Pandemic and Judge Alito

Yesterday, President Bush delivered an address at the National Institutes of Health describing the Administration’s preparation for the flu pandemic that most people believe is only a matter of time before it happens. What is interesting is that the possibility of a flu pandemic and its impact on American life involves real questions of rights of citizens in a public health emergency. However, such questions, appropriate fodder for judicial nomination hearings, are unlikely to be presented to Judge Alito.

Once again, the debate over a Supreme Court Justice will focus on events and law of the past rather than issues of the future. I have blogged on these concerns before, once on the wrong questions being asked about affirmative action and once on the future issues of abortion. Once again, people are clamoring about Judge Alito's views on issues from a retrospective rather than prospective viewpoint. But the flu pandemic scenario presents a fantastic opportunity to ask questions about the future, about the role of government in public health emergencies and civil liberty issues.

In his speech, President Bush noted three main goals of the Administration:

Our strategy is designed to meet three critical goals: First, we must detect outbreaks that occur anywhere in the world; second, we must protect the American people by stockpiling vaccines and antiviral drugs, and improve our ability to rapidly produce new vaccines against a pandemic strain; and, third, we must be ready to respond at the federal, state and local levels in the event that a pandemic reaches our shores.
The first and second goals are laudable and while they may present interesting questions of governmental priorities, they don't concern me as much.

It is the governmental response that presents the highest level of constitutional issues. Already there has been talk of possible quarantines enforced by the military. There will no doubt be restrictions on travel and decisions that have to be made regarding prioritization of care. All of these decisions and actions impact our rights and these kinds of questions should be presented to Judge Alito.

Of course, I don't expect Judge Alito to answer such questions in detail since these questions are, by their very nature, hypothetical and if the events come to pass, cases are likely to come before the Court. Having said that, Judge Alito can and perhaps should, discuss what he views as the powers and role of the federal government in this situation.

For example, normally flu epidemics are a public health issue. Is there a point in which a public health emergency can become a national security issue? If so, where is that line and what are the implications for such a transition in status? Can the President, for example, ban air travel? Can he prohibit travel all together? Can he use the military to enforce a quarantine?

Given that Americans enjoy a practically unlimited right to travel within our borders, the fundamental right of travel is a core freedom that may demand the Supreme Court apply strict scrutiny, that is the government must have a compelling reason for their action and the measures taken must be narrowly tailored to achieve that end. Thus, a quarantine, whereby people living in a given locale are prohibited from traveling, may be permissible to prevent the spread of a contagious killer virus, but would a general ban on travel be Constitutional?

Judge Alito may also be able to shed some light on his thoughts regarding the role of the military in such an emergency. Following Hurricane Katrina, President Bush floated an idea about the military having a direct role in natural disaster response. Issue of posse comitatus were raised in that context? Surely, such questions would exist in a public health pandemic as well. Is it permissible for the President to direct the military to enforce quarantines? It is possible for state governors to use the National Guard for such activities, but if the National Guard is nationalized by the President, they act more as the military and can they be used to enforce bans on travel.

The enforcement of quarantines presents another interesting question regarding the relationship between the federal and state governments. If the flu epidemic breaks out in say Atlanta, can the President order the national guard from South Carolina to Atlanta to help with the outbreak? Can he do so without permission from South Carolina's governor?

These are just some of the major and complicated questions regarding the limitation of rights and the role of the various levels of government in the case of a flu pandemic. These questions are appropriate to ask of a Supreme Court nominee. While specific answers are not likely, the mere asking of the question can bring about some real debate.

Posted by Matt Johnston at November 2, 2005 10:35 AM
Comments
Comment #89706

Matt,

How is “No Comment” going to enlighten us on any of the issues that we could pose to a Supreme Court nominee.
It’s gotten to the point where no government official has to answer questions.
Especially Supreme Court nominees.

Posted by: Andre M. Hernandez at November 2, 2005 10:44 AM
Comment #89715

Matt,

Don’t get your hopes up. The senators can’t ask thought-out, intelligent questions and let him answer… They wouldn’t be time left to make their speeches!
Apparently, the whole point of the hearings is to get the views of the senators out in the open. Just look at the Roberts hearing. They did more talking than he did!

