Is the Media Really Concerned about the Coronavirus’ Impact on Black Communities or Laying the Groundwork to Justify Coercive Gov Action Against People Deemed a Risk to Public Health?

Although data on race and the coronavirus is too limited and way too small of a statistical sample to draw meaningful conclusions, disparate rates of sickness and death allegedly caused by the coronavirus have emerged. Over the past seven days the dependent media has been sounding the alarm about said disproportionate impact and black puppeticians (such as Muriel Bowser, Lori Lightfoot and Nick Mosby) have been parroting the message.

Undeceived persons understand that dependent media and obedient Black rolebots basically have the same racist suspect, elite white masters. To the extent that racists have anything to do with the creation and/or spread of the virus the purpose of such information should be scrutinized and critically analyzed because it may be propagandized in the wrong hands. Naturally, said information can and hopefully will be put to productive use by responsible and accountable persons.

To be clear the aforementioned are not claiming any biological difference has caused the disproportionate impacts between whites and Black people. Media outlets such as CNN and the New York Times have explained that the impact on black communities is due to “entrenched inequalities in resources, health and access to care.” Such explanations are weak attempts to minimize the actual context in which we live in - the system of racism white supremacy, a main source of Black people’s problems.

Another purpose could be afoot. Observe that during a health emergency that government can assert nearly limitless, unaccountable power to encourage or coerce changes in behavior of the populace. Although most people want to voluntarily comply with measures to remain healthy and have no desire to contract a dangerous disease, post 9-11 the government has chosen a compulsion approach over voluntarism approach to deal with an emergency -e.g., mandatory testing, screening, physical examination, reporting, directly observed therapy, isolation, orders to shelter in place, arrests and civil commitment.

Most people believe that if an individual is currently contagious the government has the authority to separate that person from others and to provide necessary treatment. But ‘what about where the government seeks to exercise compulsion against an entire class of individuals where some, but not all, members of the class pose a so-called future risk to the public health?’ Can compulsion be visited upon an individual simply by virtue of her inclusion in a class composed of some dangerous persons absent an individualized assessment of significant risk?

Here, under a circumstance where certain Black communities are being described as epicenters of the coronavirus it is not a leap in logic to assert that such areas could be deemed [by panicked, racist suspects lathered up in fear] dangerous to the health of the general public - as a large number of persons therein allegedly have the coronavirus and potentially carry the virus in the Black community and could spread it outside the community. Although quarantines cannot be imposed in a racially invidious manner could the state or federal government lawfully quarantine said neighborhood in a containment strategy calling for the en-forcement of shelter in place orders, isolate individuals and subject the neighborhood’s inhabitants to police surveillance, freedom of movement restrictions, ban outsiders from access to it, prevent residents from leaving and compel vaccinations or treatment and arrest and detain those who violate orders? Could the government turn such communities into a quarantined crime scene?

According to constitutional scholars such as Lawrence Gostein, Wendy Parmet and Michael Ulrich, the answer is yes, depending on the circumstances.

In fact, on January 19, 2017, the day before the inauguration of President Trump, the Department of Health and Human Services (HHS), with its Centers for Disease Control and Prevention (CDC), promulgated final rules amending the regulations governing domestic and foreign quarantine.

The new regulations grant broad quarantine authority to the CDC. They empower the CDC Director to authorize the "apprehension, medical examination, quarantine, isolation, or conditional release of any individual for the purpose of preventing the introduction, transmission, and spread of quarantinable communicable diseases, as specified by Executive Order." This applies to those who arrive in the United States, those who may move interstate, and to some whose movements remain intrastate.

The federal statutory authority to promulgate the 2017 federal quarantine regulations derives from Section 361 of the Public Health Service Act, codified at § 264 of Title 42 of the U.S. Code, which grants the Secretary of HHS authority to "make and enforce such regulations as in [their] judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession." Regulations may not provide for the apprehension, detention, or conditional release of individuals except for the purpose of preventing the introduction, transmission, or spread of the diseases specified in Executive Orders of the President (the "quarantinable diseases"). Individuals who have a disease that is not listed in the Executive Order are not subject to apprehension or detention under this federal law.

