Why the Kenya Ebola Facility May Be Unconstitutional
Why "we won't help you come back" may violate the same rights as "you can't come back."
What I learned on today’s White House presser.
The Trump administration says it will not bring Americans with Ebola back to the United States. Instead, sick and exposed citizens will be sent to a facility the government is building at Laikipia Air Base in Kenya. Secretary of State Marco Rubio put it plainly at a Cabinet meeting this week: the administration “cannot and will not allow any cases of Ebola to enter the United States.”
In 2014, Americans who caught Ebola in West Africa were flown home. They were treated at Emory, Nebraska Medical Center, the NIH, and Bellevue in New York. These are the best isolation units in the world. Eight of those nine patients survived. The one who died — Dr. Martin Salia, a Sierra Leonean-American surgeon — arrived in extremely critical condition after delayed evacuation.
Now the government is building something else. A White House press call today laid out the details: Phase 1 is a 50-bed quarantine unit, opening May 29th. Phase 2 adds 12 isolation beds and 4 high-level containment beds, but no timeline. The facility will have antibody drugs, antivirals, and respiratory support (supplemental oxygen?). It will be staffed by US Public Health Service officers trained at Andrews Air Force Base.
According to senior administration officials, patients requiring higher level care will be flown to tertiary care centers in Europe, but the administration hasn’t identified which European hospitals would be receiving those patients. And the US isolation units, built with billions of US tax dollars and with a proven track record, will sit empty.
The moral objections are obvious. Dr. Craig Spencer, the emergency physician who survived Ebola in 2014, called it moral abdication. Lawrence Gostin, who directs the O'Neill Institute for National and Global Health Law at Georgetown, called it “reckless, unethical & possibly unlawful.”
You don’t need a travel ban to lose the right to travel.
The Fifth Amendment says the government cannot take away your liberty without due process of law. The Supreme Court has held that the right to travel, including the right to leave the country and come back, is part of that liberty.
In Kent v. Dulles in 1958, the Supreme Court struck down the State Department’s refusal to issue passports based on political beliefs. It held that travel is a liberty interest. The government needs a strong reason and a fair process to limit it. Six years later, in Aptheker v. Secretary of State, the Court struck down a law that barred certain citizens from using passports. Americans have a right to enter their own country, it ruled.
The Kenya policy doesn’t formally bar anyone from coming home. There’s no executive order. No travel ban naming US citizens. But it gets the same result through logistics. If you’re an American health worker who gets Ebola while working in eastern Congo, you cannot get yourself home. You are too sick, too remote, and too contagious to fly commercial. The US government controls the only way out. And it has decided to send the plane to Kenya.
The government isn’t saying “you can’t come back.” It’s saying “we won’t help you come back, and you can’t do it on your own.”
Courts tend to look past the form to the substance. What matters is whether the government’s actions block you from using a right.
Four tests. The Kenya facility fails all of them.
The federal government does have the power to quarantine people to stop the spread of disease. Section 361 of the Public Health Service Act gives the HHS Secretary broad authority to keep communicable diseases from entering the country. That power is real.
But it was designed to set the terms of entry: screening, isolation on arrival, and watched release. It was not designed to stop citizens from entering at all.
The US tested those limits during the 2014 Ebola outbreak. Kaci Hickox was a nurse who treated Ebola patients in Sierra Leone. When she flew back to New Jersey, Governor Chris Christie ordered her held in a tent even though she had no symptoms and tested negative. The ACLU and Yale found the 2014 quarantines were medically unjustified and unconstitutional. West African immigrants in Connecticut sued over their quarantine orders.
From those cases came a set of rules courts now use. Quarantine must be narrow. It must be based on a case-by-case risk review, not a blanket rule. It must use the least harsh option. And it must include basic protections: notice, the right to a lawyer, and the right to fight the order.
The Kenya facility meets none of these. There’s no case-by-case review. The policy covers all Americans in the region. There’s no hearing. There’s no way for an American to challenge where they’re being sent. And it is not the least harsh option: the US has a network of biocontainment units across the country. The government is choosing not to use them.
The clinical story doesn't hold up.
The Fifth Amendment doesn’t just protect procedure. It protects substance. The government cannot act in ways that “shock the conscience,” as the Supreme Court put it in County of Sacramento v. Lewis.