Posted by: TheTraveler at November 2, 2005 11:07 AM
Comment #89722

Bravo. Great ideas. Great questions that should be answered, but as was already cynically put out, reality may play out differently. Great article if for no other reason than it presents sound ideas instead of just sound.

Posted by: johndixon at November 2, 2005 11:33 AM
Comment #89742

This topic would be danced around by any competent candidate like Nureyev doing the Nutcracker.

Although, it could give insight into their thinking, given that there has not been a successful challenge to the Patriot Act, I doubt there would be a realistic challenge to extraordinairy temporary powers granted by Congress, should a domestic pandemic occur.

Finally, from the partisan end of things, I hope we don’t have another catasrophe during this administration. I don’t think we can afford more no-bid contracts and another tax cut for the rich.

Posted by: Dave at November 2, 2005 12:10 PM
Comment #89745

Leaving aside questions for Alito for a moment…
Bush:

second, we must protect the American people by stockpiling vaccines and antiviral drugs, and improve our ability to rapidly produce new vaccines against a pandemic strain;

Matt Johnson:
“interesting questions of governmental priorities,”

Yes, I’m also rather interested in governmental priorities surrounding a possible bird flu pandemic, because wealthy Republican’s, and more specifically Defense Secretary Rumsfeld’s stake in Gilead (makers of the Tamiflu vaccine), is valued at being between 5 million and 25 million, and in the past 6 months the looming pandemic has raised stock in the company from $35 to $47.

Posted by: Adrienne at November 2, 2005 12:13 PM
Comment #89764

Adrienne:

You really ought to post, or at least read the final three paragraphs of your link. It says, and I quote:

“Rumsfeld recused himself from any decisions involving Gilead when he left Gilead and became Secretary of Defense in early 2001. And late last month, notes a senior Pentagon official, Rumsfeld went even further and had the Pentagon’s general counsel issue additional instructions outlining what he could and could not be involved in if there were an avian flu pandemic and the Pentagon had to respond.

As the flu issue heated up early this year, according to the Pentagon official, Rumsfeld considered unloading his entire Gilead stake and sought the advice of the Department of Justice, the SEC and the federal Office of Government Ethics.

Those agencies didn’t offer an opinion so Rumsfeld consulted a private securities lawyer, who advised him that it was safer to hold on to the stock and be quite public about his recusal rather than sell and run the risk of being accused of trading on insider information, something Rumsfeld doesn’t believe he possesses. So he’s keeping his shares for the time being.”

A full review of your link shows that while Rumsfeld owns the stock, he is not making any decisions in regard to it, and has actually taken steps to distance himself from potential decisions. One thing for sure….had he sold it, you’d be one of the first on the insider trading bandwagon.

But how about looking to a solution, rather than simply searching, once again, for a negative outlook. What would you suggest be done about a potential pandemic? Do you think it merits prior planning or do you think the fears are overblown?

In advance now, what are your suggestions? It is much more difficult to lay out a position on the front end, but its also much more helpful in understanding your point of view. I look forward to hearing your thoughts.

Posted by: joebagodonuts at November 2, 2005 12:48 PM
Comment #89800

jbod:
“One thing for sure….had he sold it, you’d be one of the first on the insider trading bandwagon.”

Rumsfeld could have sold it, but been very public about why he felt he should without risking that charge. But by keeping it, he’s made at the very least a million dollars so far — and the longer he holds it, the more he stands to make a killing off of the potential pandemic. (gallows humor-style pun intended!)

“What would you suggest be done about a potential pandemic?”

In this case, I think the president is right to say we need to be: “stockpiling vaccines and antiviral drugs, and improve our ability to rapidly produce new vaccines against a pandemic strain;” However, it makes me unconfortable and suspicious that in doing so, he is making his Defense Secretary even richer than the man already is (which is very).

