Public Health Theory and Practice in the Constitutional Design

Georgetown University Law Center 2001 Working Paper Series in Public Law and Legal Theory Working Paper No. 293348 Public Health Theory and Practice in the Constitutional Design by Lawrence O. Gostin This paper can be downloaded without charge from the Social Science Research Network Electronic Paper Collection at http://papers.ssrn.com/abstract=293348 Public Health Theory and Practice in the Constitutional Design1 Lawrence O. Gostin2 [Public health law] should not be confused with medical jurisprudence, which is concerned only in legal aspects of the application of medical and surgical knowledge to individuals. . . . [P]ublic health is not a branch of medicine, but a science in itself, to which, however, preventive medicine is an important contributor. Public health law is that branch of jurisprudence which treats of the application of common and statutory law to the principles of hygiene and sanitary science. James A. Tobey (1926)3 This article examines public health theory and practice in the constitutional design. It is important first to understand what I mean by public health and how the field is distinguished from the legal regulation of health care practice and financing. I define public health law as follows: Public health law is the study of the legal powers and duties of government to assure the conditions for people to be healthy (e.g., to identify, prevent, and ameliorate risks to health in the population), and the limitations on the power of the state to constrain the autonomy, privacy, liberty, proprietary, or other legally 1 This article is based on a recent book published by the Milbank Memorial Fund and the University of California Press: LAWRENCE O. GOSTIN, PUBLIC HEALTH LAW: POWER, DUTY, RESTRAINT (2000). 2 Professor of Law, Georgetown University; Professor of Public Health, the Johns Hopkins University; Director, Center for Law & the Public’s Health at Johns Hopkins and Georgetown Universities (The CDC Collaborating Center Promoting Public Health Through Law). Professor Gostin is on the Institute of Medicine’s Board on Health Promotion and Disease Prevention and the Committee on the Future of Public Health. 3 (1926). JAMES A. TOBEY, PUBLIC HEALTH LAW: A MANUAL OF LAW FOR SANITARIANS 6–7 protected interests of individuals for protection or promotion of community health. No inquiry is more important to public health law than understanding the role of government in the constitutional design. If I am correct in assuming that public health law principally addresses government’s assurance of the conditions for the population’s health, then what activities must government undertake? The question is complex, requiring an assessment of duty (what government must do), authority (what government is empowered, but not obligated, to do), and limits (what government is prohibited from doing). In addition, this query raises a corollary question: Which government is to act? Some of the most divisive disputes in public health are among the federal government, the states, and the localities about which government has the power to intervene.4 This article views public health through the lens of constitutional law by exploring government duty and authority, the division of powers under our federal system, and the limits on government power. Part I examines constitutional duties, if any, imposed on government. It observes that the Supreme Court sees the Constitution in negative, or defensive, terms and argues that this provides a sterile, uninspiring vision of government obligation. Part II examines governmental powers under the Constitution. While the Court sees few affirmative obligations, it does acknowledge a broad governmental authority to protect the health, safety, and welfare of the population. This Part reviews the emergence of “new federalism” in Supreme Court jurisprudence, altering the power between the federal government and the states. In particular, it 4 As long ago as Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 324 (1816), the Supreme Court has puzzled over questions “of great importance and delicacy” in determining whether particular sovereign powers have been granted to the federal government or retained by the states. See New York v. United States, 505 U.S. 144, 155 (1992). inquires whether the Rehnquist Court, by restricting the scope of national authority, is seriously thwarting public health policy and practice. Having examined government duties and powers, Parts III and IV turn to the limits on public health powers. Much of the discourse in public health law has been concerned with limits. Part III explores the limits placed on government to refrain from interfering with personal freedoms (e.g., autonomy, bodily integrity, privacy, and liberty). Part IV explores limits relating to economic freedoms (e.g., economic due process, freedom of contract, and regulatory takings). Often, when the government acts to promote the health of the populace, it limits personal or economic freedoms. As a society, we face a trade-off between the common good and individual interests. Parts III and IV explore the conflicts and explain why it is imperative to highly value the collective good of public health. I. The Negative Constitution: The Absence of Government Duty to Assure the Conditions for Public Health [Nothing] in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors. The Clause is phrased as a limitation on the State’s power to act, not as a guarantee of certain minimal levels of safety and security. It forbids the State itself to deprive individuals of life, liberty, or property without ‘due process of law,’ but its language cannot fairly be extended to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means. Nor does history support such an expansive reading of the constitutional text. . . . Its purpose was to protect the people from the State, not to ensure that the State protected them from each other. The Framers were content to leave the extent of governmental obligation in the latter area to the democratic political processes. . . . William Rehnquist (1989)5 Individuals rely on government to organize social and economic life to promote healthy populations. Given the importance of government in maintaining public health (and many other communal benefits), one might expect the Constitution to create affirmative obligations for government to act. Yet, by standard accounts, the Constitution is cast purely in negative terms.6 The Constitution, it is often said, imposes no affirmative obligation on the government to act, to provide services, or to protect. For the most part, the Bill of Rights is classically defensive, or negative, in character (e.g., the First Amendment declares unequivocally that Congress may not abridge free expression). The Supreme Court remains faithful to this negative conception of the Constitution, even in the face of dire personal consequences. In DeShaney v. Winnebago County Department of Social Services (1989),7 a Wyoming court granted a divorce and awarded custody of a one-yearold child, Joshua DeShaney, to his father. Two years later, county social workers began receiving reports that Joshua’s father was physically abusing him. The suspicious injuries were 5 DeShaney v. Winnebago County Dep’t of Soc. Services, 489 U.S. 189, 195 (1989). 6 Susan Bandes, The Negative Constitution: A Critique, 88 MICH. L. REV. 2271 (1990); Mark Tushnet, An Essay on Rights, 62 TEX. L. REV. 1363 (1984). 7 DeShaney v. Winnebago County Dep’t of Soc. Services, 489 U.S. 189 (1989). carefully noted, but the department of social services took no action. Eventually, at four years of age, Joshua was beaten so badly that he suffered permanent brain injuries. He was left profoundly retarded and institutionalized. The DeShaney Court found no constitutional and judicially enforceable government obligation to protect children from harm of which the state is acutely aware. The Court held that, since no affirmative government duty to protect exists, citizens have no constitutional remedy under the due process clause.8 The Supreme Court has applied this line of reasoning in cases that bitterly divided the Court and the Nation. In Webster v. Reproductive Health Services,9 the majority saw no government obligation to provide services—in this case, medical services—for the poor,10 when a Missouri statute barred state employees from performing abortions and banned the use of public facilities for such. Referring to DeShaney, the Court rejected a positive claim for basic government services: “[O]ur cases have recognized that the Due Process Clauses generally confer no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual.”11 According to the Court, if “no state subsidy, direct or indirect, is available, it is difficult to see how any procreational choice is burdened by the State’s ban on the use of its facilities or employees for performing abortions.”12 The majority found irrelevant the fact that, if a woman is poor, her only realistic access to medical services may be through government 8 Id. at 195. 9 Webster v. Reproductive Health Services, 492 U.S. 490 (1989). 10 Laurence Tribe, The Abortion Funding Conundrum: Inalienable Rights, Affirmative Duties, and the Dilemma of Dependence, 99 HARV. L. REV. 330 (1985). 11 Webster v. Reproductive Health Services, 492 U.S. 490, 507 (1989). 12 Id. at 510. assistance. In DeShaney, Webster, and other cases13 an increasingly conservative judiciary has disavowed the idea of positive social rights by finding that the due process clause affords no affirmative obligations, but only negative liberties; government inaction is constitutionally immaterial, and government’s failure to act brings no constitutional remedy. This negative theory of constitutional design, though well accepted, is oversimplified and, in the words of Justice Blackmun, represents “a sad commentary upon American life and constitutional principles.”14 A weakness of the negative theory of constitutional law is that its distinctions, as between action and inaction, are difficult to sustain. The Supreme Court has repeatedly held that government has no obligation to prevent harms to health or to provide services to ameliorate illhealth; that is, a government act that causes harm is actionable, while government passivity in an existing state of affairs is not. Although the Court appears to know instinctively what constitutes a governmental act, the difference between an act and an omission is often difficult to determine.15 Any government failure to act is usually embedded in a series of affirmative policy choices (e.g., which agency will be established; the agency’s objectives and how its staff will be 13 Johnson v. Dallas Indep. Sch. Dist., 38 F.3d 198 (5th Cir. 1994) (finding students have no constitutional right to affirmative protection from violence at school), cert. denied, 115 S. Ct. 1361 (1995); Archie v. City of Racine, 847 F.2d 1211 (7th Cir. 1988), cert. denied, 109 S. Ct. 1338 (1989) (denying liability when a 911 dispatcher gave incorrect advice and failed to dispatch an ambulance for a caller who then died); Gilmore v. Buckley, 787 F.2d 714 (1st Cir.), cert. denied, 479 U.S. 882 (1986) (finding no liability when state officials released a dangerous mental patient they knew had threatened a particular person, leading to her murder). 14 DeShaney v. Winnebago County Dep’t of Soc. Services, 489 U.S. 189, 213 (1989) (Blackmun, J., dissenting). 15 Susan Bandes, supra note 6, at 2278. trained; what resources, if any, will be devoted to certain problems). When government deliberately chooses to intervene (or to allocate scarce resources) in one sphere, and conspicuously fails to perform in another, can that fairly be characterized as “inaction”? Another problem with the negative constitution is that citizens rely on the protective umbrella of the state. When the state establishes an agency to detect and prevent child abuse (or to prevent any other cause of injury or disease), it promises, at least implicitly, that it will respond in cases of obvious threats to health. If an agency holds itself out to the public as a defender of human health, and citizens justifiably rely on that protection, is government “responsible” when it knows a substantial risk exists, fails to inform citizens so they might initiate action, and passively avoid a state response to that risk? Finally, judicial refusal to examine government’s failure to act, irrespective of the circumstances, leaves the state free to abuse its power and cause harm to citizens. Government more often exerts its power, and its potential to harm, by withholding services in the face of undeniable threats to health.16 The state’s neglect of the poor and vulnerable, its calculated failure to respond to obvious risk, or its arbitrary or discriminatory enforcement of public health law is a certain, and direct, cause of harm. Seidman and Tushnet suggest that the Fourteenth Amendment’s historical purpose was to expand government’s power to contend with private acts of violence. This history is consistent with the view that “the state is inflicting . . . deprivation [of life, liberty, or property] when officials organize their activities so that people fall prey to private violence.”17 A constitutional rule, moreover, that punishes government misfeasance 16 Seth F. Kreimer, Allocational Sanctions: The Problem of Negative Rights in a Positive State, 132 U. PA. L. REV. 1293, 1295–96 (1984). 