The 2017 regulations set forth rules for the involuntary detention of individuals believed to be infected with a quarantinable communicable disease. Nevertheless the statute and its implementing regulations do not use the term quarantine (which refers to involuntary movement restrictions, including isolation.).

According to Ulrich, whether the statute and regulations comply with due process requirements depends on their compliance with the due process required for involuntary civil detention.

Although the Supreme Court has not reviewed a quarantine case in the modern era, it has considered the substantive and procedural due process rights of individuals who suffer a loss of liberty in other circumstances. In its seminal procedural due process case, Matthews v. Eldridge, the Court explained that the specific demands of procedural due process depended upon "three distinct factors:" (1) the nature of the individual interest, (2) the risk of an erroneous deprivation of such interest, and (3) the government's interest. The Court has also set forth standards for the civil commitment of persons who have been diagnosed as having a mental disorder to prevent them from causing future harm to others. [MORE]

Ulrich explains, Isolation and quarantine share many characteristics with civil commitment for mental illness. In each case individuals are detained civilly, ostensibly not to punish them but to prevent future harm. Hence, the confinement is based upon a prediction of a future occurrence, rather than a judgment about a past action. Given these key similarities, it perhaps is not that surprising that as the law of civil commitment developed, courts and commentators began to see its applicability to isolation and quarantine. State courts have used these standards in civil commitment doctrine by analogy to determine when involuntary confinement is justified to prevent the spread of infectious disease.

In Foucha v. Louisiana, the Court made clear that to hold an individual involuntarily in civil commitment, the Due Process Clause required proof of two elements: mental illness and dangerousness to themselves or others.

By itself, neither element provides sufficient justification for confinement. Furthermore, the Court stated that the burden of proof lies with the State to show that each element exists with "clear and convincing evidence," as a preponderance of the evidence "fell short of satisfying due process." The Court recognized that a "loss of liberty produced by an involuntary commitment is more than a loss of freedom from confinement." Therefore, as explained by Ulrich "the Due Process Clause contains a substantive component that bars certain arbitrary, wrongful government actions 'regardless of the fairness of the procedures used to implement them.'" It is for this reason that substantive due process "requires that the nature of commitment bear some reasonable relation to the purpose for which the individual is committed."

Ulrich explains that statute and new regulations probably violate Due Process because they authorize involuntary confinement without requiring consideration of both of the factors required for civil commitment. “The regulations do not require any evidence that a person is likely to act in ways that will infect others. And, the regulations do not require an examination into the characteristics of the disease, which is critical to establishing what the potential magnitude of harm is to the public. Rather, a reasonable belief that an individual is infected with a quarantinable disease is the sole standard used to justify involuntary commitment.” [MORE]

Depending on how the the power to detain persons with infectious disease is challenged it could also be subject to the strict scrutiny test. Under said test a law is upheld if it proven necessary to achieve a compelling government purpose. The government must have a truly significant reason for the quarantine and it must show that it cannot its objective through any other alternative. This may not be hard for the government to do with a very deferential court in a public-frenzied, lathered up in fear environment.

Legal scholar, George Smith explains, “today, when the government claims emergency powers in times of disaster, it is most generally justified in doing so under the rubric of the inherent powers of states to advance and maintain the common good through the exercise of their broad police powers. Such broad police powers are, by their nature, "free from principled constraint."

Ulrich states, “there are good reasons to be skeptical of allowing such broad discretion to officials. History shows that officials have often enforced measures like quarantine and civil commitment disproportionately against minorities, immigrants, and the poor. 95 Infectious disease emergencies are typically accompanied by paranoia and fear, and "commonly trigger retributive and discriminatory instincts, so that actual quarantines often impose inhumane, stigmatizing, or even penal treatment upon persons who are confined based on caprice or even prejudice." . . .If the rules authorize discretion broad enough to enable or even invite abuse, they endanger guarantees of individual liberty.

Presently most policymakers embrace an approach that views public health policy through the prism of national security and law enforcement. As explained by the ACLU, this approach assumes that we must “trade liberty for security.” As a result, instead of helping individuals and communities through education and provision of health care, today’s pandemic prevention focuses on taking aggressive, coercive actions against those who are sick. People, rather than the disease, become the enemy.