“Do you think it merits prior planning”

Of course. But I can’t help but wonder why some of this planning isn’t already in place. Immediately after 9/11, national security people should have been entertaining the thought that terrorists might decide to use an epidemic to wipe out large numbers of American’s.

“or do you think the fears are overblown?”

Not at all. My dad (an epidemiologist) has been saying for many years that we’ve been extremely lucky, because he believes we’re long overdue for another worldwide pandemic.

Posted by: Adrienne at November 2, 2005 2:25 PM
Comment #89841

Adrienne,

In this case, I think the president is right…

Wow, I never thought I’d see you post that! ;-)


My guess, though, is that the bird flu will turn out to be nothing but media (and political) hype and Rumsfeld will loose the money back when the “pandemic” fails to occur. He will be close to his original financial status, we will all be alive, and Bush will have again wasted a chunk of our hard-earned money.
In the mean time, the Democrats will continue to complain that Bush isn’t spending enough on the problem whilst they complain about the deficit. Neither side will be able to make much political hay of this issue.

Posted by: TheTraveler at November 2, 2005 3:56 PM
Comment #89844

Oh no! The next Liberal Conspiracy theory is launched! Bush planned the H5N1 pandemic so Rummsfeld could get rich. ROFLMAO. Remeber folks ya heard it here first. LOL

Posted by: pige at November 2, 2005 4:00 PM
Comment #89846

pige wrote:
Oh no! The next Liberal Conspiracy theory is launched! Bush planned the H5N1 pandemic so Rummsfeld could get rich. ROFLMAO. Remeber folks ya heard it here first. LOL
____________________________________

Yeah and will Haliburton get a no bid contract? Ha!

Posted by: rahdigly at November 2, 2005 4:05 PM
Comment #89848

I guess Forrest Gump was right…

Posted by: Dave at November 2, 2005 4:07 PM
Comment #89861

Traveler:
“Wow, I never thought I’d see you post that! ;-)”

I know, me either. But I guess even Bush has to acknowledge that preventing mass deaths from disease might be a good idea.

pige:
“Oh no! The next Liberal Conspiracy theory is launched! Bush planned the H5N1 pandemic so Rummsfeld could get rich. ROFLMAO. Remeber folks ya heard it here first.”

Uh, one small point, it can’t be a LIBERAL Conspiracy theory if it’s being launched by a Rightwinger.

Dave:
“I guess Forrest Gump was right…”

After reading pige’s post, I’m just going assume you meant when LBJ asks where he got his bullet wound, and Gump replied “In the but-tocks”. :^)

Posted by: Adrienne at November 2, 2005 4:59 PM
Comment #89894

I am surprised no Conservative has started to whine about the United Nations in this thread. I suppose Republicans don’t know the UN is incharge in coordinating the responses of the world. Curious they don’t complain what with the oil for food and such. Aren’t they afraid the UN will waste the 7 billion dollars the Shrub promised?

Posted by: Aldous at November 2, 2005 7:55 PM
Comment #89916
I know, me either. But I guess even Bush has to acknowledge that preventing mass deaths from disease might be a good idea.

I think he just realized how many fetuses could be killed by the bird flu. Then again, fetuses come from eggs just like birds, maybe the fetuses are the flu? Or maybe it’s just the lazy welfare fetuses that start the flu? Stupid lazy welfare flu-bearing terrorist fetuses of mass destruction!!

Posted by: Taylor at November 2, 2005 9:05 PM
Comment #89921

Yikes!!!

Posted by: rahdigly at November 2, 2005 9:41 PM
Comment #90008

Aldous:

Aren’t they afraid the UN will waste the 7 billion dollars the Shrub promised?

Yet again you misunderstand an issue. It is in this kind of situation that the UN has done a decent job. When they are administering aid or helping in medical situations, the UN is capable of doing good things. In the Oil for Food scandal, they showed an inability to handle things appropriately, but in things like UNICEF, they’ve done well.

The problem with the UN lies when they overreach their capabilities. They have shown little ability to handle situations like the Congo, Rwanda, Oil for Food in Iraq etc. It is in issues like these where the UN has failed to accomplish much, and where they likely do not have the structure or capability to do so.