17 LOUIS M. SEIDMAN & MARK V. TUSHNET, REMNANTS OF BELIEF: CONTEMPORARY CONSTITUTIONAL ISSUES 52 (1996). (when the state intentionally or negligently causes harm) but not non-feasance (when the state simply does not act) provides an incentive to withhold services and interventions.18 In many contexts, the rule requiring state action as a prior condition for judicial review provides a limited and uninspired vision of the Constitution. II. Governmental Power to Assure the Conditions for Public Health The Supreme Court, as we have just seen, has a constricted vision of governmental duty to protect the public’s health. The Court, however, has recognized a substantial governmental power to assure the conditions for the population’s health. This Part examines the Court’s jurisprudence in relation to federal and state public health powers. A. Federal Public Health Powers Article I § 1 of the Constitution endows Congress with the “legislative Powers herein granted,” not with plenary legislative authority. It is well known that the federal government must draw its authority to act from specific, enumerated powers. Thus, before an act of Congress is deemed constitutional, two questions must be asked: Does the Constitution affirmatively authorize Congress to act, and does the exercise of that power improperly interfere with any constitutionally protected interest? The United States is a government of limited powers but, in reality, its powers are not as limited as some of the Framers imagined. The federal government possesses considerable authority to act and exerts extensive control in the realm of public health and safety.19 The 18 19 Id. at 54. Congress derives its sweeping powers, in part, from Article I § 8 of the Constitution: Congress may “make all Laws which shall be necessary and proper for carrying into Execution” all powers vested by the Constitution in the government of the United States. The “necessary Supreme Court, through an expansive interpretation of Congress’ enumerated powers, has enabled the federal government to maintain a vast presence in public health—in matters ranging from biomedical research and the provision of health care to the control of infectious diseases, occupational health and safety, and environmental protection (see Table). [Insert Table here] The Constitution delegates diverse authority to the United States.20 The power to tax, spend, and regulate interstate commerce afford the federal government potentially immense public health authority. 1. The Power to Tax Is the Power to Raise Revenue, Regulate Risk Behavior, and Induce and proper” clause, the subject of many great debates in American history, incorporates within the Constitution the doctrine of implied powers. Chief Justice Marshall’s famous construction of the necessary and proper clause in McCulloch v. Maryland suggests that Congress may use any reasonable means not prohibited by the Constitution to carry out its express powers: “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the constitution, are constitutional.” McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421 (1819). 20 The enumerated powers of Congress include: the power to tax, borrow money, regulate interstate commerce, establish rules for naturalization and bankruptcies, coin money, punish counterfeiting, establish Post Offices, promote the progress of science and art by securing rights in intellectual property, constitute the judiciary, punish piracy and felony on the High Seas, declare war, provide for and maintain (in various ways) the military of the United States, and exclusively legislate in the District of Columbia. Congress, moreover, may enact all laws which are “necessary and proper” for carrying out its enumerated powers. U.S. CONST. art. I, § 8. Apart from Article I, § 8, the provisions of the Constitution delegating power to Congress include: Article IV (prescribe the manner in which full faith and credit shall be given to the acts of every State); Article V (ratification of Constitutional Amendments); 16th Amendment (national income tax); and various Amendments that recognize individual rights that authorize Congress to enforce their provisions by “appropriate legislation.” Health-Promoting Behaviors No attribute of sovereignty is more pervading [than taxation], and at no point does the power of government affect more constantly and intimately the relations of life than through the exactions made under it. Thomas M. Cooley (1890)21 Article I § 8 states that “[t]he Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States.” On its face, the power to tax has a single, overriding purpose—to raise revenue to provide for the good of the community. Absent the ability to generate sufficient revenue, the legislature could not provide services such as transportation, education, medical services to the poor, sanitation, and environmental protection. Historically, constitutional constraints were imposed on Congress’ revenue-raising capacity. Drawing a distinction between direct taxes (imposed upon property) and indirect taxes (imposed on the performance of an act),22 the Supreme Court, at the turn of the century, declared unconstitutional a federal income tax.23 The Sixteenth Amendment, ratified in 1913, restored the federal income tax and made possible an almost limitless revenue-raising potential within the federal government. 21 THOMAS M. COOLEY, CONSTITUTIONAL LIMITATIONS 587 (6th ed. 1890). 22 U.S. CONST. art. I, § 9, “[n]o Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census.” This “apportionment” requirement made it burdensome for the federal government whenever the Supreme Court ruled that a tax, for constitutional purposes, was “direct.” 23 Pollock v. Farmers’ Loan & Trust Co., 157 U.S. 429 (1895) (holding that income tax, because the source of income is, in part, property, is unconstitutional unless apportioned). The power to tax is closely aligned with the power to spend.24 Economists regard congressional decisions to provide tax relief for certain activities as indirect expenditures because government is, in fact, subsidizing the activity from the national treasury. Economists project, for example, that favorable tax treatment afforded to employer-sponsored health care plans will cost the federal government $438 billion between the years 1999 and 2003.25 The taxing power, while affording government the financial resources to provide public health services, has another, equally important, purpose. The power to tax is also the power to regulate risk behavior and influence health-promoting activities.26 Virtually all taxes achieve ancillary regulatory effects by imposing an economic burden on the taxed activity or providing economic relief for certain kinds of private spending. Consequently, the tax code provides incentives and disincentives to perform, or to refrain from performing, certain acts. The more onerous the tax (in terms of the economic and administrative costs) or the more generous the tax relief, the more powerful the ancillary regulatory effects. The taxing power is a primary means for achieving public health objectives. As Fox and Schaffer observe, “tax law and health policy come together” to affect fundamentally the health of the community.27 Broadly speaking, the tax code influences health-related behavior through tax 24 Consider excise taxes that have a trust fund with a related public health purpose; for example, the tax on the sale or use of domestic mined coal goes to the Black Lung Disease Trust Fund for Miners. 30 U.S.C. § 901 (1994). 25 OFFICE OF MANAGEMENT AND BUDGET, THE BUDGET OF THE UNITED STATES GOVERNMENT: FISCAL YEAR 1999, at 218 (1998); see also HENRY J. AARON, SERIOUS AND UNSTABLE CONDITION: FINANCING AMERICA’S HEALTH CARE 67–68 (1991). 26 See generally R. ALTON LEE, A HISTORY OF REGULATORY TAXATION 1–11 (1973) (discussing relationship between police power and taxing power). 27 Daniel M. Fox & Daniel C. Schaffer, Tax Policy as Social Policy: Cafeteria Plans, 1978–1985, 12 J. HEALTH POL., POL’Y & L. 609, 610 (1987); see Daniel M. Fox & Daniel C. Schaffer, Tax Administration as Health Policy: Hospitals, the Internal Revenue Service, and the relief and tax burdens. Tax relief encourages private, health-promoting activity and tax burdens discourage risk behavior. Through various forms of tax relief (e.g., excluding benefits from taxable income, deducting spending from gross income, and providing credits against tax owed), government provides incentives for private activities that it views as advantageous to community health. Employer-sponsored health plans, for example, receive generous tax incentives. By excluding employer contributions for health benefits from federal and state taxable income,28 the Internal Revenue Code “deeply affects how health care is provided in the United States, to whom it is provided, and who provides it.”29 Similarly, federal and state income and property tax exemptions afforded to the nonprofit sector demonstrate a distinct government preference for nonprofit over investor-owned health care institutions. Government preferences for nonprofit entities have significant effects on hospital care in America.30 The tax code influences private health-related spending in many other ways: encouraging child care to enable parents to enter the work force;31 inducing investment in low income housing;32 promoting clinical testing of Courts, 16 J. HEALTH POL., POL’Y & L. 251 (1991). 28 Employer-Sponsored Health Care Plans, 26 U.S.C.A. § 162 (1989). 29 Fox & Schaffer, supra note 27, at 610. 30 M. Gregg Bloche, Health Policy Below the Waterline: Medical Care and the Charitable Exemption, 80 MINN. L. REV. 299 (1995). 31 Child and Dependent Care Tax Credit, I.R.C. § 21(a) (1996) (allowing taxpayers to subtract a percentage of money spent on child care from overall tax liability); 26 U.S.C.A. § 21 (1989). 32 Low Income Housing Credit, 26 U.S.C.A. § 42 (1989). pharmaceuticals for rare diseases;33 and stimulating charitable spending for research and care in areas such as heart disease, cancer, and mental retardation.34 Public health taxation also regulates private behavior by economically penalizing risktaking activities. Tax policy discourages a number of activities that government regards as unhealthy or dangerous.35 Consider excise or manufacturing taxes on tobacco,36 alcoholic beverages,37 or firearms.38 Tax policy also penalizes certain behavior regarded as “immoral” such as gambling.39 Finally, tax policy influences individual and business decisions that adversely affect health or the environment, such as taxes on gasoline40 or on ozone-depleting chemicals41 that contribute to environmental degradation. It is difficult to imagine a public health threat caused by human behavior or business activity that cannot be influenced by the taxing power. The taxing power provides an independent source of federal legislative authority. 33 Clinical Testing Expenses for Certain Drugs for Rare Diseases or Conditions, 26 U.S.C.A. § 45C (1989). 34 Charitable Contributions, 26 U.S.C.A. § 170 (1989). 35 See generally Jendi B. Reiter, Citizens or Sinners? The Economic and Political Inequity of “Sin Taxes” on Tobacco and Alcohol Products, 29 COLUM. J. L. & SOC. PROBS. 443 (1996). 36 Tobacco Tax, 26 U.S.C.A. § 5701 (1989). 37 Alcohol Tax (Beer), 26 U.S.C.A. § 5051 (1989); Alcohol Tax (Distilled Spirits) 26 U.S.C.A. § 5001 (1989); Alcohol Tax (Wines) 26 U.S.C.A. § 5041 (1989). 38 Firearm Making Tax, 26 U.S.C.A. § 5821 (1989). 39 Taxes on Wagering, 26 U.S.C.A. § 4401 (1989). 40 Federal Gas Tax, 26 U.S.C.A. § 4081 (1998). 41 Ozone-Depleting Chemical Tax, 26 U.S.C.A. § 4681 (1989). Congress may regulate through the tax system for purposes that may not be authorized under its enumerated powers. The Supreme Court, in its early jurisprudence, was concerned about federal taxes that were designed to punish or regulate rather than to raise revenue. Thus, the Court distinguished between revenue-raising taxes, which it upheld, and purely regulatory taxes, which it found constitutionally troubling.42 This distinction, however, has all but disappeared. For example, the Court has upheld federal taxes on firearms, capable of being concealed, and on persons who “deal in” or prescribe marijuana, stating that a “tax does not cease to be valid because it regulates, discourages, or even definitely deters the activities taxed.”43 The power to tax, then, is the power to govern. Taxes amass the resources necessary for public health services, and provide an effective regulatory mechanism for controlling individual and corporate behavior. Tax incentives and disincentives are powerful tools for promoting or discouraging anything legislators deem important for the health and well-being of the population. 