Representative Barry Nervus is a member of your state's House of Representatives. Rep. Nervus read several articles by experts from the School of Public Health about emerging infectious diseases. The articles made him concerned about the state's ability to prevent or control epidemics. He is especially worried about the possibility that people could be infected with a new strain of avian influenza virus (commonly referred to as bird flu) because tens of thousands of chickens in the State have been sacrificed this year when avian flu was found in the flock. In China there have been more than 1500 human cases of avian flu since 2013. 40% of the people with laboratory confirmed cases of avian flu died in these epidemics. Laboratory testing is required to confirm human cases of avian flu. Clinical signs and symptoms are not enough. Poultry are the primary source of avian influenza virus. According to experts, most cases of human infection resulted from the individual being in direct contact with infected poultry and not from being in contact with another infected person. Person-to-person transmission is extremely rare but it is possible that the flu could mutate and be able to jump from person to person. No avian flu virus has been found in people in the United States this year but it is present in some chicken flocks.

Rep. Nervus is troubled by the possibility of a human epidemic, because poultry farms and processing plants employ a significant percent of the workforce in his state.The U.S. had several outbreaks of a different avian influenza virus in commercial poultry flocks in the past 8 years, with 3 human infections.

To prevent an avian flu epidemic in his state, Nervus drafted a bill that he hopes his colleagues in the legislature will enact into law. Under his law, if a state public health official suspects that a person within the state may have been exposed to any poultry infected with avian influenza viruses, the official is authorized to apply to a district court judge for an order for that person to be taken into custody and confined to a hospital or other facility where the individual can be isolated from contact with anyone except medical personnel. Judges are authorized to issue the requested order based on a sworn statement by the public health official that the official has reason to believe the individual was exposed to infected poultry. If, after 15 days of confinement, the individual has no signs or symptoms of the disease or laboratory tests for avian flu virus are negative, the public health officials are authorized to release the individual.

Rep. Nervus knows almost nothing about constitutional law, so he is relying on you to analyze his bill and tell him whether it is constitutional to confine someone for this reason. But, he doesnot want you to address any procedural due process issues related to his proposal, because he already understands procedural due process.

1. What specific claim is a person challenging the law likely to make? What is the legal question a court might be asked if the State passed the law Rep. Nervus is proposing? Who is likely to bring a challenge?

2. What legal/constitutional arguments is the challenger likely to make? Explain the basis in law/Constitution for these arguments. What specific standards/tests would the challenger want the court to apply?

3. What legal/constitutional arguments is the State likely to make to defend its position that the law is valid? What standard of review would the State ask the Court to use?

4. Which side do you think would win? Why?