The Washington PostDemocracy Dies in Darkness

Quarantining Ebola doctors may well be unconstitutional

At a press conference on Friday, Gov. Andrew Cuomo (D-N.Y.), left, and Gov. Chris Christie (R-N.J.) announce mandatory quarantines for health workers returning from countries struck with Ebola. (AP/Mark Lennihan)

Kaci Hickox gave a scathing interview to CNN on Sunday from the tent where she expects to be confined for the next three weeks outside a hospital in Newark, New Jersey. which has a portable toilet and no shower or television. The nurse, recently returned from fighting Ebola in Sierra Leone, said she was healthy and that Gov. Chris Christie was wrong to place her under a mandatory quarantine.

She has also retained a well-known lawyer to challenge the order, which will represent the first real test in many years for the country's antiquated laws on quarantine.

Christie and New York Governor Andrew Cuomo have placed a mandatory quarantine on medical personnel returning from West Africa after a doctor tested positive for Ebola in New York City last week. Three other governors have put similar restrictions in place. These rules raise hard questions as more and more doctors and nurses return from West Africa. When can a state quarantine people who are healthy? To whom can they appeal? How quickly will courts be able to hear the cases? Who will enforce the quarantines?

And where will all these people stay? Will they be able to shower? These questions have been troubling legal scholars for a while now, and we're about to find out the answers.

Lawrence Gostin, a law professor at Georgetown University who has been in touch with Hickox about her legal options, said he thought the quarantine order was illegal and unconstitutional. He noted that since you can't catch Ebola from someone unless they are both infected and showing symptoms, Hickox poses no danger to the public.

"The courts are very suspicious when you deny a whole class of people their liberty," he said. "She's being detained because she's a member of a large class of people who happened to have been in the region."

The University of Louisville's Mark Rothstein said that lawyers for New Jersey will have to convince a court that the quarantine is reasonable. He noted that there are alternatives, such as asking passengers to report their temperature twice a day (as the Centers for Disease Control and Prevention already requires) or even a shorter quarantine, followed by a period of monitoring until Ebola's 21-day incubation period has passed.

Rothstein added that doctors and nurses can be trusted to follow the rules. "If you're one of these workers who is intimately familiar with Ebola and you start to develop a fever, you're going to get yourself to a hospital as soon as possible," he said.

Hickox, meanwhile, could conceivably call on Obama administration officials as witnesses, who would argue that the quarantine is not just unreasonable but counterproductive. Their worry is that Hickox's isolation tent in Newark will discourage doctors from making the journey to West Africa to risk their lives stopping Ebola -- and that if the virus spreads beyond that region, it will only be a matter of time before it comes here.

The White House and medical experts have reportedly been urging the governors to rescind their orders. In response, Cuomo said Sunday that he would allow returning medical personnel to go home. They would have to stay there, but they would be compensated for missed work. (Christie also said that doctors and nurses would be sent home if they are New Jersey residents.)

A couple of weeks of paid time off might not sound so bad for some returning from the hot zone, but from a court's point of view, a quarantine is still a quarantine.

What's in Wonkbook: 1) The debate over the quarantines 2) Opinions: Malcolm X, official liars, car dealers and the midterm 3) Third student dies following school shooting 4) The White House debate on deportations 5) Teacher tenure and pay, rivers that glow in the dark, Nazi informants and more

Number of the day: 25 percentThat's the approximate decline in the number of uninsured Americans due to Obamacare. It's an impressive figure, but by other measures, the law's success has been mixed. The New York Times.

Chart of the day:

Bookmakers are giving Senate Democrats long odds for keeping their majority. The probability of a Republican victory is about 86 percent, according to betting markets, or about six to one. Justin Wolfers in The New York Times.

1. Top story: White House, governors debate Ebola quarantines

Hickox plans to file suit this week. Her lawyer notes that the case could set an important precedent. Yoni Bashan, Melanie Grayce West and Heather Haddon in The Wall Street Journal.

Cuomo responds to complaints from the White House. Administration officials privately warned the governor that a ban could have unintended consequences for the medical effort in West Africa, and made their case on the Sunday morning talk shows. Cecilia Kang in The Washington Post.

Quarantines are rare in modern times, and courts will be asked to decide unfamiliar questions. For New Yorkers, the last quarantine was 20 years ago during a tuberculosis outbreak. Civil liberties advocates and public health doubt whether the new quarantines will hold up in court. Benjamin Weiser and J. David Goodman in The New York Times.

There are things about Ebola we don't know. Some patients never develop a fever, and for a few, the incubation period is longer than 21 days. Although there's no evidence of airborne transmission so far, that doesn't mean it's impossible. For these reasons, one of the world's leading Ebola scientists is highly critical of the government's response. James Hamblin in The Atlantic.

HICKOX: The nurse describes her ordeal in an essay. She waited for hours at Newark International Airport, where she was treated like a contagious criminal and where no one seemed to be in charge. "I had spent a month watching children die, alone," Hickox writes. "I had witnessed human tragedy unfold before my eyes. I had tried to help when much of the world has looked on and done nothing." The Dallas Morning News.

COHN: Cuomo and Christie are playing doctor -- and playing politics. Yes, there are some good arguments for a quarantine, but most medical experts agree it isn't necessary. In any case, the governors seem more worried about their political prospects than about the science. The New Republic.

2. Top opinions: Malcolm X, official liars, car dealers and the gubernatorial races

COOKE: Malcolm X was right about black people and guns. Gun restrictions were historically designed to prevent blacks from obtaining weapons. The National Rifle Association and the gun-rights movement should do more to reach out to the black community, who understand what the right to keep and bear arms really means. The New York Times.

BRADLEE: The press has a duty to expose official liars. In a 1997 lecture, the late editor of The Washington Post talked about national security and other excuses the government uses to hide crucial facts from the public, at the public's expense. The Washington Post.

YGLESIAS: Crush the car dealerships. State laws banning automakers from selling directly to consumers add several percentage points to the cost of every car, and making buying one a hassle. Uncle Sam can encourage the states to establish a free market in auto retail. Vox.

WILL: Wisconsin authorities are intimidating Walker's supporters in Wisconsin. Raids by law enforcement have uncovered no evidence of inappropriate coordination between Walker and outside groups. Instead, they've spooked conservative organizers and donors, giving his Democratic challenger an advantage. It's just the inevitable result of any effort to regulate political speech. The Washington Post.

FINLEY: Brownback's tax cuts have stopped Kanas's decline. The state has made some progress, beginning to catch up to its neighbors. And Kansas isn't exactly in revolt: Brownback's policies have popular support, and his opponent isn't  campaigning as a liberal. The Wall Street Journal.

DIONNE: The Democrats are doing better than you'd expect. The president's unpopularity should make this campaign a cakewalk for Republicans, but the public sees them as out of touch, expecially on economic issues. The Washington Post.

KRUGMAN: Republicans have blocked sensible spending on infrastructure. For seven years, the economy has been flooded with excess savings and nothing to spend the money on. Investment in infrastructure should have been a "no-brainer." The New York Times.

3. A third student has died after Friday's school shooting

Gia Soriano died Sunday night of gunshot wounds. She was 14. The death toll from the shooting in Marysville, Wash. has risen to three, including the shooter, but three more remain hospitalized. Associated Press.

The shooting was the 87th at a school since the Newtown, Conn. massacre. Some recent polls show Rep. Cory Gardner in Colorado and Rep. Tom Cotton in Arkansas ahead of their opponents among women. Democrats are relying heavily on the female vote. Ian Millhiser for ThinkProgress.

Meanwhile, citizens in Washington are getting ready to vote on opposing gun-control initiatives. The question is whether to require universal background checks for all gun purchases. Police have said that the shooter, Jaylen Fryberg, acquired his .40-caliber handgun legally but have offered no details. Maria La Ganga and James Queally in the Los Angeles Times.

4. Napolitano calls for executive action on immigration

In a speech today, the former Homeland Security secretary will discuss the internal White House debate over deportations. Administration officials were worried that the 2012 order delaying deportations for hundreds of thousands of undocumented immigrants would appear to usurp Congressional authority, and that it would be too complicated to implement. Jerry Markon in The Washington Post.

Meanwhile, activists are challenging Hillary Clinton to take a stand on immigration. In the past, she's been very popular with Hispanics, but now she is campaigning for Democrats who some feel have betrayed the Latino community. Amy Chozick in The New York Times.

Can Udall survive without the enthusiasm of Latinos? In Denver, Hispanics feel that Democrats and Obama have betrayed them. They're disaffected and upset, and they're 14 percent or so of the electorate statewide. Rachel Roubein in National Journal.

5. In case you missed it

The attack on teacher tenure is the personal project of a wealthy tech magnate. At the same time, there's strong evidence that good teachers really are valuable for students, as this detailed discussion of the tenure debate explains. Haley Sweetland Edwards in Time.

This school paid teachers $125,000 a year, and test scores went up. Kids learned more at a charter school where teachers were paid generously and participated in administration, a new study found.  Libby Nelson in Vox.

Campaigns reach out to recent graduates with student debt. Democrats are trying to use the issue to turn out young voters. "Soccer moms and Nascar dads have had their moments in the political spotlight. Now it's the basement grads' turn." Douglas Belkin in The Wall Street Journal.

Pollution is leading to blooms of luminescent algae in Florida waters. The rivers are glowing in the dark due to nitrogen, phosphorus and other pollutants. Destructive, sometimes toxic blooms are becoming more common around the country. In Toledo, residents were forced to shut off their taps. Joby Warrick and Darryl Fears in The Washington Post.

U.S. spy agencies protected hundreds of Nazis after World War II. As many as 1,000 Nazis were used as informants during the Cold War, even though Justice Department prosecutors were trying to bring them to account for crimes they'd committed under Hitler. Eric Lichtblau in The New York Times.

Someone's hoarding copper again. A single firm has owned as much as 90 percent of the copper stored in warehouses worldwide at times during the past month. Some worry that whoever it is will use their stockpile to raise prices, while others say the London Metal Exchange isn't doing enough to stop opportunistic buyers from cornering the market. Sarah Kent, Ese Erheriene and Ira Iosebashvili in The Wall Street Journal.

Retailers have turned to social media to recruit extra hands for the holidays. Finding employees is becoming more harder, but wages aren't increasing. It's yet another example of how firms will do everything possible to avoid raising pay. Eric Morath in The Wall Street Journal.