The ACLU states since 9/11, the war metaphor has proven an effective tactic in winning support for the delegation of broad emergency powers or minimizing opposition to the executive's arrogation of such powers. Rather than focusing on how government can work with individuals and their communities to be healthy, public health policymakers now often emphasize the need to take tough, coercive actions against the very people they are charged to help. This approach not only targets people as the enemy instead of the disease, but also encourages health officials to believe that government cannot do much to help people in an epidemic.

In effect, individuals are viewed as personally responsible for the spread of illness as well as for their own care.

Legal scholar Lawrence Gostin has explained that “to protect the welfare of the public” the government may lawfully take coercion action against non-symptomatic people who may or may not carry the virus because, although there is no immediate risk to the public, a future risk exists. Also, the government may lawfully take compulsive actions against an entire class of persons, such as a Black neighborhood, even though individuals within the community may not pose any individualized assessment of risk to the public.

Gostin explains:

The government's duty to protect the health of citizens placed at risk of foreseeable harm is as strong its duty to protect against more imminent transmission of infection.

In constitutional adjudication, courts would be equally, or more, likely to uphold compulsory interventions based upon a reasonable assessment of future harm given the highly deferential approach [by the courts towards the actions of the executive and government agencies]. There have been communicable disease cases where courts have required persons to be actually infectious to be subject to isolation or quarantine. These cases, however, are distinguishable because the individual was completely deprived of liberty and there was little evidence that those detained were a danger to the public health--either currently or in the future. In any case where the state could demonstrate a rational nexus between a relatively unintrusive intervention such as directly observed therapy and the likely reduction in future harm to the public, there appears to be no judicial propensity to interfere with reasonable medical judgments.

The constitutional or disability-based rule authorizing compulsion to avert a foreseeable harm requires reasonably accurate predictions of future dangerousness. However, if the state can demonstrate through objective data that the person is likely to develop or reactivate clinical disease, there is no reason why it could not intervene to prevent the future risk to the public.

. . .It may well be possible to objectively demonstrate that the class as a whole presents a foreseeable risk to the public. The problem from the perspective of legal theory is that many members of the class subjected to compulsion pose no danger at all. The question arises whether compulsion can be visited upon an individual simply by virtue of her inclusion in a class composed of some dangerous persons absent an individualized assessment of significant risk.

This conceptual problem is fraught with difficulty whether viewed from the perspective of disability law or constitutional law. Perhaps the most revered principle under antidiscrimination law is the requirement to make individualized determinations of person's qualifications or eligibility.' To free the individual from the biases frequently associated with membership in the class, it is central to civil rights doctrine that each person must be assessed according to his or her own characteristics.

Given the unequivocal requirement for individualized assessments of risk, what recourse does the state have when, despite its best efforts, it is not able to reliably separate the perceived from the truly dangerous? This becomes a formidable dilemma when the state is capable of demonstrating that the class as a whole does pose a significant health threat and where the intervention proposed is both effective and non-draconian.

The inflexible requirement for individualized inquiries was rejected in Traynor v Turnage," where the Supreme Court concluded that the Veterans' Administration did not violate the Rehabilitation Act by characterizing primary alcoholism as "willful" misconduct. Even though all persons within the class of alcoholics had not engaged in willful misconduct, the Veterans' Administration was entitled to rely on a reasonable agency rule." The court held the following:

[A]n agency, in treating handicapped persons, may sometimes proceed by way of general rule or principle, at least where 1) the agency behaves reasonably in doing so, 2) a more individualized inquiry would impose significant additional burdens upon the agency, and 3) Congress, as well as the agency, has expressed some kind of approval of the general rules or principles concerned.230

…

The Health Department arguably could justify status-based determinations under the standard set in Traynor and Ward by showing that it acted reasonably by reference to objective scientific standards; that individual assessments of risk for the entire class would be disproportionately burdensome or even scientifically inconceivable; and that there was clear authority in state statutes or health regulations.