Aldous, once you recognize this difference, you’ll have a better understanding of how some on the right think of the UN. Until then, you will continue to mischaracterize the comments.

Posted by: joebagodonuts at November 3, 2005 7:53 AM
Comment #90038

Taylor:
“Stupid lazy welfare flu-bearing terrorist fetuses of mass destruction!!”

:^D
I imagine in one of his speeches this could end up as:

The Aviator Fetuses have a strategy. We understand that. And we have a strategy. And part of the strategy is to form an information sharing coalition and to find people before they hurt…

Posted by: Adrienne at November 3, 2005 10:05 AM
Comment #90068

And here I thought the reason that the Right didn’t like Miers was because she doesn’t have a past paper trial to see how she stands on issues. Not how she might rule in future cases.
However it looks like now that before being comfirmed a nominee has to rule on cases that he/she might not ever see.
And the left aint no better.
I have a BIG problem with a court nominee that can tell you in advance how they’d rule in a case that hasn’t even come before the court yet.
ALL cases NEED to be judged on their mertit and what the Constitution says (Not what someone wants to to say).
If someone can tell how they’d rule BEFORE thay here a case then THEY DON’T NEED TO BE ON THE BENCH OF ANY COURT.

Posted by: Ron Brown at November 3, 2005 11:41 AM
Comment #90069

Damn I preview to correct spelling and still don’t get it right.
It’ merit not mertit.

Posted by: Ron Borwn at November 3, 2005 11:45 AM
Comment #90085

Ron,

Until now, I don’t think there was any post of yours I could agree with. “ALL cases NEED to be judged on their mertit and what the Constitution says (Not what someone wants to to say).”

I agree. But, I would venture that we disagree almost absolutely on what the Constitution means by what it says.

Posted by: Dave at November 3, 2005 12:50 PM
Comment #90087
A full review of your link shows that while Rumsfeld owns the stock, he is not making any decisions in regard to it, and has actually taken steps to distance himself from potential decisions. One thing for sure….had he sold it, you’d be one of the first on the insider trading bandwagon.

How about this for a suggestion?

Rumsfeld sell all his stock, and split the money three ways.

First, the money equal to the value of the stock when he re-entered govt. service (presumable 1/20/2001) be put in fixed rate T-bills.

Second, the profit goes to a not-for-profit organization that he has no relationship with that’s trying to fight the flu.

Third, he can hold back whatever his accountant says he needs for taxes on the sale.

No one can accuse him of profiting from government service, or his decisions. And he can devote the full power of the Pentagon to fighting the flu pandemic.

Of course, he might be a few million dollars poorer. Does anyone know what he’s worth?

Posted by: bobo at November 3, 2005 12:55 PM
Comment #90111

This just in: Sam Alito at the Vanguard of fighting conflicts of interest!

I really hope Bush has his act together on this. The last thing we need to happen is that Bush caves in to some vaccine company or special interest on litigation claims and lets Americans be unimmunized for all this.

Posted by: Stephen Daugherty at November 3, 2005 1:40 PM
Comment #90118

Bobo:

I don’t see how it would be anyone’s right to tell a government official what to do with their money. Certainly not how much they should give to charity etc.

I do think the practice of putting one’s investments into a blind trust is a good thing for a govt official to do, though not at every level of government, of course. In doing so, the official give off no perception of conflict of interest.

But in Rumsfeld’s case, the link showed that he at least had the conversations with the appropriate people about how to deal with the situation. That alone shows a sign that he wasn’t looking to game the system.

Posted by: joebagodonuts at November 3, 2005 2:02 PM
Comment #90123
I don’t see how it would be anyone’s right to tell a government official what to do with their money. Certainly not how much they should give to charity etc.

Im not suggesting that anyone tell Rumsfeld what to do with his money. I’m offering a suggestion of a way he can avoid ANY appearance of impropriety.

I do think the practice of putting one’s investments into a blind trust is a good thing for a govt official to do, though not at every level of government, of course. In doing so, the official give off no perception of conflict of interest.

