Editor's Note: Free Congress Foundation president Paul Weyrich, in his 11/19/01 commentary, "Another Conservative Gone Native," drew attention to the Model State Emergency Health Powers Act (MEHPA) that had been drafted by the Centers for Disease Control and Prevention. Weyrich noted that the American Legislative Exchange Council had reviewed the model bill and found it extremely troubling. He urged that MEHPA "be exposed to the light of day... If protests are sufficient, and if conservative legislators in state legislatures are properly alerted, perhaps there is a chance to beat back this monster." The following commentary by State Senator Jim Dunlap of Oklahoma, chairman of the American Legislative Exchange Council, demonstrates that there is still good reason to be concerned about MEHPA. Recent news coverage, including a story in The Wall Street Journal, has helped to raise the awareness of MEHPA and the threat that it poses to our civil liberties.

Since the tragic attacks of September 11, government officials have been forced to examine how states and localities would respond to any future chemical and biological attacks. The Centers for Disease Control and Prevention has recently drafted model legislation for states, which, in their words, provides a public health framework for future bioterrorist attacks. But a close examination reveals that in many respects, their proposal is severely flawed and represents a direct assault on our liberty, not enhanced protection of public health.

The proposed legislation, entitled the "Model State Emergency Health Powers Act," is already being considered by a number of states. The measure would grant state officials - the governors in particular - with sweeping, new police powers. The measure grants the governor unchecked power to declare a state of emergency. Once declared, the governor's action cannot be reviewed for 60 days. State legislators can't review it. Judges can't review it. The public can't review it. As a state legislator, I am appalled by the lack of faith in our system of government assumed under this bill, and I wonder why the measure places such great emphasis on subverting our legislative powers.

Once the emergency is declared, a state's public health officials assume sweeping powers to quarantine individuals, confiscate property, ration goods and services, compel mass vaccinations and track each citizen's health and medical purchases. These unelected health officials even assume jurisdiction over state and local police. And remember, no one can do a thing about this for two months.

Of course, we should assume that governors and public health officials wouldn't act rashly or irresponsibly. But there is a reason our system is based on a delicate system of checks and balances. Even the most well-intentioned official can do harm with unfettered power. The model law "puts the lives of an entire state in the hands of one person who may or may not rise to the occasion," says Jonathan Turley, a law professor at George Washington University. What would happen if a state had MEHPA on the books and a power-hungry leader like Huey Long or an unstable one like Earl Long sitting in the governor's chair?

This concern is even greater in this proposal, as most of the definitions are vague and open to subjective interpretation. In the original draft of the proposal, an emergency could be declared based on the spread - real or threatened - of any infectious disease. Infectious disease was defined as any disease spread by a living organism. Which diseases are spread this way, you ask? All of them. An outbreak of the flu in a town could trigger mass quarantines and internments.

Supporters of the Act claim they have made an effort to provide due process and to protect individual rights. How exactly they are doing this is unclear, as there are clear privacy intrusions woven throughout the proposal. For example, the bill requires health officials such as pharmacists to report any unusual prescribing practices or "unusual trends in pharmacy visits." What is "unusual" is, naturally, undefined. Moreover, the pharmacist must report detailed personal information about the patient, which can be shared with persons who have a "legitimate need." There may be a need for health officials to know that certain prescriptions have spiked in use, but they don't need to know that Mary Smith and John Doe are using them.

Another great concern of the bill includes the confiscation and/or destruction of personal property. The measure as originally drafted includes provisions allowing the government to ration such items as "food, fuel, clothing, and other commodities, alcoholic beverages, firearms, explosives, and combustibles..." Rounding up everyone's handgun shouldn't be the government's first priority in the event of a serious bio-terrorist threat.

We all understand that our country faces threats that just months ago were unimaginable. We should review our existing statutes for dealing with a bio-terrorist threat and place special emphasis on training medical professionals and citizen responders. But we must remember that all these measures come with a price. And as James Madison so poignantly opined over 200 years ago, "it is proper to take alarm at the first experiment on our liberties."

Sound the alarm.

Jim Dunlap, a state senator from Oklahoma, is the 2002 National Chairman for the American Legislative Exchange Council, the nation's largest bipartisan membership organization of state legislators.

© This column is the property of the Free Congress Foundation and may not be reproduced without their permission. For comments and inquiries, contact Angie Wheeler at awheeler@freecongress.org Visit our website at www.FreeCongress.org

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