Are Quarantine & Isolation Constitutional?

Point: The US Constitution doesn’t mention quarantine or isolation.
Point: US Constitution, 10th Amendment: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Point: Idaho Law, TITLE 56, PUBLIC ASSISTANCE AND WELFARE, CHAPTER 10, DEPARTMENT OF HEALTH AND WELFARE (7) The director, under rules adopted by the board of health and welfare, shall have the power to impose and enforce orders of isolation and quarantine to protect the public from the spread of infectious or communicable diseases or from contamination from chemical or biological agents, whether naturally occurring or propagated by criminal or terrorist act.
(a) An order of isolation or quarantine issued pursuant to this section shall be a final agency action for purposes of judicial review. However, this shall not prevent the director from reconsidering, amending or withdrawing the order. Judicial review of orders of isolation or quarantine shall be de novo. The court may affirm, reverse or modify the order and shall affirm the order if it appears by a preponderance of the evidence that the order is reasonably necessary to protect the public from a substantial and immediate danger of the spread of an infectious or communicable disease or from contamination by a chemical or biological agent.
(b) If the director has reasonable cause to believe a chemical or biological agent has been released in an identifiable place, including a building or structure, an order of quarantine may be imposed to prevent the movement of persons into or out of that place, for a limited period of time, for the purpose of determining whether a person or persons at that place have been contaminated with a chemical or biological agent which may create a substantial and immediate danger to the public.
(c) Any person who violates an order of isolation or quarantine shall be guilty of a misdemeanor.

So, how isn’t it constitutional or legal?

Update: The courts are still upholding it, most recently in Michigan.

© 2020, Tim Boothby. All rights reserved.


Great Misconception: Treason Under US Law

There are whole libraries filled with the laws of this country but only one crime that was of such importance that it was specifically placed into the United States Constitution, the crime is treason and the reason for this prominence wasn’t because the founder intended it be used, but rather to constrain its use under the most rigid checks. Treason was a charge that could be levied in other countries for the simple matter of offending a king or potentate. Call the queen fat and your head was on a pole after somebody ripped out your insides while you watched. Not only could a person be called traitor, but their unborn grandchildren would carry the stigma of blood guilt as well.

The founding fathers wanted it to be a complete and unmitigated pain in the backside to make a charge of treason, so they codified it in Article III Section 3:

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

  • Governor Thomas Dorr, convicted of treason against the state of Rhode Island for leading the Dorr Rebellion against the state of Rhode Island in 1844, he was released in 1845, his civil rights were restored in 1851 and the verdict ultimately annulled 1854.
  • John Brown, convicted of and hung for treason against the Commonwealth of Virginia in 1859 following his raid on Harper’s Ferry as an act of armed insurrection, intending to create a slave revolution in the south.
  • Aaron Dwight Stevens, took part in John Brown’s raid and was also convicted of and executed for treason in 1859.
  • Robert Henry Best, convicted of treason as an American broadcaster of Nazi propaganda during World War II. He was convicted in 1948 of treason and sentenced to life imprisonment.
  • Iva Toguri D’Aquino, was tried and convicted of treason after WWII as “Tokyo Rose,” a famous or infamous propaganda broadcaster, she was pardoned by President Gerald Ford when it came to light that she was convicted after a thoroughly tainted investigation and trial by a kangaroo court.
  • Mildred Gillars was also tried and convicted of treason after WWII as “Axis Sally” and served 12 years of a 10-30 year sentence.
  • Martin James Monti, a United States Army Air Force pilot convicted of treason for stealing P-38 fighter and defecting to german and joining the Waffen SS, he served a 25-year sentence.
  • Tomoya Kawakita, held dual US and Japanese citizenship, he was charged and convicted of torturing American POWs and sentenced to death, President Eisenhower commuted this sentence to life imprisonment and Kennedy ordered hi released to Japan and barred his return.

That’s the whole list. The entire list of those convicted of treason, eight in all, six for treason against the United States (one executed), two for treason against a state, Rhode Island and Virginia (one executed), the exact number of trials conducted for treason is harder to pin down, the closes I’ve been able to find is 40 prosecutions for treason in United States History, with a very few prosecutions covering more than one defendant. The number of convictions would have probably been higher but George Washington pardoned all convicted in the Whiskey Rebellion Trial and Andrew Johnson issued a blanket pardon to all of those indicted (including Jefferson Davis and Robert E. Lee) before they could be brought to trial.

It’s a daunting things to attempt to try one of treason in the US, Benedict Arnold was never tried. Julius and Ethel Rosenberg, Jonathon Pollard John Walker and family, all convicted, but of espionage not treason. John Walker Lindh was convicted of conspiracy to murder US nationals, again, not treason. There has only been one person charged for treason since 1952, Adam Yahiye Gadahn, charged in 1996 for his part in making al-Qaeda propaganda, stay tuned, this is still in the legal mill somewhere.

Congress, as directed by the Constitution, passed United States Code at 18 U.S.C. § 2381: “whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States.” Notice how tightly that’s written?

There is a high bar for charging a person with treason, and higher bar to convict (roughly 80% of prosecutions failed so far), and a really high bar to actually hold a person for their full sentence. This is the way it should be, historically treason charges have been tossed around far too lightly, to the point where people really don’t seem to have any idea of what it is under US law. Roughly 40 trials and only 8 convictions since the constitution was ratified and the last trial in 1952, and that’s as it should be, lest we fall into the cesspool of the history of the “Old World” where the charge was used with complete negligence, often on royal whim.

© 2009 – 2020, Tim Boothby. All rights reserved.


How Presidential & Vice Presidential Succession REALLY Works

An Article I wrote for Newsvine, you can also read it here.

Say that Vice President Cheney resigns due to his heart troubles, or say the unlikely happens and he is impeached by Congress, many think that the Speaker of the House would replace him, and they would be wrong, the President chooses the replacement.

The 25th Amendment to the Constitution clarifies some rather ambiguous translations that have been raised in the past, because through history the order of succession has been juggled a few times, coming close to what we have after the final legislative juggling in the order of succession in 1947, then the 25th Amendment finalized what we have today in 1965.

So when do the Speaker of the House and the President and the President pro tempore of the Senate come into play? Well, lets lay it out:

  • If the Presidency is vacated the Vice President becomes President and appoints a new Vice President who is voted upon by congress.
  • If the Vice Presidency is lost then the President names a replacement who is voted upon by congress.
  • If both the Presidency and Vice Presidency are vacated at the same time, the Speaker becomes president and appoints a Vice President who is voted upon by congress.
  • If the Presidency, Vice Presidency and Speakership are vacant at the same time, then the President pro tempore of the Senate becomes President and appoints a Vice President who is voted upon by congress.
  • The list keeps going downward through the order of succession if all posts in succession above them are simultaneously vacant.

By the way, there has been more than one occasion where we had no Vice President because Presidents never bothered to, or refused to appoint one, that would technically make the Speaker the Acting Vice President, while still performing the duties only of Speaker.

This rather short article was actually inspired by an argument over a Tom Clancy book titled Executive Orders when most of the government was lost when a fuel-laden 747 crashed into a joint session to appoint a new Vice President. It was written before 9-11 if anyone was curious.

© 2007 – 2020, Tim Boothby. All rights reserved.