I’m having a difficult time with these so-called blind trusts. If it’s a blind trust, then you shouldn’t even know what’s in it. This is what bugged me about the Frist blind trust (I don’t know the details of Rumsfeld’s; it may be similar). You shouldn’t be making inquiries or having conversations with anyone managing them. THEY make all the decisions. You only know what’s there when you come out of government service.

But in Rumsfeld’s case, the link showed that he at least had the conversations with the appropriate people about how to deal with the situation. That alone shows a sign that he wasn’t looking to game the system.

That’s fine; but then don’t call it a blind trust.

Posted by: bobo at November 3, 2005 2:35 PM
Comment #90161

Dave
Until now, I don’t think there was any post of yours I could agree with. “ALL cases NEED to be judged on their mertit and what the Constitution says (Not what someone wants to to say).”

I agree. But, I would venture that we disagree almost absolutely on what the Constitution means by what it says.


Every now and then we all can find something that we can agree with the other side on. I find myself agreeing with the left side of this blog myself at times.
Your right though, we would most likey be 100% opposed to each other on what the Constitution means. But that’s one thing that makes this country great. We have the right to disagree with each other.

Posted by: Ron Brown at November 3, 2005 4:07 PM
Comment #90221

To all
I believe that everybody looks at the constitution a little bit different throughtout. But to get an excellent perspective on the constitution I believe the reading of the Federalist Papers is a must. That would help understand the original intent of the framers of the constitution. For instance, in the courts of law for many years the practice of precedence to make an interpretation of the constitution has been used. Why not rely on the original document and allow that from time to time a faulty judgement would have been rendered, but by citing the original document and paying attention to those faulty judgements to learn from, then a sound judgement can be made. Take for instance one of the hotter buttons. Roe vs. Wade. Today we only go back to Roe vs. Wade for those decisions that fall into that catagory. Why not go back to the original intent and allow for either faulty or sound judgement in Roe vs. Wade. But don’t get tied down to Roe vs. Wade to be the final word. Settled law should only apply to law enacted that has been applied for decades and has met the constitutional test of being a sound law. If a law which is questionable whether it is constitutional or not and has not had the time to become sound law, then it most certainly cannot be considered settled law. A good example of that is campaign reform law. That will eventually be considered unconstitutional, in my opinion.

Posted by: tomh at November 3, 2005 6:28 PM
Comment #90368

Ron:But that’s one thing that makes this country great. We have the right to disagree with each other.

Quite true… Now lets keep it that way :-)

Posted by: Dave at November 3, 2005 10:27 PM
Comment #90588

Matt Johnston raised interesting discussion points on the proposed bird flue policy. The effects on our defense (from domestic martial law to possible blockades of non-cooperative foreign countries) are tremendous. Adrienne raised Secretary Rumsfeld’s stock ownership of Gilead as a potential conflict. Joebagodonuts implied bias on Adrienne’s part and commended Rumsfeld for recusing himself on bird flue issues and claims Rumsfeld couldn’t sell the stock, on advice of counsel, for fear of insider trading claims.

Rumsfeld should sell his stock. This is standard practice for all federal government workers.

If Secretary Rumsfeld must recuse himself from participating in critical policy decisions (martial law, blockades), he’s not doing his job. If he’s not recusing himself, he’s positioned to profit at our country’s expense — a clear conflict.

The participants on this site (Adrienne excepted) may trust Secretary Rumsfeld, that’s the not the point. The ethics that apply to Rumsfeld applied to the last Clinton administration and will apply to the next, if there is one.

Additionally, the insider trading argument is bogus. Planned publicly announced sales by insiders happen all the time. Announce in advance the date and the number of shares and sell at the market rate that date. That’s standard corporate practice. If it’s good enough for Bill Gates, it should be good enough for Donald Rumsfeld.

A blind trust (one that is truly blind) works well too, but would require the trustee to flip all of the holdings once put in so Rumsfeld wouldn’t know what he owns. That clearly isn’t the case here.

Posted by: common ground at November 4, 2005 6:49 PM
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