2. The Power to Spend Is the Power to Allocate Resources and to Induce State Conformance with Federal Public Health Standards The powers to tax and spend both are found in the same constitutional phrase of Article I § 8: “Congress shall have Power To lay and collect Taxes . . . to pay the Debts and provide for 42 See, e.g., United States v. Constantine, 296 U.S. 287, 295 (1935) (federal tax that punishes liquor dealers who violate state liquor laws is unconstitutional); Bailey v. Drexel Furniture Co., 259 U.S. 20, 37 (1922) (holding that federal tax imposed on violators of federal child labor regulations has a “prohibitory and regulatory effect and purpose [that is] palpable”). 43 United States v. Sanchez, 340 U.S. 42, 44 (1950) (upholding federal tax on distribution or prescription of marijuana, and citing Sonzinsky v. United States, 300 U.S. 506, 513–14 (1937) (upholding federal tax on firearms capable of concealment)). the common Defence and general Welfare of the United States.” The spending power provides Congress with independent authority to allocate resources for the public good; Congress need not justify its spending by reference to a specific enumerated power.44 Closely connected to the power to tax, the spending power has two related purposes. First, it authorizes expenditures expressly for the public’s health, safety, and well-being. Secondly, it effectively induces state conformance with federal regulatory standards. The power to spend is expressly to promote “general welfare,” that is, all reasonable public health purposes. Theoretically, the spending power may be exercised only to pursue a common benefit, as distinguished from a local purpose. Yet, it is Congress that determines whether expenditures are for the common benefit, and the Supreme Court has historically concurred. “Nor is the concept of the general welfare static. Needs that were narrow or parochial a century ago may be interwoven in our day with the well-being of the Nation.”45 Laurence Tribe believes that such judicial deference is understandable “in an era lacking any coherent theory of the public good as more than an aggregate of private needs and wants.”46 Nonetheless, the Court is not well placed to adopt any particular theory of governmental appropriation, or any other inherently political function. The spending power does not simply grant Congress the authority to allocate resources; it is also an indirect regulatory device. Congress may prescribe the terms upon which it disburses federal money to the states. The conditional spending power is akin to a contract: in return for 44 United States v. Butler, 297 U.S. 1, 66 (1936) (holding that Congress’s power to tax is expressly conferred by the General Welfare Clause of the Constitution). 45 Helvering v. Davis, 301 U.S. 619, 641 (1937). 46 LAURENCE TRIBE, AMERICAN CONSTITUTIONAL LAW 323 (2d ed. 1988). federal funds, the states agree to comply with federally imposed conditions.47 The Supreme Court permits conditional appropriations, provided the conditions are clearly expressed in the statute48 and a reasonable relationship exists between the condition imposed and the program’s purposes.49 If Congress wants states to conform to federally imposed standards to receive federal funds, it must say so clearly enough to permit the states to make an informed choice. Moreover, states must be cognizant of the consequences in advance of their participation in a federal grant program.50 The strings attached to federal resources must also bear some reasonable relationship to the purposes of the grant, and conditional spending cannot be so coercive as to pass the point at which “pressure turns into compulsion.”51 Despite these theoretical limits, the Supreme Court grants Congress substantial leeway and appears to search for permissible relationships between the appropriation and the conditions. For example, the Court saw a direct relationship between the appropriation of highway funds and the states’ acceptance of a 21-year-old drinking age. Since a major purpose of highway funds is traffic safety, the drinking age limits were deemed constitutionally acceptable.52 Congress’ power to set the terms upon which state appropriations shall be distributed is an effective regulatory device. States and localities can seldom afford to decline public health 47 Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981). 48 Id. 49 South Dakota v. Dole, 483 U.S. 203, 211 (1987). 50 Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981). 51 Steward Machine Co. v. Davis, 301 U.S. 548, 590 (1937). 52 South Dakota v. Dole, 483 U.S. 203 (1987) grants.53 Congress and the federal agencies use conditional appropriations to induce states to conform to federal standards in numerous public health contexts. Federal funding programs for HIV/AIDS, for example, require involuntary post-conviction testing of sex offenders,54 adoption of CDC guidelines (or their “equivalent”) for preventing transmission of infection during invasive medical procedures,55 acceptance of CDC guidelines for counseling and testing of pregnant women,56 and compliance with specific community planning and program priorities.57 Conditional spending induces states to conform to federal regulatory requirements in other areas as well: eligibility and quality standards relating to Medicare and Medicaid;58 prohibition on family planning fund recipients from engaging in abortion counseling, referral, and activities advocating abortion as a method of family planning;59 and state and local planning for land use 53 See Albert J. Rosenthal, Conditional Federal Spending and the Constitution, 39 STAN. L. REV. 1103, 1104 (1987). 54 42 U.S.C. § 3756(f) (1994); see Lawrence O. Gostin et al., HIV Testing, Counseling, and Prophylaxis After Sexual Assault, 271 JAMA 1436 (1994). 55 Act of Oct. 28, 1991, Pub. L. No. 102-141, Title VI, § 633, 1991 U.S.C.C.A.N. (105 Stat.) 834, 876–77, reprinted in, note to 42 U.S.C.A. § 300ee-2 (1994); see Lawrence O. Gostin, The HIV-infected Health Care Professional: Public Policy, Discrimination and Patient Safety, 151 ARCHIVES OF INTERNAL MED. 663 (1991). 56 Pub. L. No. 104-146, § 7, 1996 U.S.C.C.A.N. (110 Stat.) 1346, 1369 (codified at 42 U.S.C. § 300 ff). 57 Ronald O. Valdiserri et al., Determining Allocations for HIV-Prevention Interventions: Assessing a Change in Federal Funding Policy, 12 AIDS & PUB. POL’Y J. 138 (1997). 58 42 U.S.C. §1396a (Medicaid requirements of establishment of State plans); 42 U.S.C. § 1395i-4 (Medicare requires state grants for planning and implementation of rural health care networks to be based on eligibility as defined in the statute.). 59 Rust v. Sullivan, 500 U.S. 173 (1991) (permitting federal regulations prohibiting use of Title X funds in programs where abortion is used as a means of family planning). and solid waste management.60 It is obvious from this discussion that the power to tax and spend is not value neutral, but rather laden with political overtones. Collection of revenues and allocation of resources go to the very heart of the political process. Legislators, as influenced by the public and interest groups, purport to promote the public health, safety, and security. Many of their economic decisions do promote the common good such as taxes on cigarettes and expenditures for antismoking campaigns. But their vision is also influenced by moral, cultural, and social values so that government’s economic power may be used to discourage abortions, fetal research, sex education, or needle exchange. The power to tax and spend, then, may be used to impede, as well as to promote, legitimate public health goals. 3. The Power to Control the Stream of Interstate Commerce Is the Power to Regulate Throughout the Public Health Spectrum The commerce clause, more than any other enumerated power, affords Congress potent regulatory authority.61 Article I § 8 states that “[t]he Congress shall have the power . . . to regulate Commerce with foreign Nations, and among the several states, and with the Indian 60 Coastal Zone Management Act of 1972, 16 U.S.C. §§ 1451–1465 (1994); Federal Water Pollution Control Act, 33 U.S.C. §§1251–1387 (1994); Resource Conservation and Recovery Act, 42 U.S.C. § 6901 (1994). 61 Sometimes the federal government acts under a model known as “cooperative federalism. Under this model, federal agencies (e.g., EPA) establish minimum national standards, and states retain the choice to administer the federal standards themselves or have federal authorities implement national standards. This model is found in federal public health statutes concerning water quality (Arkansas v. Oklahoma, 503 U.S. 91, 101 (1992)), occupational health and safety (Gade v. National Solid Wastes Management Ass’n, 505 U.S. 88, 97 (1992)), and conservation (United States Department of Energy v. Ohio, 503 U.S. 607, 611–12 (1992); Kenaitze Indian Tribe v. Alaska, 860 F.2d 312, 314 (9th Cir. 1988), cert. denied, 491 U.S. 905 (1989)). Tribes.” The Supreme Court’s expansive construction of the commerce clause, since Franklin Delano Roosevelt’s New Deal, facilitated a marked increase in federal regulatory authority in public health matters. On its face, the commerce clause is limited to controlling the flow of goods and services across state lines. Yet, as interstate commerce has become ubiquitous, activities once considered purely local have come to have national effects, and have, accordingly, come within Congress’ commerce power.62 The Court’s post-1937 construction of “commerce among the states” has been broad—the commerce power has been described by the judiciary as “plenary” or allembracing,63 and has been exerted to affect virtually every aspect of social life.64 The broad interpretation of the commerce clause has enabled national authorities to reach deeply into traditional realms of state public health power, and has significantly diminished the force of the Tenth Amendment.65 The courts have upheld exercises of the commerce clause in 62 New York v. United States, 505 U.S. 144, 159 (1992). 63 NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37 (1937). 64 United States v. Darby, 312 U.S. 100, 115 (1941). 65 The commerce clause, in addition to affording Congress considerable police power authority, implicitly limits the states’ public health power. The dormant commerce clause limits state authority to regulate in ways that place an undue burden on interstate commerce. Thus, even if Congress has not entered a field of public health, states may not regulate if doing so obstructs commerce among the states. The Supreme Court has a history of invalidating state public health legislation on dormant commerce clause grounds. See, e.g.,West Lynn Creamery v. Healy, 512 U.S. 186 (1994) (milk sales); Bacchus Imports, Ltd. v. Dias, 468 U.S. 263 (1984) (liquor taxes); Sporhase v. Nebraska ex rel. Douglas, 458 U.S. 941, 958–60 (1981) (ground water use); Chemical Waste Management v. Hunt, 504 U.S. 334 (1992) (waste disposal). the fields of environmental protection,66 food and drug safety,67 and other public health matters.68 In Hodel v. Virginia Surface Mining & Reclamation Association, Inc., for example, the Supreme Court sustained federal regulation of surface mining, even though regulation of land use is a traditional state function. Congress’ intent was to prevent “hazards dangerous to life,” such as soil erosion and water pollution, and to “conserve soil, water, and other natural resources.”69 The Rehnquist Court has begun to rethink the commerce clause as part of its agenda of gradually returning power from the federal government to the states. In the process, the Court has held that Congress lacks the power to engage in social and public health regulation in areas that lack a substantial impact on interstate commerce (see “new federalism” below). B. State Power to Regulate for the Health, Safety, and Morals of the Community OF OFFENCES AGAINST THE PUBLIC HEALTH, AND THE PUBLIC POLICE OR ŒCONOMY. [A] species of offences, more especially affecting the commonwealth, are such as are against the public health of the nation; a concern of the highest importance. . . . By public police and œconomy I mean the due 66 New York v. United States, 505 U.S. 144, 159–60 (1992) (upholding monetary and access incentive, but invalidating commandeering, provisions of the Low-Level Radioactive Waste Policy Act). 67 United States v. Sullivan, 332 U.S. 689 (1948) (upholding Congress’ commerce clause power to regulate the labeling of medicine that has completed an interstate shipment and is being held for future sales in purely local or intrastate commerce); see McDermott v. Wisconsin, 228 U.S. 115 (1913) (upholding Pure Food and Drugs Act of 1906 against a challenge under the commerce clause). 68 Hillsborough County Florida v. Automated Med. Labs., 471 U.S. 707 (1985) (upholding federal regulation of collection of blood plasma from paid donors). 