Wendy E. Parmet

Excerpted from: Wendy E. Parmet, After September 11: Rethinking Public Health Federalism , 30 Journal of Law, Medicine and Ethics 201, 202-204 (Summer, 2002)(footnotes omitted)

In recent years, the U.S. Supreme Court has embarked on a reexamination of the relationship between the states and federal government. The resulting doctrinal shift, sometimes referred to as the "new federalism seeks to re-establish a preeminent role for the states.

 It is beyond question that states matter in our constitutional design. Nevertheless, the Court's new doctrine, which relies heavily on a rigid and categorical view of the boundaries between federal and state power, may jeopardize the ability of the federal government to work either alone or with the states to protect the public health For most of American history, states and localities were the primary source of public health protection. The danger today arises not from valuing the important role that states have always played and must continue to play with respect to public health. Rather, the danger arises from applying rigid notions of federalism and simplistically concluding that because states have traditionally been the dominant players in public health, the Constitution grants that power to them exclusively, thereby rendering federal involvement in areas relating to health suspect. A careful reading of the history of public health law in the United States cannot support this interpretation.

  The idea that public health protection is a matter of state law is not new. Its origins can be traced to the Federalist Papers which refers to the "domestic police" of the states as among those powers that the federal government would not assert. More definitively, the association was asserted by Chief Justice Marshall, in Gibbons v. Ogden, when in upholding federal authority to regulate steamships crossing New York harbor, he spoke of the powers of the state as including "that immense mass of legislation which embraces everything within the territory of the state, not surrendered to the general movement .... Inspection laws, quarantine laws, health laws of every description ... are components of this mass.

  Marshall's statement in Gibbons can be read as an assertion of state primacy over public health. But, in fact, Marshall was actually suggesting a more complex relationship. Marshall, after all, was not arguing that the states had exclusive or even dominant power with respect to health. Indeed, his dicta derived from a case in which he recognized the plenary nature of Congress's power to regulate interstate commerce. Thus, in noting that health laws were part of the police power of the states, Marshall was simply making clear that the power to protect the public health is an inherent and undeniable aspect of sovereignty that states may exercise unless and until Congress preempts that power by exercising one of its own enumerated powers

State power to protect the public health

  In the decades that followed Gibbons, courts further explored the relationship between the states and the federal government with respect to public health. Following Gibbons, cases generally stressed the ability of the states to act in order to protect health, while not denying that state action may be overridden by federal legislation authorized by any of Congress's enumerated powers.

  Prior to the Civil War, the federal government was not very actively involved in public health (or many other domestic matters) As a result, few cases challenged federal action. Instead, they asked whether state public health laws were permissible, generally by bringing a challenge under the so- called dormant Commerce Clause In deciding these cases, the federal courts often stressed the right of states to pass health laws even if the operation of such laws interfered with the free flow of commerce. Thus, in the Passenger Cases, the Supreme Court affirmed: "That the States ... may in the exercise of their police powers, pass quarantine and health laws, interdicting vessels coming from foreign ports or ports within the United States, ... and that such laws, though affecting commerce in its transit, are not regulations of commerce ... but precautionary regulations to prevent vessels engaged in commerce from introducing diseases into the ports to which they are bound ....

  Although a thorough examination of the Supreme Court's complex nineteenth century dormant Commerce Clause doctrine is beyond the scope of this article it suffices to say that in many cases the Court cited health regulations, of one form or another, as among those regulations that did not violate the Commerce Clause This is not to say that every time a state claimed its regulation aimed at protecting health the Court would uphold it The Court was wary of the states using their public health power pretextually to promote economic protectionism. However, as the Supreme Court noted in 1994, "For Commerce Clause purposes, we have long recognized a difference between economic protectionism, on the one hand, and health and safety regulation on the other. When the Court believed that a regulation truly aimed to protect health, the regulation was found to be constitutional.

  During the nineteenth century, state public health laws were also challenged at the state level, as a violation of property or other individual rights. It is in these cases, which generally affirmed the power of states to protect public health, often by relying upon the common law maxim salus populi suprema lex, that courts most clearly expounded upon the idea of the police power and trumpeted the inherent right of states to take actions to protect health and safety. For example, in Morris v. City of Columbus, the Georgia Supreme Court stated, "Danger to public health has always been regarded as a sufficient ground for the exercise of police power in restraint of a person's liberty. The Maine Supreme Court stated in 1874, "When the small-pox or any other contagious disease exists ... the law demands the utmost vigilance to prevent its spread .... Salus populi suprema lex -- the safety of the people is the supreme law.

