The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The ongoing controversy over quarantine between those calling for quarantine and those who see it as violation of rights demands a compromise. Quarantine is harsh, as people are deprived of their liberty for no fault of their own. Aside from the inherent burden of confinement, those quarantined may also face financial losses from not being able to work.
Nonetheless, when faced with the risk of a destructive epidemic, quarantine is justified. The potential costs to society in loss of life, panic and disruption can far exceed the individual costs of quarantine. But that does not mean the burden should fall entirely on the unfortunate individuals subject to isolation. A better policy would be to quarantine when necessary—but partially compensate those who bear the burden on behalf of society.
In other words, quarantined people should be paid. New York State has apparently adopted this policy to a limited extent, but other states imposing quarantines have yet to follow suit.
Aside from being fair—spreading the costs across taxpayers rather than letting them fall entirely on innocent individuals—compensation offers several practical advantages. First, it reduces avoidance and hiding from quarantines. Given that those needing to be quarantined have the best knowledge of whether they fit the profile, promoting voluntary compliance is a major, life-saving benefit. Second, decreasing the hardship of quarantine should reduce the political reluctance to impose such measures at the appropriate time—early, before things have gotten out of hand.
Typically, when the government needs someone property for a public use, it must compensate them. But if the government needs someone's time, or personal services, it can only take it with their consent. That is because liberty is different from property, both more valuable and harder to price.
There are a few special contexts where the government can take a person's liberty because of particular social need. The major cases are military conscription, jury service—and quarantines. As a constitutional matter, it is clear the government can quarantine people, as surely as it can draft them; and while this is a massive suspension of rights, it is not a violation of them.
However, in the rare cases when the government is allowed to "take" a person's liberty, it can do so even more freely than with property. That is, while property taken for public use requires paying compensation, taking peoples' freedom and time, does not.
To put it it academic terms, liberty is typically protected under the Constitution by a "property rule," and property with a liability rule. However, when the property rule protection of liberty is taken away, what is left is not a liability rule, but rather a zero compensation rule. In my academic work, I've examined this puzzle and suggested situations where a liability rule for liberty would be preferable.
The government has wisely always chosen, voluntarily, to pay conscripts and jurors, albeit an under-compensatory amount. One reason is to discourage avoidance, such as draft-dodging. Policing against avoidance can cost more than modest payments, and be less effective (consider the guard detail posted on the Maine nurse). Of course, the jury service example shows that low levels of payment will both lead to massive avoidance, as well as affecting the composition of those who show up.
For an Ebola quarantine, both these problems are unacceptable. Unlike with juror service, some people avoiding quarantine can entirely eliminate the public benefit from quarantining other people. That is to say, if some people spread the virus by avoiding quarantine, and it becomes even a local epidemic, it will not make anyone feel better than another 100 were successfully quarantined.
Moreover, the grossly inadequate compensation is particularly inappropriate for quarantine. In jury service and the draft, individuals are more or less fungible above a certain qualification threshold. With quarantine, on the other hand, one needs to get the right particular people—those who may have been exposed. Substitution won't do. And many of those who have to be quarantined are health care workers, earning above-average salaries. To be effective, compensation for them must take into account their greater financial losses.