69 Hodel v. Virginia Surface Mining & Reclamation Ass’n, 452 U.S. 264, 277 (1981). regulation and domestic order of the kingdom: whereby individuals of the state, like members of a well-governed family, are bound to conform their general behaviour to the rules of propriety, good neighbourhood, and good manners; and to be decent, industrious, and inoffensive in their respective stations. William Blackstone (1769)70 Despite a contemporary federal presence, the states since the founding of the republic have had the predominant public responsibility for population-based health services. Even today, the states account for the majority of traditional public health spending. Early public health law employed a legal maxim that symbolized the intrinsic purposes of a sovereign government: salus populi est suprema lex—the welfare of the people is the supreme law.71 Salus populi demonstrates the close connection between state power and historic understandings of the public’s well-being. The “police power” is the most famous expression of the natural authority of sovereign governments to regulate private interests for the public good. I define police power as: The inherent authority of the state (and, through delegation, local government) to enact laws and promulgate regulations to protect, preserve and promote the 70 William Blackstone, Commentaries on the Laws of England, vol. IV Of Public Wrongs (1769, reprinted, University of Chicago Press 1979). 71 An early treatise on public health law posted the maxim on its cover page. LEROY PARKER & ROBERT H. WORTHINGTON, THE LAW OF PUBLIC HEALTH AND SAFETY, AND THE POWERS AND DUTIES OF BOARDS OF HEALTH (1892). Salus populi was often used by the courts to uphold police regulations during the nineteenth century. See William J. Novak, Public Economy and the Well-ordered Market: Law and Economic Regulation in 19th-Century America, L. & SOC. INQUIRY 1, 7 (1993). health, safety, morals, and general welfare of the people. To achieve these communal benefits, the state retains the power to restrict, within federal and state constitutional limits, private interests—personal interests in autonomy, privacy, association, and liberty as well as economic interests in freedom to contract and uses of property. The linguistic and historical origins of the concept of “police” demonstrate a close association between government and civilization: politia (the state), polis (city), and politeia (citizenship).72 “Police” traditionally connoted social organization, civil authority, or formation of a political community—the control and regulation of affairs affecting the general order and welfare of society.73 Such was the context in which Hamilton used the term in the Federalist Papers, to suggest civil peace and public law.74 “Police” was meant to describe those powers that permitted sovereign government to control its citizens, particularly for the purpose of promoting the general comfort, health, morals, safety, or prosperity of the public.75 The word had a secondary usage as well: the cleansing or keeping clean. This use resonates with early twentieth century public health connotations of hygiene and sanitation. 72 WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY, UNABRIDGED 1753 (1986). 73 OXFORD ENGLISH DICTIONARY 22–25 (2d ed. 1989). For related meanings, see “polity” and “policy.” 74 THE FEDERALIST No. 17 and No. 34, quoted in Wendy E. Parmet, From SlaughterHouse to Lochner: The Rise and Fall of the Constitutionalization of Public Health, 40 AM. J. LEGAL HIST. 476, 478 (1996). 75 Pasquale Pasquino, Theatrum Politicum: The Genealogy of Capital—Police and the State of Prosperity, in THE FOUCAULT EFFECT: STUDIES IN GOVERNMENTALITY 105, 108–111 (Graham Burchell et al. eds., 1991) (“police” as “the science of happiness” and the “science of government”). The police power represents the state’s authority to further the goal of all government, to promote the general welfare of society.76 States possess the police power as an innate attribute of sovereignty. As sovereign governments before the formation of the United States, the states still retain sovereignty except as surrendered under the Constitution.77 Part of the constitutional compact of our Union was that states would remain free to govern within the traditional sphere of health, safety, and morals. All states, to a greater or lesser degree, delegate police powers to local government: counties, parishes, municipalities, or villages.78 The definition of “police power” encompasses three principal characteristics: the governmental purpose is to promote the public good; the state authority to act permits the restriction of private interests; and the scope of state powers is pervasive. States exercise police powers to ensure that communities live in safety and security, in conditions conducive to good health, with moral standards, and, generally speaking, without unreasonable interference with human well-being. Police powers legitimize state action to protect and promote broadly defined social goods. Government, in order to achieve common goods, is empowered to enact legislation, regulate, and adjudicate in ways that necessarily limit, or even eliminate, private interests. Thus, government has inherent power to interfere with personal interests in autonomy, privacy, association, and liberty as well as economic interests in ownership, uses of private property, and freedom to contract. State power to restrict private rights is embodied in the common law 76 RUTH LOCK ROETTINGER, THE SUPREME COURT AND STATE POLICE POWER: A STUDY IN FEDERALISM 10–22 (1957) (cataloguing Supreme Court statements on police power). 77 Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824). 78 FRANK P. GRAD, THE PUBLIC HEALTH LAW MANUAL 10–15 (2d ed. 1990). maxim sic utere tuo ut alienum non laedas—use your own property in such a manner as not to injure that of another.” The maxim supports the police power, giving government authority to determine safe uses of private property to diminish risks of injury and ill-health to others.79 More generally, the police power affords government the authority to keep society free from noxious exercises of private rights. The state retains discretion to determine what is considered injurious or unhealthful and the manner in which to regulate, consistent with constitutional protections of personal interests. Police powers are so pervasive that they defy orderly or systematic description. The police power evokes images of an organized civil force for maintaining order, preventing and detecting crime, and enforcing criminal laws. But the origins of “police” are deeper and far more textured than notions of basic law enforcement and crime prevention. The police power in early American life, according to Novak, was part of a well-regulated society, a “science and mode of governance where the polity assumed control over, and became implicated in, the basic conduct of social life.”80 After reviewing the expansive early regulation under police jurisdiction (e.g., religion, manners, health, public tranquility and safety, transportation, labor, commerce, and trade), Novak concludes: “No aspect of human intercourse remained outside the purview of police science.”81 Countless judicial opinions and treatises articulate the police powers as a deep well of 79 Commonwealth v. Alger, 61 Mass. (7 Cush.) 53, 96 (1851). 80 WILLIAM J. NOVAK, THE PEOPLE’S WELFARE: LAW AND REGULATION IN NINETEENTHCENTURY AMERICA 14 (1996). 81 Id. public authority granted to the body politic.82 In Gibbons v. Ogden, Chief Justice Marshall conceived of police powers as an “immense mass of legislation, which embraces every thing within the territory of a state, not surrendered to the general government. . . . Inspection laws, quarantine laws, health laws of every description . . . are components of this mass.”83 Police powers in the context of public health include all law and regulation directly or indirectly intended to improve morbidity and mortality in the population. The police powers have enabled states and their subsidiary municipal corporations to promote and preserve the public health in areas ranging from injury and disease prevention 84 to sanitation, waste disposal, and water and air protections.85 Police powers exercised by the states include vaccination,86 isolation and quarantine,87 inspection of commercial and residential premises,88 abatement of unsanitary conditions or other health nuisances,89 regulation of air and surface water 82 See, e.g., ERNST FREUND, THE POLICE POWER: PUBLIC POLICY AND CONSTITUTIONAL RIGHTS (1904); W.P. PRENTICE, POLICE POWERS ARISING UNDER THE LAW OF OVERRULING NECESSITY 38–41(2d ed. 1939). 83 Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824). 84 TOM CHRISTOFFEL & STEPHEN P. TERET, PROTECTING THE PUBLIC: LEGAL ISSUES IN INJURY PREVENTION 25–28 (1993). 85 39 AM. JUR.2D Health § 22 et seq. (1968) (state citations omitted). 86 Zucht v. King, 260 U.S. 174 (1922) (holding that a municipality may constitutionally vest in its officials broad discretion in matters affecting the enforcement of health law, specifically vaccinations). 87 Leisy v. Hardin, 135 U.S. 100 (1890) (upholding state confiscation of alcohol). 88 Givner v. State, 124 A.2d 764, 774 (Md. 1956); see also See v. Seattle, 387 U.S. 541, 550–52 (listing historical examples of state inspection) (Clark, J., dissenting) (1967). 89 Jones v. Indiana Livestock Sanitary Board, 163 N.E.2d 605, 606 (Ind. 1960) (finding that in the exercise of state police powers, states may take the legislative steps necessary to eliminate nuisances); Francis v. Louisiana State Livestock Sanitary Board, 184 So. 2d 247, 253 (La. App. 1966) (upholding statute giving State Livestock Sanitary Board plenary power to deal contaminants as well as restriction on the public's access to polluted areas,90 standards for pure food and drinking water,91 extermination of vermin,92 fluoridization of municipal water supplies,93 and licensure of physicians and other health care professionals.94 The courts have often used the police power as a rough sorting device to separate authority rightfully retained by the states, and those appropriately exercised by the federal government. If the authority exercised was traditionally part of the corpus of police powers, states, at least presumptively, were thought to have a valid claim of jurisdiction. Although the extent of permissible state public health regulation has not been easy to measure, a state’s power is “never greater than in matters traditionally of local concern” to the health and safety of its population.95 Courts in many contexts, such as the quality standards for meat,96 fruits, and with contagious and infectious diseases of animals). 90 State ex rel. Corp. Comm’n v. Texas County Irrigation & Water Res. Ass’n, 818 P.2d 449 (Okla. 1991) (upholding state’s police power in performing the duty to protect fresh groundwater from pollution). 91 Strandwitz v. Board of Dietetics, 614 N.E.2d 817, 824 (Ohio Ct. App. 1992) (finding that in the interest of protecting the health and safety of its citizens, a state may, pursuant to its police powers, regulate businesses regarding food and nutrition). 92 Kaul v. Chehalis, 277 P.2d 352, 354 (Wash. 1955) (en banc) (upholding state provisions to control dental caries). 93 Safe Water Ass’n v. City of Fond Du Lac, 516 N.W.2d 13, 15 (Wis. Ct. App.1994 ) (upholding city council’s adoption of a water fluoridation program as a valid exercise of state police power). See generally Douglas A. Balog, Note, Fluoridation of Public Water Systems: Valid Exercise of State Police Power or Constitutional Violation?, 14 PACE ENVTL. L. REV. 645 (1997). 94 State v. Otterholt, 15 N.W.2d 529, 531 (Iowa 1944) (upholding state licensing requirements for chiropractors). 95 96 Kassel v. Consolidated Freightways Corp., 450 U.S. 662, 670 (1981). The Slaughter-House Cases, 83 U.S. 36, 62 (1873) (holding that regulation of the slaughter of meat “is, in its essential nature, one which has been . . . in the constitutional history vegetables,97 have emphasized the legitimacy of state authority. Even in assessing express federal preemption, courts acknowledge that police powers are “primarily, and historically, . . . matters of local concern.”98 Thus, the judiciary adopts a presumption that “the historic police powers of the States [are] not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.”99 C. New Federalism: Public Health in the American Federalist System This Nation has long struggled with the problem of attaining the proper balance of powers between the federal government and the states. The problem is particularly acute in matters of public health because both levels of government want to be seen as responding to the electorate’s concerns about health and safety. States and localities are closer to the people and understand better threats to their health. Because they are closer to the community, they can adapt prevention strategies to meet the needs of localities. States also are better placed to “experiment” with solutions to complex health problems. By permitting states to act as laboratories for innovative health policies, the federalist system can, in theory, sort out effective from less effective interventions. The federal government, on the other hand, has greater resources and scientific expertise with which to tackle complicated health policy problems. Many public health problems, moreover, transcend state borders such as pollution, infectious of this country, always conceded to belong to the States”). 97 Pacific States Box & Basket Co. v. White, 296 U.S. 176, 181 (1935) (holding that food regulation “is a part of the inspection laws; [and] was among the earliest exertions of the police power in America”). 98 99 Hillsborough County, Fla. v. Automated Med. Labs., Inc., 471 U.S. 707, 719 (1985). Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947), quoted with approval in Medtronic, Inc. v. Lohr, 518 U.S. 470, 471. disease, and traffic hazards. Other public health problems are so worrying or pervasive that they demand a national response (e.g., mass firearm fatalities in schools). It would be comforting to think that the struggles between federal and state public health authorities have been resolved by force of logic (by systematically determining which level of government is likely to be more effective in reducing health threats). The reality, however, is that this struggle has been fought more on political, than policy, grounds. The Supreme Court, moreover, has dramatically shifted its stance as the ideological composition of the Court has changed. In the early twentieth century (the so-called Lochner era), the Court carved out a zone of state power that could not be infringed by national authorities. During this era, a politically conservative Court struck down a great deal of social and economic regulation.100 Franklin Delano Roosevelt’s New Deal ushered in a period in which the Court granted Congress expansive powers. Indeed, from 1937 to 1995, the Supreme Court did not find a single piece of social or economic legislation unconstitutional on the basis that Congress had exceeded its commerce clause authority.101 In the most recent manifestation of the federalism debate, the Rehnquist Court has explored the contours of a “new federalism” where states retain a sphere of autonomy in matters of public health.102 A re-energized conservative majority on the Supreme Court, led by Justices Rehnquist and Scalia, has been actively re-centering the balance between national and state 100 See, e.g., Morehead v. New York ex rel. Tipaldo, 298 U.S. 587 (1936) (invalidating state minimum wage requirements for women as violating due process). 101 ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES 174 (1997). 102 United States v. Lopez, 514 U.S. 549. power.103 The Rehnquist Court has implemented its interpretation of a states-rights agenda in three ways: limiting federal commerce powers, expanding state reserved powers, and undertaking a sustained defense of state sovereign immunity. 1. The Commerce Power Revisited The Supreme Court’s 1995 decision in United States v. Lopez,104 signaled a change in the Court’s view about the balance of federal and state powers in the constitutional design.105 In Lopez, the Court held that Congress exceeded its commerce clause authority by making gun possession within a school zone a federal offense. Concluding that possessing a gun within a school zone did not “substantially affect” interstate commerce, the Court declared the statute unconstitutional. Here is a case where the Nation’s highest court was prepared to invalidate a politically popular measure thought to be important to the public’s safety. The Court did not invalidate this legislation on grounds that regulating guns in school zones was an unimportant aim of government, but only that it was outside the reach of the federal government. States would still be free to legislate in traditional realms of public health, but Lopez left little doubt that the Rehnquist Court would henceforth examine the exercise of federal police power authority. Lopez probably does not indicate a wholesale retreat from the liberal interpretation of the commerce clause. Certainly, Congress will continue to have wide power to regulate businesses 103 James G. Hodge, Jr., The Role of New Federalism and Public Health Law, 12 J.L. & HEALTH 309 (1997–98). 104 105 United States v. Lopez, 514 U.S. 549. The Rehnquist Court’s federalism jurisprudence includes Printz v. United States, 521 U.S. 898 (1997); Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996); New York v. United States, 505 U.S. 144 (1992). and individuals when they engage in explicitly economic or commercial activity. For example, in 2000, the Court upheld a federal law that restricts the states’ ability to disclose personal information in drivers licenses. Because drivers’ information is an article of commerce, the Court found that its sale or release into the interstate stream of business is sufficient to support congressional regulation.106 The important question Lopez leaves open is the constitutionality of social and public health regulation of intrastate activity. A wide range of pubic health regulation remains vulnerable to commerce clause attacks. For example, in 2000 the Court invalidated a civil rights remedy permitting survivors to bring federal lawsuits against perpetrators of sexually motivated crimes of violence. Congress proclaimed that violence impairs women’s abilities to work, harms businesses, and increases national health care costs. However, the Court found that gendermotivated crimes of violence are primarily state and local concerns.107 Additionally, commerce clause challenges threaten important environmental regulations.108 For example, the Court is currently considering a challenge to federal jurisdiction under the Clean Water Act over isolated wetlands.109 2. Reserved Powers Re-Visited In New York v. United States (1992), the Supreme Court, for only the second time in 106 Reno v. Condon, 120 S. Ct. 666, __ U.S. __ (2000). 107 United States v. Morrison, 120 S. Ct. 1578 (2000). See Martha Minow, Violence Against Women: A Challenge to the Supreme Court, 341 N. ENGL. J. MED. 1927 (1999). 108 United States v. Wilson, 133 F.3d 251, 257 (4th Cir. 1997) (regulation in Clean Water Act exceeded congressional commerce clause authority). 109 Solid Waste Agency v. U.S. Army Corps of Engineers, * (2001). more than half a century,110 struck down a federal statute as violating the Tenth Amendment.111 Congress had enacted monetary and other incentives to induce states to provide for disposal of radioactive waste generated within their borders. To ensure effective action, if a state was unable to dispose of its own waste, it was required under the statute to “take title” and possession of the waste. The Court invalidated the “take title” provision because the Constitution does not confer upon Congress the ability to “commandeer the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program.” According to the Court, although Congress may exercise its legislative authority directly over private persons or businesses, it lacks the power to compel states to regulate according to the federal standards.112 Congress, of course, may offer incentives to the states to influence their policy choices, through, for instance, conditional spending or cooperative federalism. In both of these two methods, however, the electorate retains the ultimate authority to decide whether the state will comply. By contrast, where national authorities direct the state to regulate, state officials “bear the brunt of public disapproval, while the federal officials who devised the regulatory program may remain insulated from the electoral ramifications of their decision.”113 In 1997, the Supreme Court used its reasoning in New York v. United States to overturn provisions in the Brady Handgun Violence Prevention Act which directed state and local law 110 The only other case in that half century to invalidate a federal statute on 10th Amendment grounds was later overruled. National League of Cities v. Usery, 426 U.S. 833 (1976), overruled in Garcia v. San Antonio Metropolitan Transit Auth., 469 U.S. 528 (1985). 111 New York v. United States, 505 U.S. 144 (1992). 112 While Congress may not control the manner in which states regulate private parties, it may regulate the activities of the state itself. For example, the Court upheld a Congressional requirement that states may not, under certain circumstances, release personal information contained in drivers licenses. Reno v. Condon, 120 S. Ct. 666, __ U.S. __ (2000). 113 Id. at 169. enforcement officers to conduct background checks on prospective handgun purchasers.114 The New York Court held that state legislatures are not subject to federal direction. In the Brady handgun case, the Court held that federal authorities may not supplant the state executive branch. In this instance, Congress did not require the state to make policy, but only to assist in implementing the federal law. The Court rejected the distinction between “making” law or policy on the one hand and merely enforcing or implementing it on the other hand. As a result of the New York and Brady handgun cases, the Tenth Amendment has become a vehicle for challenging federal statutes that compel state legislative or administrative action. In an era of “new federalism,” a body of public health law may be vulnerable to challenges on Tenth Amendment grounds—for example, environmental regulations that direct states to adopt or enforce a federal regulatory scheme. 3. State Sovereign Immunity The Eleventh Amendment grants states immunity from certain law suits in federal court without its consent.115 Known as sovereign immunity, this doctrine is important to states’ autonomy because it limits Congress’ power to authorize private law suits against states.116 In Seminole Tribe of Florida v. Florida,117 the Supreme Court held that Congress lacks the power 114 Printz v. United States, 521 U.S. 898 (1997). 115 11th Amendment: “The judicial power of the United States shall not be construed to extend to any [suit] commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign States.” 116 In Fitzpatrick v. Bitzer, 427 U.S. 445 (1976), the Supreme Court held that Congress could abrogate the state’s sovereign immunity and allow states to be sued directly pursuant to its enforcement power under the 14th Amendment to remedy discrimination. 117 517 U.S. 44 (1996) (Congress could not authorize Indian tribe to sue the state in dispute over gaming activities). under the commerce clause to abrogate the states’ sovereign immunity in federal court. The Rehnquist Court perceives the states’ immunity from suit to be a fundamental precept of sovereignty: “Federalism requires that Congress accord States the respect and dignity due them as residuary sovereigns and joint participants in the Nation’s governance.”118 The Court finished its 1998/99 term with three decisions that demonstrate its profound commitment to state sovereignty in the national constitutional system. The most far-reaching of the three cases declared for the first time that states cannot be sued, without their consent, by private parties in the state’s own courts for violations of federal law.119 The other two cases nullified congressional abrogations of state Eleventh Amendment immunity from suits in federal courts for patent infringement120 and for product misrepresentation.121 In 2000, the Court similarly found that the federal government could not authorize suits against the states under the Age Discrimination in Employment Act (ADEA).122 Currently, the Supreme Court is examining whether Title II of the Americans with Disabilities Act unconstitutionally abrogates states’ sovereign immunity by allowing them to be sued for violations of the ADA.123 With these decisions on national commerce powers, state reserved powers, and state sovereign immunity, the Rehnquist Court has been ardently defending traditional states’ rights 118 Alden v. Maine, 119 S. Ct. 2240, 2245 (1999). 119 See id. 120 Florida Prepaid Postsecondary Educ. Expense Bd. v. College Savings Bank, 119 S. Ct. 2199 (1999). (1999). 121 College Savings Bank v. Florida Prepaid Postsecondary Education Expense Bd., 119 S. Ct. 2219 (1999). 122 Kimel v. Florida Bd. of Regents, 120 S. Ct. 631, __ U.S. __ (2000). 123 * against federal political domination.124 But beyond the jurisprudential debate about the most appropriate level of government in a federal system lies an important question about the population’s health and safety. If the states do not act effectively or uniformly to reduce health threats such as firearms, cigarettes, or pollution, will the judiciary permit national authorities to exercise a police function? The current conservative political thrust evident in the judiciary may impede the federal government’s power to act for the health of the population.125 At the same time, an activist court is invalidating social legislation enacted through the democratic process, not to safeguard individual liberty, but to pursue an ideal of governance that is much disputed within the Nation. Part III: Constitutional Limits: Personal Rights and Freedoms [T]he very existence of government presupposes the right of the sovereign power to prescribe regulations demanded by the general welfare for the common protection of all. This principle inheres in the very nature of the social compact. . . . This power of government, the power, as expressed by Taney, C.J., ‘inherent in every sovereignty, the power to govern men and things,’ is not, however, uncontrollable or despotic authority, subject to no limitation, exercisable with or without reason in the discretion or at the whim or caprice of the legislative body. . . . [The constitutional guaranty] was designed for the protection of personal and private rights against encroachments by the legislative 124 125 Gregory v. Ashcroft, 501 U.S. 452 (1991). Neil A. Lewis, A Court Becomes a Model of Conservative Pursuits, N.Y. TIMES, May 24, 1999, at A-1 (4th Circuit Court of Appeals has “quietly but steadily become the boldest conservative court in the nation [issuing] remarkable rulings and a striking tone....”). body . . . as held and understood when the Constitution was adopted. John A. Andrews (1889)126 Personal coercion and economic regulation remain staples of public health practice in America.127 Throughout most of the major infectious disease epidemics health officials have resorted to compulsory programs of testing, vaccination, physical examination, treatment, isolation, and quarantine. Government agencies license health care providers, inspect food establishments, regulate food and drugs, set standards for occupational health and safety, control pollutants, and abate nuisances. Even the most cursory examination of public health practice reveals the extensive forms of personal coercion and economic regulation that pervade society. I am not suggesting that coercion and regulation are the preferred strategies for ameliorating health threats. Nevertheless, any careful discussion of public health law must confront the inevitability of governmental exercise of power, as well as the potential trade-offs between personal freedom and the common good. The question, therefore, arises, What limits exist on government powers to restrict personal and economic interests in the search for a healthy society? That is, under what 126 127 People v. Budd, 22 N.E. 670, 676 (N.Y. 1889). Early public health law texts are dominated by discussions of compulsory powers. See, e.g., LEROY PARKER & ROBERT H. WORTHINGTON, PUBLIC HEALTH AND SAFETY: POWERS AND DUTIES OF BOARDS OF HEALTH xxxviii (1892) (“It needs no argument to prove that the highest welfare of the State is subserved by protecting the life and health of its citizens by laws which will compel the ignorant, the selfish, the careless and the vicious, to so regulate their lives and use their property, as not to be a source of danger to others. If this be so, then the State has the right to enact such laws as shall best accomplish this purpose, even if their effect is to interfere with individual freedom and the untrammeled enjoyment of property.”). circumstances may the government interfere with a person’s autonomy, privacy, liberty, or property to achieve health benefits for the population as a whole? A. Early Constitutional Law and the Social Contract While the Constitution does not explicitly mention public health, it does recognize the right of states to execute inspection laws which were incident to quarantines.128 Chief Justice Marshall, as early as 1824, suggested that states have inherent and pervasive authority to safeguard the public’s health.129 For more than a century after the Marshall Court, the judiciary remained highly deferential to the exercise of public health powers.130 The major impetus for judicial activity in the public health field was the sporadic occurrence of epidemics of leprosy, smallpox, scarlet fever, cholera, venereal disease, and tuberculosis. In this context, private rights were subordinated to the public interest, and individuals were seen as bound to conform their conduct for society’s good. As one court put it, police powers do not frustrate personal rights because there is no liberty to harm others.131 In early American jurisprudence the judiciary periodically suggested that public health regulation was immune from constitutional review,132 expressing the notion that “where the 128 U.S. Const. Art. I, § 10, cl. 2. 129 Gibbons v. Ogden, 22 U.S. 1 (1824). 130 See Deborah J. Merritt, Communicable Disease and Constitutional Law: Controlling AIDS, 61 N.Y.U. L.REV. 739 (1986); Scott Burris, Rationality Review and the Politics of Public Health, 34 VILLANOVA L. REV. 933 (1989). 131 132 Kirk v. Wyman, 65 S.E. 387 (S.C. 1909). LEROY PARKER & ROBERT H. WORTHINGTON, PUBLIC HEALTH AND SAFETY: POWERS AND DUTIES OF BOARDS OF HEALTH 5 (1892) (“the legislature has a discretion which will not be reviewed by the courts; for it is not a part of the judicial functions to criticize the propriety of legislative action in matters which are within the authority of the legislative body.”). police power is set in motion in its proper sphere, the courts have no jurisdiction to stay the arm of the legislative branch.”133 The core issue, of course, was to understand what was meant by the “proper legislative sphere,” for it was never supposed in American constitutional history that government could act in an arbitrary manner free from judicial control.134 The 1905 case of Jacobson v. Massachusetts made clear that the state has an extensive power to coerce for the public well-being, but that its powers are limited. Henning Jacobson was fined for his refusal comply with a Cambridge ordinance requiring smallpox vaccination. Jacobson’s legal brief asserted that “a compulsory vaccination law is unreasonable, arbitrary and oppressive, and, therefore, hostile to the inherent right of every freeman to care for his own body and health in such way as to him seems best.”135 His was a classic claim in favor of a laissezfaire society and the natural rights of persons to bodily integrity and decisional privacy. The Supreme Court preferred a more community-oriented philosophy where citizens have duties to one another and to the society as a whole. Justice Harlan conveyed this sense of community:136 133 State ex rel. Conway, Atty. Gen. v. Southern Pac. Co., 145 P.2d 530 (Ariz. 1943) (quoting State ex rel. McBride v. Superior Court, 174 P. 973, 976 (Wash. 1918). 134 Pre-Jacobson understandings of constitutional restraints recognized that “a statute, to be upheld as a valid exercise of the police power, must have some relation to those ends; the rights of citizens may not be invaded under the guise of police regulation. . . .” LEROY PARKER & ROBERT H. WORTHINGTON, supra note 127, at 6–7. See Mugler v. Kansas, 123 U.S. 623, 661 (1887) (upholding prohibition on sale of alcoholic beverages, but emphasizing the duty of the courts to adjudge whether a statute has a “real or substantial relation” to public health); Brimmer v. Rebman, 138 U.S. 78 (1891) (invalidating state prohibition on sale of meat because of overbroad prevention of sale of wholesome, fresh meat). 135 197 U.S. at 26. 136 197 U.S. at 26–27 (citing Commonwealth v. Alger, 7 Cush. 53, 84 (Mass. 1851)). [T]he liberty secured by the Constitution of the United States . . . does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis organized society could not exist with safety to its members. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy. Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others.” The Court’s opinion is filled with examples ranging from sanitary laws and animal control to quarantine, demonstrating the breadth of valid police powers. The legacy of Jacobson surely is its defense of social welfare philosophy and unstinting support of police power regulation.137 Beyond its passive acceptance of state legislative discretion in matters of public health, however, was the Court’s first systematic statement of the constitutional limitations imposed on government. The Jacobson court established a floor of constitutional protection. Public health powers are constitutionally permissible only if they are exercised in conformity with four standards that I shall call public health necessity, reasonable means, proportionality, and harm avoidance. These standards, while permissive of public health intervention, nevertheless require a deliberative governmental process to safeguard autonomy. Public Health Necessity. Public health powers are exercised under the theory that they 137 Ironically, the Court during that era is best known for its libertarian position on questions of economic rights, see the discussion of economic due process and the Lochner case later in this article. are necessary to prevent an avoidable harm. Justice Harlan, in Jacobson, insisted that police powers must be based on the “necessity of the case” and could not be exercised in “an arbitrary, unreasonable manner” or go “beyond what was reasonably required for the safety of the public.”138 Early meanings of the term “necessity” are consistent with the exercise of police powers: to necessitate was to “force” or “compel” a person to do that which he would prefer not to do, and the “necessaries” were those things without which life could not be maintained.139 Government, in order to justify the use of compulsion, therefore, must act only in the face of a demonstrable health threat.140 The standard of public health necessity requires, at a minimum, that the subject of the compulsory intervention must actually pose a threat to the community. In the context of infectious diseases, for example, public health authorities could not impose personal control measures (e.g., mandatory physical examination, treatment, or isolation) unless the person was actually contagious or, at least, there was reasonable suspicion of contagion. Reasonable Means. Under the public health necessity standard, government may act only in response to a demonstrable threat to the community. The methods used, moreover, must be designed to prevent or ameliorate that threat. The Jacobson court adopted a means/ends test that required a reasonable relationship between the public health intervention and the 138 197 U.S. at 28. 139 THE CONCISE OXFORD DICTIONARY OF CURRENT ENGLISH 811 (10th ed. 1999). 140 Even though, under Jacobson, the government is permitted to act only in the face of a demonstrable threat to health, the Court did not appear to require the state to produce credible scientific, epidemiologic, or medical evidence of that threat. Justice Harlan said that “what the people believe is for the common welfare must be accepted as tending to promote the common welfare, whether it does in fact or not.” 197 U.S. at 35 (quoting Viemeister, 241, 72 N.E. 97,99 (N.Y. 1904). achievement of a legitimate public health objective. Even though the objective of the legislature may be valid and beneficent, the methods adopted must have a “real or substantial relation” to protection of the public health, and cannot be “a plain, palpable invasion of rights.”141 Proportionality. The public health objective may be valid in the sense that there exists a risk to the public, and the means may be reasonably likely to achieve that goal. Yet, a public health regulation is unconstitutional if the human burden imposed is wholly disproportionate to the expected benefit. “[T]he police power of a State,” said Justice Harlan, “may be exerted in such circumstances or by regulations so arbitrary and oppressive in particular cases as to justify the interference of the courts to prevent wrong, . . . and oppression.”142 Public health authorities have a constitutional responsibility not to over-reach in ways that unnecessarily invade personal spheres of autonomy. This suggests a requirement for a reasonable balance between the public good to be achieved and the degree of personal invasion. If the intervention is gratuitously onerous or unfair it may overstep constitutional boundaries. Harm Avoidance. Those who pose a risk to the community can be required to submit to compulsory measures for the common good. The control measure itself, however, should not pose a health risk to its subject. Justice Harlan emphasized that Henning Jacobson was a “fit person” for smallpox vaccination, but asserted that requiring a person to be immunized who would be harmed is “cruel and inhuman in the last degree.”143 If there had been evidence that the vaccination would seriously impair Jacobson’s health, he may have prevailed in this historic 141 197 U.S. at 31. Nebbia v. New York, 291 U.S. 502, 510–511 (1933) (public welfare regulation must not be “unreasonable, arbitrary, or capricious, and the means selected shall have a real and substantial relation to the object sought to be attained.”). 142 197 U.S. at 38–39. 