1.11 The United States Constitution and Public Health
We the People of the United States, in Order to form a more perfect
Union, establish Justice, insure domestic Tranquility, provide for the
common defence, promote the general Welfare, and secure the
Blessings of Liberty to ourselves and our Posterity, do ordain and
establish this Constitution for the United States of America. U.S.
A. Federal Constitution Generally Silent. Though the preamble of the United States Constitution does refer to promotion of the “general Welfare”, the remainder of the Constitution, including the Amendments, provides no specific role for the federal government in matters of public health. Viewed in conjunction with the Tenth Amendment’s reservation of undelegated powers to the states, this indicates that the federal government’s public health powers are limited to those subjects that fall within its jurisdiction (defense, interstate commerce, and tax powers) and that responsibility for safeguarding public health in other areas falls largely to the states. See, e.g., Carolene Products Co. v. Evaporated Milk Ass'n, 93 F.2d 202, 204 (7th Cir. 1937) (“While the police power is ordinarily said to be reserved by the states, it is obvious that it extends fully likewise to the federal government in so far as that government acts within its constitutional jurisdiction…The police power referred to extends to all the great public needs…Its dimensions are identical with the dimensions of the government’s duty to protect and promote the public welfare.”)
In addition, the federal government is responsible for protecting the public health in discrete geographic areas directly under its control (e.g., military bases).
B. Federal Public Health Statutory Powers. Pursuant to its enumerated powers, the federal government may exercise some public health functions. For example, as defined by statute, the Secretary of the U.S. Department of Health and Human Services may declare and respond to public health emergencies, restrict the movement of, or quarantine, persons arriving from foreign countries or in interstate travel to prevent the spread of specified communicable diseases, cooperate with and assist states in the enforcement of quarantine, maintain a national pharmaceutical stockpile of drugs, vaccines and supplies to provide for the emergency health security of the United States, and regulate biological products. See 42 U.S.C. §§ 262-271, 300hh-12; infra § 5.34. The federal government may also assume responsibility for public health emergencies precipitated by acts of war or terrorism.
1.12 States as Primary Actors
In all other cases, the states bear the primary responsibility for preventing and responding to threats to the public’s health. See, e.g., Jacobson v. Massachusetts, 197 U.S. 11, 38 (1905) (“The safety and health of the people of Massachusetts are, in the first instance, for that commonwealth to guard and protect. They are matters that do not ordinarily concern the national government.”); Compagnie Francaise v. Louisiana Bd. of Health, 186 U.S. 380, 387 (1902) (“That from an early day the power of the states to enact and enforce quarantine laws for the safety and the protection of the health of their inhabitants has been recognized by Congress is beyond question. That until Congress has exercised its power on the subject, such state quarantine laws and state laws for the purpose of preventing, eradicating, or controlling the spread of contagious or infectious diseases, are not repugnant to the Constitution of the United States, although their operation affects interstate or foreign commerce, is not an open question.”).
Moreover, states will almost certainly be required to provide significant assistance and resources during public health emergencies falling within the federal government’s jurisdiction.
A. The Source of the State’s Public Health Authority. The power of the state to protect the public’s health is derived from the police power.
- The police power. The “police power” is the power to promote the public safety, health, and morals by restraining and regulating the use of liberty and property. See Medtronic, Inc. v. Lohr, 518 U.S. 470, 475 (1996) (“Throughout our history the several States have exercised their police powers to protect the health and safety of their citizens. Because these are primarily, and historically, matters of local concern, the States traditionally have had great latitude under their police powers to legislate as to the protection of the lives, limbs, health, comfort, and quiet of all persons.” (Internal citations omitted.)).
- Police power purposes and limitations as described in Washington case law. "However difficult it may be to give a precise or satisfactory definition of 'police power,' there is no doubt that the state, in the exercise of such power, may prescribe laws tending to promote the health, peace, morals, education, good order and welfare of the people. Police power is an attribute of sovereignty, an essential element of the power to govern, and a function that cannot be surrendered. It exists without express declaration, and the only limitation upon it is that is must reasonably tend to correct some evil or promote some interest of the state, and not violate any direct or positive mandate of the constitution." Snohomish County Builders Ass'n v. Snohomish Health Dist., 8 Wn. App. 589, 598, 508 P.2d 617 (1973) (quoting Shea v. Olson, 185 Wash. 143, 153, 53 P.2d 615 (1936)).
B. The Washington State Constitution.
- The State Board of Health established. "There shall be established by law a state board of health . . . with such powers as the legislature may direct." Wash. Const. art. XX, § 1. See infra § 3.20.
- Local governments may pass rules and regulations concerning public health. Any county, city, town or township may make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws. Wash. Const. art. XI, §11. RCW 70.05.060 provides that local boards of health shall have supervision over all matters pertaining to the preservation of life and health of the people within its jurisdiction. See infra § 3.40.