In yet another delivery of political gamesmanship when the order clearly asked for “good governance,” three northern Virginia members of the GA have, in effect, asked the governor to declare martial law and seize control of Virginia’s airports and seaports. Specifically, Sen. Dick Black, Del. Bob Marshall (why is it always Bob Marshall?) and Del. Mark Berg, have sent a joint letter to Gov. Terry McAuliffe, telling him that Ebola in America is Obama’s fault (because, you know, everything is Obama’s fault), and that he must use “the police powers of Virginia” to close our airports and seaports to any vehicle arriving from “Ebola affected areas” (presumably including the state of Texas). They state that fever-screening is not reliable and that the governor should take note that, “government travel restrictions were used to limit Severe Acute Respiratory Syndrome (SARS).” These lawmakers urge the governor to take state control over airlines (and shipping lines), even if that means being taken to court by those airlines (and shipping lines) and/or the federal government (because, you know, what they are asking him to do would be illegal).
The middle third of the letter cites a few court cases for the proposition that “police power” can be used to protect a state from a health crisis. In particular, they rely on Justice James Wayne’s opinion in what are known as the “Passenger Cases,” which addressed the right of states to tax carriers on a per-passenger basis for new arrivals (the states lost, btw).
Well, as though we didn’t already have enough evidence that Republican officials should stop messing around with medical issues. this is yet another example of ill-informed men jumping at the chance to use fear in the hope of scoring a political point. See, even though the advice offered to the governor is both legally and scientifically the equivalent of manure, one really must not be distracted from the point of the letter by that advice. The point of the letter is to blame the governor for something (and, because it is currently Republican high law, to also blame Obama for
everything something). But, let’s deconstruct some of it, anyway.
First, the “police powers of Virginia” do not belong to the governor. That phrase refers to the power of the state to pass laws. But governors don’t pass laws; legislatures do. So the power these legislators are calling on the governor to use is theirs, not his.
Second, even if Virginia has “police powers,” the right of the state to impose a ban on travel would implicate interstate commerce, raising the high likelihood that such a ban would be unconstitutional. That cite to Justice Wayne’s opinion? Well, he was one of five justices who each concurred separately in that ruling. The only thing they agreed on was the unconstitutionality of the tax statute in question. Each spoke for himself on everything else. Moreover, Wayne wrote his opinion in 1849. Slightly more recently (that is, about a hundred years later) the series of cases informally known as the Commerce Clause decisions made it plain that it is Congress that regulates travel into and out of the states. Even if governors had police power and McAuliffe used it as suggested, that court challenge Black, Marshall, and Berg predict would be virtually certain, with an equally certain outcome.
Okay, so they’ve got the law wrong, but isn’t this an emergency? Shouldn’t McAuliffe just seize control, maybe with the National Guard or something? Isn’t it time for the equivalent of martial law, even if it’s unlawful martial law?
No, it is not. Not that it ever is, but their suggested use of that martial law would, in fact, be useless. The only governments that actually imposed travel restrictions during the SARS outbreaks were foreign governments, not the United States. One of them was that model of democracy, the People’s Republic of China. Well, those godless commies may not understand individual liberties, but they know a thing or two about how to use government power in the name of the good of the people, right? And what were those travel restrictions they used, and that we need instead of fever-screening? They used fever-screening. Travel restrictions are recommended as a way to contain the spread of a virus like SARS, but not on entire airplanes. The restrictions that work are on potentially infected individuals. The SARS crisis taught us that.
Yet, Ebola is just so scary. Doesn’t it call for more aggressive restrictions than those that defeated SARS? No. The Chief of the CDC explicitly states that blanket restrictions will only make things worse.
We don’t want to isolate parts of the world, or people who aren’t sick, because that’s going to drive patients with Ebola underground, making it infinitely more difficult to address the outbreak.
Tom Frieden, M.D., director of the U.S. Centers for Disease Control and Prevention.
So why would our politicians do this? Why cite bad law and misrepresent historical fact? Why ask the governor for something he cannot legally do, that would only make things worse? What could the reason really be?
I suspect that, if you are as tired of politics masking as policy as I am, you probably know the answer. If you’re not, you probably voted for one of these guys: