What Are The Powers And Limits Of Public Health Officials In A Pandemic?

By Todd A. Heywood, Michigan Advance

When Rudy Giuliani, the erstwhile attorney for outgoing President Donald Trump, sat in front of the Michigan House Oversight Committee to expound upon false and unproven allegations of voter fraud in Michigan’s November election, no one knew he was already playing host to coronavirus. With each breath Dec. 2, he likely sent ten of thousands of microscopic viral particles into the air; exposing lawmakers, staff and the public.

The following Sunday, with Giuliani in a Washington, D.C., hospital, Ingham County Health Officer Linda Vail knew from the basic science there was no way the former New York City mayor wasn’t potentially infectious that Wednesday. Despite being unable to get case information about him, she made a call as a public health officer: His testimony served as a prolonged exposure of coronavirus and everyone present that day needed to quarantine.

Lawmakers, including Speaker Lee Chatfield (R-Levering), denied there was a risk. That left Vail, and Ingham County Prosecutor Carol Siemon struggling on what, if any, actions the Michigan Public Health Code empowered them to take to prevent those exposed from violating the quarantine. Siemon sought advice from the office of Attorney General Dana Nessel, but a spokesperson said the office didn’t advise local health officials or prosecutors about potential enforcement actions.

If the Legislature had been a business, Vail could have gone in and shuttered operations. But the Legislature is quite defensive of its powers as a separate branch of government — as witnessed by its successful lawsuit to nullify Gov. Gretchen Whitmer’s emergency declarations and executive orders.

That left Vail, Siemon and others asking what can be done if the Legislature is identified as a potential source of spread of a disease, and lawmakers themselves ignore quarantine directives?

Did Giuliani bring COVID-19 with him to Lansing?

To find out, Michigan Advance reached out to public health law experts and asked. What unfolded were detailed conversations about the law, the public health powers and ultimately the potential political fallout of using those powers against the Legislature or individual lawmakers. Video interviews follow below.

Lance Gable, Associate Professor of Law, Wayne State University

Lance Gable is an associate professor of law at Wayne State University. His legal specialty is public health. He said the Michigan Public Health Code empowers state and local health authorities “with authority to impose quarantine or isolation orders on people if they pose a threat to the public’s health.”

But, as noted, some politicians challenged Vail’s determination. Gable said that’s not how it works.

“The local officials do have the authority to determine what they consider to be a sufficiently close contact or a sufficiently risky interaction to require these kinds of orders. Now, one thing that’s really important is that if a quarantine order is imposed on someone, they don’t just have to accept that without any protests; they could potentially challenge that. They could appeal that to a court and a court would evaluate whether the local health officer has met the standard that’s outlined in the law for being an imminent threat or an imminent risk to other people,” he said.

“And that’s something that we’ve seen. We saw that a few years back when there were some people who were quarantined for potential Ebola exposure, who had come back into the country after being abroad in West Africa treating patients with Ebola. They’d come back. They didn’t have symptoms. They were put into quarantine orders in several different states, not here in Michigan, but elsewhere. And when they challenged those orders, they won because the court determined that there was no risk because the Ebola [virus] is not a disease that spreads when people are asymptomatic, so the science didn’t support quarantining those people until they developed some kind of symptoms.

“COVID-19 is different. Obviously, we know that you can spread the disease before you develop symptoms, so it’s more likely that a court is going to be deferential to that interpretation. Again, as long as the health officer is not imposing quarantine orders in a really broad way where there’s no evidence of the potential for that exposure. Here, we’re talking about people who were sitting in close contact in an enclosed area for lengthy periods of time, taking some precautions, but maybe not all of the precautions that we would want people to take. That’s going to be a judgment call, but that judgment call is usually going to be left up to the health officer, and if a court evaluates that they’re going to take testimony as to what the scientific evidence is for imposing this order on people to prevent the risk.”

View the full interview with Gable:

Renee Canady, CEO, Michigan Public Health Institute

Canady Canady serves as the chief executive officer of the Michigan Public Health Institute. The nonprofit works to enhance population health as well as collaboration in public health activities. She’s served as the health officer in Ingham County, as well as in roles in academia. She holds a Ph.D. in medical sociology from Michigan State University.

She said the question of enforcement authority contrasted with the separation of powers theory is a “great question.”

“I think the challenges that we’re experiencing in this particular case with the local public health authority and our legislature is really a reflection of a larger matter. So, you know, people didn’t really understand public health and they didn’t really understand the authority of the local officer. There’s a reason why health department directors also have the title of health officer, and that officer, the use of that term officer really speaks to authority. People didn’t really understand that. You know, when public health is going really well, it can sometimes seem invisible, but when the public health rubber meets the road, if I can use that phrase, everybody’s like, ‘Oh, my goodness, what are we going to do? What are we going to do?’ And that’s what you see public health officers and leaders kind of running to the fire,” she said.

“So they have broad sweeping authority. I will never forget when I was appointed by the commissioners, my predecessor, Dr. Dean Seinko, who was absolutely a phenomenal leader to serve under, he said, ‘You have broad authority. You know, get in that public health code, understand it as a tool that you can use to assure the health and wellbeing of this community.’ And so now people are starting to see that yes, there is some vast authority that local health officers have.

“The challenge is I think two things: One is relationships. I have lived my career leveraging, building, advancing relationships. And I think the first relationship that we have is in an authoritative perspective. It’s a little bit harder, but which relationships do local health officers need to advance and which ones can they save for another day? So I think that these actions are being executed sometimes in the absence of relationships, which then makes people more comfortable kind of pushing back. And, you know, the challenge is then, what discretion do you have, do you execute in terms of advancing your authority?”

Listen to Renee Canady’s full interview here:

Peter Jacobson, director, Mid-States Region of the Network for Public Health Law and Denise Chrysler, co-director, Mid-States Region of the Network for Public Health Law

Peter Jacobson is co-director of the Network’s Mid-States Region Office and Professor Emeritus of Health Law and Policy, and Director, at the Center for Law, Ethics, and Health, at the University of Michigan School of Public Health. Denise Chrysler is the co-director of the Network. Previous to that, she provided legal advice to the Michigan state public health program for 27 years.

Both lawyers agreed the unique situation with Giuliani and the state House posed significant questions, ethically and legally, for a public health official.

“When you look at the public health code, there is nothing that limits the powers of either the state health director or the local health director to adopt public health requirements through their orders or through regulations,” said Chrysler. “I would think it would get more complicated with enforcement if you would prohibit or interfere with the legislature actually convening and doing their job, just in the same way there might be questions if you prohibited the Michigan Supreme Court, or the courts from convening and doing their job.”

Jacobson added, “If I’m the health officer, I’m basically in the situation, if I do nothing, I’m sending a clear message to my constituents, to the public, that it’s OK. I really don’t mean to enforce or think that the orders are important. Realistically, I probably can’t enforce it. Law enforcement is unlikely to break up a Giuliani type escapade, as offensive as I may find it as a health officer. So, I have to do something. I simply cannot keep quiet. So I would at a minimum, use the bully pulpit. Make a loud and clear statement that this is inappropriate. It’s likely to spread disease. It’s an affront to the public, and they should be shamed for doing it. I wouldn’t use that word, but you know as well as I do that this group is beyond shame.But, I need to send that message very clearly to the public that this is not acceptable. Even if I can’t enforce it.”

Watch the entire interview with Jacobson and Chrysler here:

This story was originally published by the Michigan Advance. For more stories from the Michigan Advance, visit MichiganAdvance.com.