143 197 U.S. at 39. case.144 Jacobson era cases reiterate the theme that public health actions must not harm subjects. For example, a quarantine of a district in San Francisco was held unconstitutional, in part, because it created conditions likely to spread bubonic plague.145 Similarly, courts required safe and habitable environments for persons subject to isolation on the theory that public health powers are designed to promote wellbeing, and not to punish the individual.146 B. Public Health Powers in the Modern Constitutional Era The march toward more rigorous constitutional scrutiny of governmental action has been slow, cyclical, and politically charged. During the two decades beginning in the 1960s, constitutional doctrine changed markedly. It is important to remember that constitutional law reflects culture, society, and politics. Many cultural developments brought about this 144 197 U.S. at 39 (“We are not to be understood as holding that the statute was intended to be applied to such a case [involving an unfit subject], or, if it was so intended, that the judiciary would not be competent to interfere and protect the health and life of the individual concerned.”). It is interesting to note that Henning Jacobson did allege that, when a child, a vaccination had caused him “great and extreme suffering.” Id. at 36. Jacobson’s claim of potential harm was not without merit. In Jenner’s original publication in the Inquiry in 1799, he noted in case IV, a severe adverse reaction to vaccination now termed anaphylaxis. Harry Bloch, Edward Jenner (1749–1823): The History and Effects of Smallpox, Inoculation, and Vaccination, 147 AM. J. DIS. CHILD. 772, 774 (1993). 145 Jew Ho v. Williamson, 103 F.10, 22 (C.C.N.D. Cal. 1900) (“[i]t must necessarily follow that, if a large . . . territory is quarantined, intercommunication of the people within that territory will rather tend to spread the disease than to restrict it.”). 146 See Kirk v. Wyman, 65 S.E. 387, 391 (S.C. 1909) (holding that even temporary isolation in a pesthouse would be “a serious affliction and peril to an elderly lady”); Youngberg v. Romeo, 457 U.S. 307 (1982) (holding that to effectuate the constitutional interests in “safety,” the state must provide “minimally adequate or reasonable training to ensure safety and freedom from undue restraint”). But see, Ex parte Martin, 188 P.2d 287, 291 (Cal. 1948) (upholding isolation of people with sexually transmitted diseases in over-crowded county jail). revolutionary shift: the civil rights movement for African-Americans, protests against the Vietnam War, and the re-emergence of feminism.147 Responding to these and other social movements, the Supreme Court, principally under Chief Justice Earl Warren, revitalized and strengthened the Court’s position on issues of equality and civil liberties. The Warren Court set a liberal agenda that prized personal freedom and non-discrimination, and exhibited a healthy suspicion of government. The Warren Court developed multiple standards of constitutional review, a form of constitutional reasoning still employed by the Supreme Court. It will be helpful to explain the standards used in equal protection analysis and to apply those standards to modern public health policies. It will become evident that even in an era of heightened constitutional scrutiny, the Court continues its permissive approach in most matters of public health. 1. Minimum Rationality Review The Court’s lowest, and most commonly used, standard of constitutional review is called the rational basis test. All public health regulation must, at least, comply with this minimum rationality standard.148 Rational basis review requires both a legitimate government objective and means that are reasonably related to attaining that objective. Police power regulation is a classically valid objective: “Public safety, public health, morality, peace, law and order—these 147 Thomas B. Stoddard and Walter Rieman, AIDS and the Rights of the Individual: Toward a More Sophisticated Understanding of Discrimination, 68 (Supp. 1) MILBANK QUART. 143, 146-49 (1990). 148 For a thoughtful examination of the subject, see Scott Burris, Rationality Review and the Politics of Public Health, 34 VILL. L. REV. 933 (1989). are some of the more conspicuous examples of [legitimate governmental interests].”149 The Court has expressly upheld numerous public health objectives, including traffic safety,150 detection of under-diagnosed disease,151 and disease prevention.152 Not only must the government’s purpose be valid, the means adopted must be reasonably directed toward achieving the public health objective.153 For example, an ordinance requiring owners of vacant lots to clear-cut all vegetation was invalidated because the town’s claim that noxious vines could grow was implausible.154 Rationality review is highly permissive of public health regulation, with the Court granting a strong presumption of constitutionality.155 Constitutional review “is not a license for courts to judge the wisdom, fairness, or logic of legislative choices.”156 The judiciary leaves the desirability of public health regulation to the legislature. Further, the legislature need not 149 Berman v. Parker, 348 U.S. 26 (1954). 150 Railway Express Agency, Inc. v. New York, 336 U.S. 106 (1949) (regulation of vehicle advertising upheld as a traffic safety measure). 151 Williamson v. Lee Optical, 348 U.S. 483 (1955) (upholding state law favoring ophthalmologists over optometrists to ensure proper diagnosis of eye disease). 152 Jacobson v. Massachusetts, 197 U.S. 11 (1905). 153 Heller v. Doe, 509 U.S. 312, 321 (1993) (courts accept “a legislature’s generalizations even when there is an imperfect fit between means and ends.”). 154 Berger v. City of Mayfield Heights, 154 F.3rd 621 (6th Cir. 1998) (ordinance requiring certain lots to be clear cut of all vegetation over eight inches was arbitrary). 155 Euclid v. Ambler Realty Co., 272 U.S. 365, 395 (1926) (persons adversely affected by public health regulation carry the burden of proving that the law is “arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare.”); Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364 (1973) (“the burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it.”). 156 FCC v. Beach Communications, 508 U.S. 307, 313 (1993). “actually articulate at any time the purpose or rationale” for its public health policy.157 Rather, public health regulation is upheld if there is “any reasonably conceivable state of facts that could provide a rational basis for the classification.”158 Scientific evidence of risk is the raison d’être of public health action. Yet, under rational basis review, the state is not obliged to produce scientific evidence.159 “A legislative choice is not subject to courtroom fact finding and may be based on rational speculation unsupported by evidence or empirical data.”160 Indeed, the courts often defer to expert agencies on matters of public health policy because agencies are faced with complex practical problems that require “rough accommodations—illogical, it may be, and unscientific.”161 The courts, under rationality review, have upheld a wide spectrum of public health regulations ranging from infectious disease 157 Nordlinger v. Hahn, 505 U.S. 1, 11 (1992). 158 Beach Communications, 508 U.S. at 313. 159 Heller v. Doe, 509 U.S. 312, 320 (1993) (upholding statutes requiring “clear and convincing” evidence to civilly commit mentally retarded, but “beyond a reasonable doubt” to commit mentally ill). 160 Beach Communications, 508 U.S. at 307 (1993). 161 Metropolis Theatre Co. v. Chicago, 228 U.S. 61, 69 (1913). screening162 and mandatory treatment163 to regulation of landfills164 and licensing of fishermen.165 Rationality review almost always results in a finding that police power regulation is constitutional. Yet, the Supreme Court on several occasions has engaged in more exacting scrutiny of discriminatory government action, while purporting to apply the rational basis test— so-called, “rational basis with a bite.” In City of Cleburne v. Cleburne Living Center, Inc.,166 the Supreme Court, using rational basis review, declared unconstitutional a zoning ordinance that effectively prevented the operation of a group home for persons with mental retardation. Under conventional rationality review, the judiciary would be deferential, but the Court felt that the legislature was motivated by animosity against a traditionally disenfranchised group. Similarly, in Roemer v. Evans,167 the Supreme Court saw prejudice against homosexuals, another group that is disadvantaged in the political process. Colorado had amended its state constitution, to prohibit all legislative, executive, or judicial action designed to protect lesbians or gay men from discrimination. The 162 Local 1812, American Federation of Government Employees v. United States Dep’t. of State, 662 F. Supp. 50 (D.D.C. 1987) (upholding government’s mandatory HIV testing program for foreign service personnel). 163 Reynolds v. McNichols, 488 F.2d 1378 (10th Cir. 1973) (no equal protection violation when female sex workers were detained and treated, but not, Johns). 164 Pro-Eco v. Board of Comm’rs of Jay County, Indiana, 57 F.3d 505 (7th Cir. 1995) (depositing garbage in landfills is not a fundamental right; concern for public health is a sufficient reason to regulate landfills). 165 New York State Trawlers Ass’n v. Jorling, 16 F.3d 1303 (2d Cir. 1994) (upholding conservation law that prohibited trawlers from possessing lobsters in Long Island Sound). 166 473 U.S. 432 (1985). But see Heller v. Doe, 509 U.S. 312 (1993) (higher standard of proof for involuntary commitment of mentally ill, as opposed to mentally retarded, had rational basis). 167 517 U.S. 620 (1996). Court held that the state constitutional amendment “fails, even defies,” the rational basis test.168 The State’s reason, said the Court, “seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests.”169 Both Cleburne and Roemer suggest that there may be areas where legislatures act against politically disfavored groups with such hostility that the Court will be prepared to examine legislative motives more carefully than in conventional applications of rationality review. Rationality review is extraordinarily important in public health because most prevention strategies will be measured against this standard. Since risk assessment and scientific evidence are so important in evaluating public health measures, rationality review hardly seems sufficient.170 This lowest standard of review does not force public health authorities to justify their actions by demonstrating a significant risk and that the intervention is likely to ameliorate that risk; nor does it require authorities to explain why they chose to target particularly vulnerable or unpopular groups such as gays, prostitutes, homeless persons, or drug users. Discrimination on the basis of sexual orientation, disability, and socio-economic class has played an important role in the history of public health. The future of rationality review in light of cases such as Cleburne and Roemer may well demonstrate whether the Court is prepared to look more carefully at disfavored treatment of politically unpopular groups. 2. Intermediate Review The Supreme Court adopts an intermediate level of review where government 168 Id., at 632. 169 Id. 170 Burris, supra note 130. discriminates on the basis of sex171 or against “illegitimate” children.172 Under this middle level of constitutional review, the state must establish that its classification serves important governmental objectives and must be substantially related to those objectives.173 Thus, the government’s interest must be “important,” not simply legitimate, and the relationship between means and ends must be “substantial,” not merely reasonable. The Court exercises great care in examining government policy under this middle tier of review. In invalidating gender discrimination at the Virginia Military Institute (VMI), Justice Ginsberg emphasized that the state must demonstrate “an exceedingly persuasive justification. . . . The burden of justification is demanding and rests entirely on the State.”174 Public health actions that classify on the basis of sex, therefore, are subject to a rigorous form of judicial review. Consider, for example, mandatory syphilis testing of female, but not male, applicants for a marriage license. This sexual classification probably would be unconstitutional, because it does not serve a substantial public health purpose.175 The pre-natal 171 United States v. Virginia, 116 S. Ct. 2264 (1996) (using intermediate scrutiny to invalidate the maintenance of an all-male military college). 172 New Jersey Welfare Rights Organization v. Cahill, 411 U.S. 619 (1973) (using interemediate scrutiny to strike down law that limited benefits to families with two individuals of the opposite sex “ceremoniously married”). 173 Craig v. Boren, 429 U.S. 190, 197 (1976) (gender-based classifications on legal drinking age must serve state interests and be substantially related to achievement of state objectives). 