/2009-05-05-swine-flu-1976_N.htm.

94 Coker, Richard & Martin, Robyn, Conclusion: Where Next?, 120 Pub. Health (Supplement 1) 81, 86-87 (2006) (U.K.).Google Scholar

95 See, e.g., McGarity & Wagner, supra note 42 (noting that industry-funded research appears to impact the direction of scientific findings); Neustadt & Fineberg, supra note 93, at 25, 38-39 (detailing how the opportunity to promote preventive health influenced Centers for Disease Control experts to miscalculate the likelihood of a deadly flu pandemic).

96 Lawmakers optimally want to ensure plausible deniability for their authorization of executive action that turns sour. They seek to avoid having to admit that an unfettered delegation was a mistake, which can open them to an accusation of “flip flopping.” Classic examples of explanations that engendered the latter charge are Senator John Kerry’s: “I actually did vote for the $87 billion before I voted against it,” Did Kerry Vote “No” on Body Armor for Troops?, FactCheck.org (Mar. 16, 2004), www.factcheck.org/article155.html (inelegantly explaining his war funding votes); and Senator Hillary Rodham Clinton’s: “[I]f I had known then what I know now, I never would have voted that way,” Fernando Suarez, Clinton Defends Iraq Vote: Says “I’m Willing to Be Held Accountable,” CBS News, Apr. 6, 2008, http://www.cbsnews.com/8301-502443_162-3996704-502443.html (claiming that she was misled as to the purpose of her vote on The Authorization for the Use of Military Force Against Iraq Resolution).

97 Legislators tend to generalize emergencies. The types of responses appropriate for different emergencies, such as a geographically contained natural disaster or bomb attack, may be quite different from a novel pandemic or attack using a contagious biological agent. Thus, if legislators were serious about providing guidance and preventing potential abuse, they would need to address which extraordinary powers should be available in each type of emergency.

98 See, e.g., Blum, supra note 49; Hodge et al., supra note 49; Pestronk et al., supra note 49.

99 The MSEHPA immunity provisions are representative. See MSEHPA, supra note 53, § 804. It is particularly ironic that the Model State Emergency Health Powers Act appears more concerned with immunizing officials and responders from legal liability than it is with protecting individuals’ constitutional rights. Rather than merely a redundancy of Good Samaritan and sovereign immunity doctrines, such provisions reduce the disincentives against abusing power. See also Mariner, Annas & Parmet, supra note 10, at 377-78.

100 See Khan, supra note 4, at 331-37 (arguing that the expanding doctrine of immunity for official misconduct based on national security defense undermines liability and should not extend to public health).

101 While the immunity usually does not extend to acts of gross negligence, the injured citizen has a steep burden of proof to recover under such a standard.

102 Mariner, Annas & Parmet, supra note 10, at 351.

103 Berger and Moreno make a similar point but frame the issue a bit differently. In opposing what they call the coercive model of bioterrorism response, they observe that “[c]reating new legal powers does not cost any money” prior to an attack. “The high costs of the model arise from its post-attack implementation, costs that are exacerbated by low levels of voluntary compliance stemming from the use of coercive measures; in the short term, the coercive model actually appears to be the less costly option.” Berger & Moreno, supra note 20, at 307.

104 Edward P. Richards III, Fighting H1NI: Why Laws Are Not the Answer, Jurist (May 2, 2009), http://jurist.law.pitt.edu/forumy/2009/05/fighting-h1n1-why-laws-are-not-answer.php.

105 MSEHPA, supra note 53, § 604(b)(6).

106 A report to the CDC on the lessons from the SARS epidemic identified three main elements upon which the ability to implement a quarantine depended: (1) laws establishing mechanisms for regulating travel in and out of the affected area; (2) a public health infrastructure to coordinate the public health response among all levels of government domestically and internationally; and (3) ancillary services and logistical support, such as law enforcement, wage replacement, delivery systems for food and medical supplies, public education, and communications, among others. Each of these elements requires significant investment of resources. Inst. for Bioethics, Health Policy and Law, Univ. of Louisville Sch. of Med., Quarantine and Isolation: Lessons Learned from SARS 126 (2003), http://www.iaclea.org/members/pdfs/sarsreport.Rothstein.pdf.

107 For an argument that mass quarantine is not effective, see Annas, supra note 7, at 227. Others maintain that quarantine may be effective when used early in an outbreak. See Gostin, supra note 18, at 1161; Page, Erin M., Balancing Individual Rights and Public Health Safety During Quarantine: The U.S. and Canada, 38 Case W. Res. J. Int’l L. 517, 536 (2007)Google Scholar (“During the SARS outbreak in 2003, the World Health Organization acknowledged that the use of quarantines combined with surveillance and travel restrictions, ‘sharply reduced the adverse effects of the outbreaks.’”).

