The second-biggest outbreak of Ebola in history has been raging for eight months in eastern Congo. Notwithstanding the truly heroic efforts of the Congolese government, international aid agencies, and the Congo’s U.N. Peacekeeping force, it’s getting worse. As of April 16, 833 people have died.
Ebola is now appears to be a preventable disease. A vaccine completed at the tail end of 2014 West African outbreak has been highly effective where used, although experimental evidence is lacking.
Also raging in east Congo is the Kivu Conflict, an interminable war involving government forces, Hutu Rwandan génocidaires and Islamists, among others. The war has seriously hampered efforts to curb the spread of the disease and administer the vaccine to those who may have been exposed. Earlier this month, a militia killed a WHO doctor and injured two others. Doctors Without Borders has evacuated several infected cities after attacks that burned down their facilities. Last year, the United States ordered the CDC’s experienced Ebola experts out of the zone of conflict.
The United States, of course, could stop this. A small U.S. military intervention with offensive authorization and an agreement with the Congolese government could secure the affected cities, protect local and international aid workers, and help administer the vaccine. This is something that the United States ought to do.
Indeed, many of the ordinary objections to American intervention do not apply. This would not be an exercise in nation-building. It would have a definite time horizon: it would end when the outbreak is curbed. While surely there would be geopolitical implications, there are no allies of Ebola waiting to fight a proxy war.
However, such a novel intervention—the use of bona fide military force to mitigate and epidemic that has little chance of spreading internationally—would raise legal questions, including question of constitutional law about whether the President could authorize such an intervention unilaterally or if the victims of Ebola must wait on congressional time. In short, I argue here that the power to unilaterally authorize disease-preventing military interventions must reside unilaterally in the President through the commander-in-chief clause because it must reside somewhere, and that U.S. presidents should begin authorizing such interventions to build constitutional precedent.
The question of the scope of the president’s unilateral military powers has consumed countless pages of legal debate over the past century with what would appear to be little progress and less consensus. The answer may simply be indeterminate. Since Justice Jackson, then, this analysis has largely proceeded by comparison of the uncertainty with established benchmarks.
In this case, there is no obviously accepted hook of executive authority that would permit a unilateral disease-preventing military intervention. It is well accepted that the President can act unilaterally and with discretion pursuant to authorization from Congress. Indeed, the executive has flexibly responded to the threat of radical Islam with force around the world on the basis of the 2001 congressional Authorization of the Use of Military Force against the perpetrators of the September 11 attacks. There are Islamists in Kivu, but it’s a stretch.
Similarly broadly accepted is the President’s ability to unilaterally respond to immediate threats to national security. This appears to have been the basis for the deployment of the military to Liberia during the 2014 Ebola epidemic. But that basis was surely strengthened by the WHO’s declaration of the epidemic as a Public Health Emergency, which they have thus far declined to do with respect to the Congo.
Ironically, it is the same thing that makes this outbreak so tragically preventable and that makes it implausible for the president to intervene on national security grounds. The availability of the vaccine means that any outbreak in the west could be contained relatively quickly. This was not necessarily true when President Obama ordered intervention in Liberia in 2014, and would seem to undercut the legitimacy of a national security basis for intervention.
From this, one might conclude that it must be up to Congress to authorize intervention in the first instance. But that cannot be right. In pertinent part, the Constitution grants Congress the power to “declare war.” Whatever that might mean at the edges, a limited intervention to combat disease is plainly not war. At the very least, the language must mean that Congress can declare war against something. Metaphors notwithstanding, one cannot declare war on Ebola.
Does this mean the United States is legally powerless? That the president has no power to intervene on his own and Congress lacks the enumerated power to authorize him to do so? Perhaps. But in the words of Justice Holmes in Missouri v. Holland, “it is not lightly to be assumed that . . . a power which must belong to and somewhere reside in every civilized government is not to be found.” The United States must be able to do this. It is a moral imperative of modern statecraft. Even the most hardnosed isolationist must admit there are some hypothetical instance where the U.S. must be able to intervene to stop the spread of disease even in the absence of a plausible threat to national security. That is all that is needed to show that this power must constitutionally reside somewhere.
And it must reside in the executive. The constitution describes the president as commander-in-chief of the armed forces. It is not obvious that this language includes commands to capture cities and administer vaccines. But surely it is plausible that it does. And given the fact that this power must reside somewhere, and that it cannot reside in Congress, the commander-in-chief clause ought to be interpreted to cover this situation.
President Trump ought to work with the Congolese government and authorize the U.S. military to assist as agreed in fighting Ebola in Kivu. At best, the success of this mission would build powerful precedent for the constitutionality of such interventions and may build stability in the region through the process of fighting the disease. At worst, it will save a few lives.
James Toomey is a 2018-2019 Petrie-Flom Center Student Fellow.