It is not necessary to agree with the judicial decisions in Traynor and Ward or even to agree generally with the principle of status-based determinations"' to conclude that in the narrow circumstances posited here proceeding against the class is warranted. The case of DOT is distinguishable from most other uses of status-based determinations because the invasion of autonomy for the individual is not extreme, the person benefits from the treatment, and the intervention is justified by a demonstrable benefit to the public health.

The requirement of individualized determinations is also inherent in the doctrine of overbreadth found in Fourteenth Amendment and other constitutional jurisprudence. Yet, constitutional analysis would likely be consistent with the disability-based conclusions suggested above. The requirement of narrowly tailored interventions is characteristically found in cases where the court engages in strict scrutiny." To the extent that the state deprives individuals of liberty, such as in a status-based isolation rule, it is likely the courts would carefully examine obvious over-inclusion. Yet, where the state strikes at a liberty interest that is less fundamental, such as in a requirement of DOT, it is more likely the court would engage in an interest balancing approach." Given the considerable health interest asserted by government, the courts' natural inclination to defer to medical judgments, and the relatively unintrusive nature of the requirement, claims based on the Fourteenth Amendment are not likely to succeed.” [MORE]

In 2018 after a black cop was killed [apparently by another cop], Baltimore turned the Harlem Park neighborhood into a crime scene and the entire neighborhood was cordoned off. For one week, mostly Black residents and persons entering or leaving the area were subject to interrogations, unlawful seizures, stops, pat down searches, ID checks and non-residents were barred from entering the area. Residents have said they were being required to show identification to get past the police tape to enter their homes. They complained about helicopters flying above their homes, flashing lights from police cars, and being subject to harassment [MORE]

Observe that there is no real limit to government authority exercised in the name of the public good. This is the essence of the lawless society that is rarely visible to the obedient citizenry - law is upheld and deified over humanity. FUNKTIONARY defines the “public good” as a Corporate Statist anti-concept – being the altar on which feudal-citizen-victims are immolated.”

At any rate, exactly when did you and I consent to this arrangement with the government? If this arrangement and relationship is not voluntary then what is it? Undeceiver Lysander Spooner states:

The current doctrine that private rights must yield to the public good, amounts, in reality, to nothing more nor less than this, that an individual or the minority must consent to have less than their rights, in order that other individuals, or the majority, may have more than their rights. On this principle no honest government could ever be formed by voluntary contract, (as our governments purport to be;) because no man of common sense would consent to be one of the plundered minority, and no honest man could wish to be one of the plundering majority.

The apology, that is constantly put forth for the injustice of government, viz., that a man must consent to give up some of his rights, in order to have his other rights protected—involves a palpable absurdity, both legally and politically. It is an absurdity in law, because it says that the law must be violated in some cases, in order that it may be maintained in others. It is an absurdity politically, because a man’s giving up one of his rights has no tendency whatever to promote the protection of others. On the contrary, it only renders him less capable of defending himself, and consequently makes the task of his protection more burdensome to the government. At the same time it places him in the situation of one who has conceded a part of his rights, and thus cheapened the character of all his rights in the eyes of those of whom he asks assistance. There would be as much reason in saying that a man must consent to have one of his hands tied behind him, in order that his friends might protect the rest of his body against an enemy, as there is in saying that a man must give up some of his rights in order that government may protect the remainder. Let a man have the use of both of his hands, and the enjoyment of all his rights, and he will then be more competent to his own defence; his rights will be more respected by those who might otherwise be disposed to invade them; he will want less the assistance and protection of others; and we shall need much less government than we now have.

If individuals choose to form an association or government, for the mutual protection of each other’s rights, why bargain for the protection of an indefinite portion of them, at the price of giving to the association itself liberty to violate the equally indefinite remainder? By such a contract, a man really surrenders everything, and secures nothing. Such a contract of government would be a burlesque on the wisdom of asses. Such a contract never was, nor ever will be voluntarily formed. Yet all our governments act on that principle; and so far as they act upon it, they are as essentially usurping and tyrannical as any governments can be. If a man pay his proportion of the aggregate cost of protecting all the rights of each of the members of the association, he thereby acquires a claim upon the association to have his own rights protected without diminution.