108 See, e.g., Markovits, Daniel, Quarantines and Distributive Justice, 33 J.L. Med. & Ethics 323 (2005)CrossRefGoogle ScholarPubMed (questioning as a theoretical matter the fairness of medical quarantines that violate a basic egalitarian principle of distributive justice).

109 While the executive need not make each individual decision, his responsibility for determining that quarantine is an appropriate response to the emergency should be inescapable.

110 Lasker, supra note 7.

111 Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001, Pub. L. No. 107-56, 115 Stat. 272 (2001).

112 For a recap of the Act's development and passage, see Paul Blumenthal, Congress Had No Time to Read the USA PATRIOT Act, Sunlight Found. Blog, (Mar. 2, 2009, 2:03 PM), http://sunlightfoundation.com/blog/2009/03/02/. See also AStarSpangledGirl, Ron Paul - Patriot Act NOBODY READ IT!, YouTube (July 7, 2009), http://www.youtube.com/watch?v=DAlacS-1BC8.

113 For example, Attorney General John Ashcroft made a multi-city “campaign” tour on behalf of extending the Act. He dismissed fears of potential abuse of power with such claims as: “If your idea of a vacation is two weeks in a terrorist training camp in Afghanistan, you might be a target of the Patriot Act. If you have cave-side dinners with a certain thug named bin Laden and if you enjoy swapping chemical weapons recipes from your joy of Jihad cookbook, you might be a target of the Patriot Act.” Elizabeth Stawicki, Ashcroft Defends Patriot Act, Minn. Pub. Radio (Sept. 19, 2003), http://news.minnesota.publicradio.org/features/2003/09/19_stawickie_ashcroft.

114 Inst. of Med., The Future of the Public's Health in the 21st Century 46 (2002). The report also notes that “The governmental public health infrastructure is built on a legal foundation replete with obsolete and inconsistent laws.” Id. at 26. A 1999 survey of local public health leaders nationwide found that they were only performing about a third of the functions necessary for protecting the public's health, rating themselves at thirty-five percent out of 100. Laurie Garrett, Betrayal of Trust: The Collapse of Global Public Health 484 (2000). Although public health funding increased after the attacks of 9/11, much of it was directed to bioterrorism defense programs that had marginal benefit to most core public health functions. David Rosner & Gerald Markowitz, Are We Ready? Public Health Since 9/11 70-71 (2006). The authors argue that the absence of a strong public health infrastructure leaves America less able to respond to terrorist attacks or public health emergencies, and that our inability to reinvigorate public health is in part due to shifting resources to bioterrorism and emergency preparedness.

115 Advocates of “worst-case-scenario” funding argue that the investment has a “dual-use” since the discoveries are useful in other public health enterprises. The extent to which the funds enhance or divert funds from measures with more direct public benefit is the subject of debate in the academic literature, but has not merited much public discussion. See, e.g., Annas, George J., Bioterror and “Bioart”—a Plague o’ Both Your Houses, 354 New Eng. J. Med. 2715 (2006)CrossRefGoogle ScholarPubMed; Chyba, Christopher F., Toward Biological Security, 81 Foreign Aff. 122 (2002)CrossRefGoogle Scholar; Cohen, Hillel W., Gould, Robert M. & Sidel, Victor W., Letter to the Editor, Bioterrorism “Preparedness”: Dual Use or Poor Excuse?, 115 Pub. Health Rep. 403 (2000)Google ScholarPubMed; Thomas May & Ross Silverman, Bioterrorism Defense Priorities, Science, July 4, 2003, at 17. Annas observes that “[T]he public is currently more victim and bystander than participant [in this debate] and seems much more likely to be harmed than helped by much of the research.” Annas, supra, at 2719.

116 See generally Rosner & Markowitz, supra note 114. In November 2005 President Bush announced he was committing funds to prepare for a possible H5N1 (Avian) Influenza pandemic; $644 million was targeted to government levels to improve their response to a pandemic. Former Health and Human Services Secretary Tommy Thompson pointed out that by comparison, the Bush Administration had thus far provided $5 billion to enable governments to respond to bioterrorist attacks. Interview with Tommy Thompson, Former Secretary, Health and Human Services, in Cambridge, Mass. (Nov. 4, 2005).

117 For examples of consequences that were contrary to the statutory intent, see Steven D. Levitt & Stephen J. Dubner, Super Freakonomics: Global Cooling, Patriotic Prostitutes, and Why Suicide Bombers Should Buy Life Insurance 138-39 (2009) (explaining that the Endangered Species Act endangered the species it sought to protect).

118 The Institute of Medicine's study committees might also serve as a model for the technocracy in developing credibility its cross disciplinary deliberations leading to policy recommendations grounded in scientific considerations. There are, however, some key differences in the proposed operation of the technocracy, notably that its deliberations should not be secret and that it not be required to reach consensus. See Our Study Process, Institute of Medicine, http://iom.edu/About-IOM/Study-Process.aspx (last updated Nov. 20, 2009); see also supra Part II.B.

119 See Wessel, supra note 3, at 271.

120 While some might argue that the Fed's influence is strengthened by it having binding authority, the nature of the technocracy's mission and relationship to the constitutional responsibilities of the chief executive do not favor giving the technocracy binding power.

121 See Wessel, supra note 3, at 45.

122 A precise number for membership is immaterial to this discussion. Based upon descriptions of the inner workings of the United States Supreme Court, I am drawn to think that nine members might prove workable. See generally Ruth Bader Ginsburg, Princeton University Public Lecture Series: On the Lighter Side of the U.S. Supreme Court: Customs and Habits that Promote Collegiality Among the Justices (Oct. 23, 2008), http://hulk03.princeton.edu:8080/WebMedia/flash/lectures/20081023_publect_ginsburg.shtml (describing, among other things, how the Court works together in an environment of strong differing opinions).

123 I see no reason that members should not be eligible for reappointment; the important point is not to make the appointment lifetime, or too short as to be political, or so long as to remove the accountability associated with reappointment.

124 See McGarity & Wagner, supra note 42, at 186-87.

125 Id. at 260.

126 In particular, sharing information and expertise can contribute to the quality and accuracy of the technocracy's analysis so long as the collaboration does not compromise the technocracy's perceived independence or credibility. The technocracy must be particularly sensitive to avoiding the appearance of participating in or of promoting an executive's political agenda. Thus, it should not share membership with the President's Council of Advisors on Science and Technology.

127 Some reorganization and elimination of duplication could help fund the technocracy's operation.

128 My expectation for the influence of the technocracy experts echoes the arguments of Adrian Vermeule in favor of agencies and courts giving “controlling weight” to recommendations within the expertise of an agency's expert advisory panel. He argues that such decisions have a higher probability of correctness and thus should be disregarded only if the decider can offer valid reasons that the expert recommendations are “epistemically suspect.” Vermeule, Adrian, The Parliament of the Experts, 58 Duke L. J. 2231, 2234 (2009)Google Scholar. Although Vermeule is addressing the role of the reviewing court, his recommendations are applicable to how a president should use the advice of the expert technocracy and how the public might perceive the legitimacy of a declaration in conflict with the technocracy's recommendation. In making his decisions advised by the technocracy, the president might also want to reflect on how he will account for them in court or congressional oversight proceedings.

129 Leaders: The Pandemic Threat, Economist, May 2, 2009, at 11. My discussion here is not meant to disparage pandemic planning or to fault the planners. Government officials at all levels have produced or facilitated the production of numerous reports and action plans and conducted simulations, both physical and computer-based. Improving government response also includes law reform, particularly to enhance the effectiveness of the delivery of services and the capacity to meet human needs. Plans for ensuring the operation of the judicial system and familiarizing officials with the applicable laws are a critical part of this effort.

130 The experience in New Orleans following the levee break caused by Hurricane Katrina challenges this planning assumption. Hurricane planners claim they did not foresee the extent of the breakdown in public order that occurred in the storm's aftermath. At a minimum, they failed to account for so many law enforcement personnel leaving the city. See generally Select Bipartisan Comm. to Investigate the Preparation for and Response to Hurricane Katrina, supra note 39, at 359-62 (summarizing problems, including confusing messages from officials and failure to learn from past experiences).

131 Some experts in the public health field have questioned the value of computer models and simulations in pandemic planning. See supra notes 43-48 and accompanying text. For an account of the near collapse of the stock market occasioned by overreliance on models by Nobel laureates and Harvard Business School professors, among others, which did not account for human behavior, see Lowenstein, supra note 3.