   This belief that the states have an inherent authority to take measures to protect the public health became incorporated into Fourteenth Amendment jurisprudence as soon as that amendment reached the federal courts. In the Slaughter-House Cases, for example, the U.S. Supreme Court asserted that the "[r]ights and privileges arising from contracts with a State are subject to regulation for the public health, the public morals, and the public safety. Likewise in Boston Beer Co. v. Massachusetts, the Supreme Court asserted that "Whatever differences of opinion may exist as to the extent and nature of the police power ... [t]here seems to be no doubt that it does extend to the protection of the lives, health and property of the citizens .... They belong emphatically to that class of objects which demand the application of the maxim, salus populi suprema lex .... And when the constitutionality of a Massachusetts vaccination law was challenged, the Supreme Court held that "[a]lthough this court has refrained from any attempt to define the limits of that power, yet it has distinctly recognized the authority of a State to enact quarantine laws and 'health laws of every description." Indeed, so clear was judicial recognition of the states' right to protect public health that when the Court in the early nineteenth century found state laws to violate the Fourteenth Amendment, it often did so only after noting that the particular law at issue was not a health regulation

  Despite this close association in the case law between state authority and public health, the Court seldom suggested that the states had exclusive power in matters relating to health. Thus in 1913, in Morgan's Louisiana & T.R. & S.S. Co. v. Board of Health of Louisiana the Court stated, "While it may be a police power in the sense that all provisions for the health, comfort and security of the citizens are police regulations and an exercise of the police power, it has been said more than once in this Court that where such powers are so exercised as to come within the domain of Federal authority as defined by the Constitution, the latter must prevail. In other words, the judiciary's claim that the states had the power to protect public health should more properly be read as a rejection of public health laissez faire than an assertion of state hegemony in the field.

  Only rarely was the idea of the police power used to restrict federal authority. Perhaps the closest the Court came to making that argument was in Hammer v. Dagenhart, in which the Supreme Court found that the federal Child Labor Act exceeded Congress's power to regulate interstate commerce in part because Congress was attempting to achieve an end that properly belonged to the states' police power. Despite that Court's flirtation at the turn of the nineteenth century with the idea of exclusive areas of state power, the Court never actually held that the federal government lacks the ability to use its enumerated constitutional powers to protect public health or that public health protection was somehow outside the bounds of federal attention. Moreover, while the states were the primary locus of public health protection prior to the mid-twentieth century, the federal government was never uninvolved in public health protection. As the Supreme Court itself has stated: "Despite the preeminence of the States in matters of public health and safety, in recent decades the Federal Government has played an increasingly significant role in the protection of the health of our people."

The federal government's role

  The federal government's involvement in public health dates back to the early years of the Republic. In 1798, for example, Congress established the United States Marine Hospital Services, in order to provide for the care of sick sailors. This service eventually became the Public Health Service. Not surprisingly, federal involvement grew during the Civil War, as the federal government became involved both with the health-care needs of soldiers and the public health problems facing the occupied Southern territory. During that period, Congress also created the Bureau of Chemistry, which eventually led to the creation of the Food and Drug Administration (FDA) in 1906.

  Federal activity in public health continued to grow throughout the twentieth century. The Federal Maternity and Infancy Act of 1922 provided for the provision of health-care services to infants and mothers. The New Deal also saw the enactment of the Federal Security Agency, the precursor to the Department of Health and Human Services. In 1946 Congress enacted the Hill Burton Act, which provided for federal support for the construction of hospitals throughout the nation.

  It was, however, in the 1960s and 70s that the federal government's role expanded dramatically, as the first widespread federal health insurance programs, Medicare and Medicaid, were enacted. Shortly thereafter, Congress broadened the federal role in public health with laws such as the National Environmental Policy Act and the Occupational Health and Safety Act.

  This article is not intended to provide a comprehensive discussion of all past and present federal efforts that aim at public health protection. Three points, however, warrant emphasis. First, as the discussion above indicates, federal efforts in this area are not new, although they have grown along with the size, wealth, and complexity of the nation. Second, early federal efforts were not met with resistance by the courts. Even during the era in which federal authority was interpreted most narrowly, the courts did not challenge or undermine significant federal public health efforts. This point is perhaps most apparent when we consider the creation of the FDA in 1906. The turn of the nineteenth century was, after all, the era in which the Supreme Court most narrowly construed the authority of the federal government under the Commerce Clause. Yet even though the federal government was found not to have the authority to regulate production of goods or labor conditions per se, no federal court held that the FDA exceeded the scope of congressional authority, perhaps in part because the Act itself was so clearly connected to the regulation of interstate commerce. Nor did the Supreme Court invalidate the federal government's far more dubious efforts to protect the public from the supposed harms caused by oleomargarine. To the contrary, the Court stressed that the federal authority to tax could properly be used to support that goal.

  A third point about the federal government's involvement with public health is especially worth remembering given recent events. Federal intervention in public health has often been prompted by crises, real or perceived. For example, the FDA was created as a result of the outcry following the publication of Upton Sinclair's The Jungle. More recently, in 1976, fears about a potential outbreak of swine flu sent the federal government scurrying, leading it to organize a swine flu vaccination program and to enact legislation partially immunizing the manufacturers of vaccines from their liability. In 2001, fears of bioterrorism placed the CDC and the FBI on center stage. Invariably, when public health is perceived to be in jeopardy, few people question the appropriateness of a federal role, and even fewer proclaim that public health is or ought to be left only to the states. Rather, when public health is thought to be at grave risk, the greater resources of the federal government are expected to be used either alone or, more often, in conjunction with the states. Pieties about federalism are luxuries that are seldom indulged during times of epidemic or war.