The US has isolation units that are the global gold standard for Ebola care. Eight of nine Americans treated in them in 2014 survived. The Kenya facility, by the administration’s own telling, is like the Monrovia Medical Unit from 2014-15 — a field hospital, not a high-level ICU. The backup care chain hasn’t been built.
Sending Americans to a field hospital with no clear backup plan if patients get worse — a court could find that shocks the conscience.
The distance argument doesn’t hold up.
There’s also an equal protection problem. In 2014, American Ebola patients got the best care in the world. In 2026, the plan is to keep them in Kenya. Same disease. Same kind of people: health workers who went to fight an outbreak. What changed?
The administration says distance. Senior administration officials argued that flying patients to Kenya takes less time than flying them to the US, and faster care saves lives.
But the government said on the same call that it can give antibody drugs during the flight. And antibody drugs aren't the only thing you can deliver in the air. The aircraft used for these evacuations — Phoenix Air's modified jets with containment pods, or the military's systems on C-17s — are flying ICUs. They carry IV fluids, antivirals like remdesivir, drugs to maintain blood pressure, oxygen, cardiac monitors, and portable lab analyzers to track blood chemistry in real time. The time-to-treatment argument gets a lot weaker when treatment starts in the air.
Nearly everything the Kenya facility offers can be given on a longer flight home. What requires a higher level of care? Mechanical ventilation, dialysis, and ECMO (heart-lung bypass machine). The care gap between “on the plane” and “Kenya” is small. The care gap between “Kenya” and “Emory or Nebraska” is enormous.
The flight times make this concrete. From Kenya to Europe, where the administration says tertiary patients will go, it's 8-9 hours. From Kenya to the East Coast, it's 13-15 hours, 5-6 hours longer. If a patient is stable enough to fly 8-9 hours to an unnamed hospital in Europe, they are stable enough to fly 13-15 hours to Emory or Nebraska — on a plane that can deliver ICU-level care the whole way. In 2014, direct flying time from Monrovia to Atlanta was roughly 10-11 hours, with fuel and crew stops adding to the total journey. Every patient who was evacuated to the US survived the flight.
I posed this question on the call: “You said that the reason for caring for Americans with Ebola in Europe is transport time, but Secretary of State Rubio said the administration ‘cannot and will not allow’ Ebola cases into the US. That does not sound like a medical, clinical decision. What political factors came into play in making that decision?”
Senior administration officials answered that keeping Ebola out of the US and giving good care are “not mutually exclusive.” If a court finds the routing choice is driven by politics, the equal protection claim gets stronger. The government is treating the same kind of people differently based on the political mood, not the medical facts.
The PHS officers didn’t volunteer for this.
Thirty-plus Public Health Service officers trained at Andrews this week and deployed to Kenya Wednesday night. More are training this weekend. If any of them get sick, they will depend on the same field-level facility the government just built.
The government-created danger doctrine, recognized in several federal courts, says that when the government puts someone in danger through its own actions, it takes on a duty of care. These officers are being sent into an Ebola zone by federal deployment. The government built the care system they’ll rely on. And that system, as described, tops out at field-level isolation, with a backup plan that leads to unnamed hospitals in Europe.
If an officer gets sick and the system fails — if the backup hospital hasn’t been lined up, if the flight to Europe takes too long, or if the field unit can’t handle a critical case the way Emory or Nebraska could — the government faces a claim that it created the danger and then failed to provide the care.
Where the administration’s defense breaks down.
The most likely legal fight starts with the American Foreign Service Association, which has already called on the State Department to bring exposed workers and their families home. A lawsuit filed for a sick or quarantined American in Kenya might argue:
First, that the policy takes away a protected liberty, the right to come home, without due process. No notice, no hearing, no case-by-case review, no way to fight the decision.
Second, that the government has less extreme options, domestic biocontainment units, and is choosing not to use them for political reasons.
Third, that the policy shocks the conscience: turning citizens away from better care in their own country, without a clear backup plan.
The administration might defend based on the Public Health Service Act, the president’s broad power over foreign affairs and military operations, and the medical case that being closer to the outbreak zone means faster care. The administration may think it’s safe because no document says “Americans cannot return.” But the Constitution doesn’t need a signed order to apply. It kicks in whenever the government takes away your liberty.