132 The reasons for the financial crisis of 2008 are significantly more complex than I relate here. Many of the notable reactions of government leaders, however, are simply human. Even well-meaning politicians make mistakes, some because they lack adequate information or sufficient foresight, others because they conflate their interests in self-promotion with what will best protect the public's interest. In retrospect, examples of unpredictable responses that come to mind are: Senator John McCain's claim that he had to suspend his presidential campaign to return to Washington, apparently so that he could be physically proximal to the decision-making powers; Secretary Henry Paulsen's decision to seek authorization for a $750 billion financial bailout by asking Congress to pass a four-page bill giving him unbounded powers over the expenditure of the monies; and the initial vote by a majority of Congress to reject providing government assistance to prevent systemic melt down. See, e.g., Cohan, supra note 3; Lawrence McDonald & Patrick Robinson, A Colossal Failure of Common Sense: The Inside Story of the Collapse of Lehman Brothers (2009); Andrew Ross Sorkin, Too Big To Fail (2009); Wessel, supra note 3.

133 See, e.g., Cohan, supra note 3; Lowenstein, supra note 3; McDonald & Robinson, supra note 132; Wessel, supra note 3.

134 Although enacted piecemeal, the technocracy can collect them in a central register.

135 The inspiration for this presumption comes from Childress and Bernheim, who speak of an idealized “presumptive rights” paradigm of public health emergency preparedness. In particular, they propose that government invest in a civic engagement process in which all stakeholders, community as well as government officials, affirm the values that should underlie the difficult decisions arising during an emergency. The process would also promote “relationships built on common understandings, developed over time,” which are essential for the promotion of public trust. They claim that this approach will enable the community to understand the choices facing government officials while enabling the latter to assure the community that they will treat them as collaborators rather than subjects of a paternalistic regime. See Childress, J.F. & Bernheim, R. Gaare, Public Health Ethics: Public Justification and Public Trust, 51 Bundesgesundheitsbl-Gesundheitsforsch-Gesundheitsschutz 158, 162 (2008)CrossRefGoogle ScholarPubMed (Ger.). The proposed fine print presumption is not dependent upon the accuracy of their hypothesis although it would be worth legislative consideration and the appropriation of funding for such a process.

136 This discussion assumes that community protection need not always trump individual rights, although such is the likely, if not instinctive, outcome of balancing. See Annas, supra note 44, at 351. I also reject the argument that officials can achieve an optimal balance of protecting the community and an individual's rights by mandating a full panoply of due process protections following what would appear to be an infringement of an individual's rights. See Gostin, supra note 18, at 1159-68. While both of these assumptions are controversial, they are reasonable in the context of this discussion because I am examining the issues from the perspective of executive decision making rather than judicial review, in which judges may be more inclined to defer to the executive's decision. As the crisis unfolds, an executive will likely incline towards protecting the majority even at the expense of the minority or individual. Moreover, as a practical matter, a post-deprivation remedy, such as a due process hearing days after issuing a quarantine order, does not undo the harm to the individual if the detention was unwarranted. Thus, the fine print serves in part to direct (or redirect) the executive's decision-making process toward giving additional weight to rights protection.

137 See supra text accompanying notes 105-106.

138 See supra notes 73-74 and accompanying text.

139 See supra notes 135-136 and accompanying text.

140 Cf. Anthony Lewis, Go Directly to Jail, N.Y. Rev. Books, Oct. 22, 2009, at 42, 43 (citation omitted) (observing that offering a full set of procedural rights to a few may deprive many more of any such rights).

141 Legislators should also ensure that if individuals are asked for permission to retain personal data that the request be free of any coercion. At a minimum, this means that legislators must prohibit consent forms allowing for post-emergency retention of data as a condition for medical consultation and treatment during the emergency.

142 An accountability process is incomplete without a mechanism to hold the President accountable for gross errors of judgment or wrongdoing. The reluctance of Congress to embrace a robust impeachment doctrine as a remedy for significant executive misconduct leaves the public to question whether the President is “above the law.” This belief feeds public distrust of government. The specific issues associated with accountability deserve examination. See Jeffrey K. Tulis, Impeachment in the Constitutional Order, in The Constitutional Presidency 229-46 (Joseph M. Bessette & Jeffrey K. Tulis eds., 2009). They are, however, beyond the scope of this discussion.

143 It may be appropriate to extend some level of immunity to service providers, both public and private, for harm unintentionally caused by conduct within the scope of the Good Samaritan doctrine. Legislatures might, however, consider creating a special process to review and consider claims of harm. Such an arrangement could ensure that an extended judicial process does not thwart legitimate claims of injury and minimize the problem of moral hazard associated with allowing false claims.

144 See generally Mariner, Wendy, Annas, George & Glantz, Leonard, Massachusetts, Jacobson v.: It's Not Your Great-Great-Grandfather's Public Health Law, 95 Am. J. Pub. Health 581 (2005).CrossRefGoogle Scholar