174 175 United States v. Virginia, 116 S. Ct. 2264, 2275 (1996). Reynolds v. McNichols, 488 F.2d 1380, 1383 (10th Cir. 1973) (enforcement of city’s “hold and treat” ordinance requiring testing and treatment of persons reasonably suspected of having an STD against a female sex worker, but not the John; “the ordinance is aimed at the primary source of venereal disease and the . . . prostitute was the potential source, not her wouldbe customer.”); Illinois v. Adams, 597 N.E.2d 574 (Ill. 1992) (mandatory HIV testing of prostitutes does not violate equal protection because it draws no distinction between male and female offenders, and no evidence of an intent by the legislature to disadvantage females). HIV testing of women, however, would probably withstand constitutional scrutiny, because the state could demonstrate a substantial reason for focusing the intervention on women. 3. Strict Scrutiny The Supreme Court strictly reviews laws that create “suspect” classifications or burden “fundamental” rights and liberty interests. The Court has decided that race,176 national origin,177 and, with some exceptions, alienage178 are suspect classes.179 The Court also strictly reviews government actions that burden fundamental rights and liberty interests including procreation,180 marriage,181 interstate travel,182 and bodily integrity.183 176 See, e.g., Loving v. Virginia, 388 U.S. 1 (1967) (invalidating Virginia’s miscegenation law that made it a crime for a white person to marry outside the Caucasian race). 177 See, e.g., Korematsu v. United States, 323 U.S. 214 (1944) (applying strict scrutiny to uphold the military curfew for persons of Japanese descent during World War II). 178 Classifications based on alienage involves discrimination against persons who are not United States citizens. See, e.g., Bernal v. Fainter, 467 U.S. 216 (1984) (invalidating law requiring that a notary public be a U.S. citizen). 179 So-called “positive” discrimination benefitting racial minorities also triggers strict scrutiny. See, e.g., Regents of University of California v. Bakke, 438 U.S. 265 (1978) (invalidating University of California’s affirmative action program for medical school admission). 180 Skinner v. Oklahoma, 316 U.S. 535 (1942) (striking down a statute authorizing the sterilization of habitual criminals). 181 Loving v. Virginia, 388 U.S. 1 (1967) (invalidating law prohibiting marriage between whites and non-whites). 182 Shapiro v. Thompson 394 U.S. 618 (1969) (invalidating the residency requirements for welfare programs). 183 Cruzan v. Director, Missouri Dep’t. of Health, 497 U.S. 261, 278 (1990) (“[T]he principle that a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment may be inferred from our prior decisions.”); Washington v. Harper, 494 U.S. 210, 221–22 (1990) (mentally ill prisoner has a “significant liberty interest in avoiding The usual judicial deference to public health regulation should dissolve in cases where the Court adopts a heightened standard of review. Although public health objectives undeniably are “compelling,” few governmental policies survive strict scrutiny. The Court is likely to reserve its highest level of scrutiny only for the most discriminatory or intrusive public health powers. Consider a public health intervention that discriminates on the basis of race or gender, such as the kind of public health intervention that was conducted in Jew Ho v. Williamson.184 In that case, a quarantine was made to operate exclusively against Chinese Americans, leaving Caucasian Americans free from coercive power. Although Jew Ho was decided in the early twentieth century, it is the kind of discriminatory intervention that would trigger strict scrutiny today. Interventions that deprive persons of their liberty (e.g., isolation) or bodily integrity (e.g., compulsory treatment) should also trigger heightened scrutiny. The power to detain persons with infectious disease, for example, would be put to a strict legal test.185 Civil confinement is a uniquely serious form of restraint because it constitutes a “massive curtailment of liberty.”186 Detention is justified not on a finding that a person has committed a criminal offense, but because of a prediction of future dangerousness. Individuals, moreover, are not detained for a the unwanted administration of antipsychotic drugs”). 184 103 F.10 (C.C.N.D. Cal. 1900). 185 State v. Snow, 324 S.W. 2d 532, 534 (S. Ct. Ark. 1959) (civil commitment law is not penal, but is to be strictly construed to protect rights of citizens). This section will not discuss segregation of persons with infectious disease in correctional facilities. Rather than using a “strict scrutiny” approach, courts give considerable deference to prison authority decisions to isolate inmates, even where the scientific evidence of significant risk appears weak. See e.g., Onishea v. Hopper, 171 F. 3d 1289 (11th Cir. 1999) (upholding segregation of HIV infected inmates). 186 Vitek v. Jones, 445 U.S. 480, 491 (1980); see Addington v. Texas, 441 U.S. 418, 425 (1979) (civil commitment is a “significant deprivation of liberty”). finite period based on the seriousness of past behavior. Rather, they are confined indefinitely, particularly if the condition is not susceptible to treatment. Under contemporary constitutional standards, the state has to demonstrate a compelling public health interest; a “well-targeted” intervention; and that there exists no “less restrictive alternative.”187 The state must also provide procedural due process. The following analysis uses civil commitment of the mentally ill as an analogy because, like detention of persons with infectious disease, the intervention is nonpunitive and is based on the health and safety of the individual and the community.188 A compelling state interest in confinement.— Under the Supreme Court’s “strict scrutiny” analysis, the state must have a compelling interest that is substantially furthered by the detention.189 Consequently, only persons who are truly dangerous (i.e., pose a significant risk of transmission), can be confined.190 In O’Connor v. Donaldson, the Supreme Court held that, without providing treatment, the state could not confine a non-dangerous mentally ill person who 187 The intrusiveness of the detention should be taken into account in a constitutional analysis: (i) the specific purpose of confinement— e.g., purely preventative or therapeutic; (ii) the duration of confinement— e.g., a short period of curative treatment or an indefinite period of preventive detention; and (iii) the place of confinement— e.g., in a person’s home, hospital, or jail. For example, scholars have uniformly rejected isolation of persons with HIV because the confinement would be preventive, indeterminate, and would require specially designated facilities. Larry Gostin, The Politics of AIDS: Compulsory State Powers, Public Health, and Civil Liberties, 49 Ohio L.J. 1017 (1989); Kathleen Sullivan & Martha Field, AIDS and the Coercive Power of the State, 23 Harv. C.R.-C.L. L. Rev. 139 (1988); Wendy Parmet, AIDS and Quarantine: The Revival of an Archaic Doctrine, 14 Hofstra L. Rev. 53 (1985); Merritt, supra note 130. 188 Greene v. Edwards, 263 S.E. 2d 661, 663 (W. Va. 1980) (“involuntary commitment for having communicable tuberculosis impinges on the right to liberty, full and complete liberty, no less than involuntary commitment for being mentally ill”). 189 190 City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 440 (1985). Scott Burris, Fear Itself: AIDS Herpes and Public Health Decisions, 3 Yale L. & Pol’y Rev. 479, 490-96 (1985). is capable of surviving in the community.191 Lower courts have gone further by requiring actual danger as a condition of civil confinement in both mental health192 and infectious disease193 contexts. For example, In re New York City v. Doe the court required clear and convincing evidence of the person’s inability to complete a course of TB medication before permitting restraint.194 A “well targeted” intervention.— Public health authorities sometimes order the detention of a large group of people— e.g., everyone in a geographic area. If some members of the group would not, in fact, transmit infection, the state action is overbroad. The Supreme Court finds over-inclusive restraints constitutionally impermissible because it deprives individuals of liberty without justification. For example, civil confinement of all homeless persons with tuberculosis on the theory that the entire class would fail to take their medication would restrain the liberty of those who would, in fact, comply. The Supreme Court is more tolerant of under-inclusive interventions— i.e., those that restrain some, but not all, dangerous persons. Yet, if the underinclusion was arbitrary, or worse, purposefully discriminatory, it could be constitutionally invalid. For example, confinement of gay men with HIV, but not others who engage in unsafe 191 422 U.S. 563, 575 (1975). 192 See, e.g., Suzuki v. Yen, 617 F.2d 173, 178 (9th Cir. 1980). 193 While courts defer to the professional judgment of health officials, they do require a finding of dangerousness. See State v. Snow, 324 S.W.2d 532, 534 (Ark. 1959) (basing rationale for commitment on “the theory that the public has an interest to be protected”); In re Halko, 54 Cal. Rptr. 661, 664 (Cal. Ct. App. 1966) (isolation of person with TB does not deprive a person of due process if the health officer has reasonable grounds to believe he is dangerous); Moore v. Draper, 57 S0. 2d 648, 650 (Fla. 1952) (when person’s disease is arrested to the point where he is no longer a danger, he may seek release); Moore v. Armstrong, 149 So. 2d 36, 37 (Fla. 1963) (same). 194 614 N.Y.S. 2d 8, 9 (App. Div. 1994); see City of York v. Antoinette R., 630 N.Y.S. 2d 1008 (Sup. Ct. 1995). sex, would be prejudicial and, arguably, unconstitutional. The least restrictive alternative.— Given the strict standard of review in cases involving deprivation of liberty, the state would not be permitted to resort to confinement if it could achieve its objectives through less drastic means.195 For example, if the state could avoid deprivation of liberty by directly observe therapy, it could be required to do so. However, the state probably does not have to go to extreme, or unduly expensive, means to avoid confinement.196 For example, the judiciary would be unlikely to require the government to provide economic services, benefits, and incentives to persuade individuals to take their medication.197 Nor must the state adopt less effective measures. In the context of tuberculosis, New York City health officials aptly argued that it could not be required “to exhaust a pre-set, rigid hierarchy of alternatives that would ostensibly encourage voluntary compliance ... regardless of the potentially adverse consequences to the public health.”198 Procedural due process.— Persons subject to detention are entitled to procedural due process. As the Supreme Court recognized, “there can be no doubt that involuntary commitment to a mental hospital, like involuntary confinement of an individual for any reason, is a 195 In re New York City v. Doe, 614 N.Y.S. 2d 8 (App. Div. 1994). The most developed expression of the right to less restrictive alternatives is in mental health cases. See, e.g., Covington v. Harris, 419 F.2d 617, 623 (D.C. 1969); Lessard v. Schmidt, 349 F. Supp. 1078, 1096 (E.D. Wis. 1972). 196 Lawrence O. Gostin, The Resurgent Tuberculosis Epidemic in the Era of AIDS: Reflections on Public Health, Law, and Society, 54 Md. L. Rev. 1, 108-112 (1995). 197 But see City of Newark v. J.S., 652 A. 2d 265 (N.J. 1993) (health officials usually have to show that they attempted step-by-step interventions, beginning with voluntary directly observed therapy, supplemented by incentives, such as a food or money reward for taking medication, and enablers, such as travel assistance, with commitment an absolute last resort). 198 Response to Public Comments Concerning Proposed Amendments to Section 11.47 of the Health Code 7 (March 2, 1993). deprivation of liberty which the State cannot accomplish without due process of law.”199 The extent of the process required depends on the nature and duration of the restraint.200 Certainly, the state must provide elaborate due process for long-term, non-emergency, detention.201 Noting that “civil commitment for any purpose constitutes a significant deprivation of liberty,”202 and that commitment “can engender adverse social consequences,” the Court has held that, in a civil commitment hearing, the government has the burden of proof by “clear and convincing evidence.”203 In Greene v. Edwards, the West Virginia Supreme Court reasoned that there is little difference between loss of liberty for mental health reasons and the loss of liberty for public health rationales.204 Persons with infectious disease, therefore, are entitled to similar procedural protections as persons with mental illness facing civil commitment. These procedural safeguards include the right to counsel, a hearing, and an appeal. Such rigorous procedural protections are 199 O'Connor v. Donaldson, 422 U.S. 563, 580 (1975) (Berger, C.J., concurring). See Addington v. Texas, 441 U.S. 418, 425–27 (1979); Vitek v. Jones, 445 U.S. 480, 491–92 (1980); Project Release v. Prevost, 722 F.2d 960, 971 (2d Cir. 1983). O’Connor v. Donaldson, 422 U.S. 563, 580 (1975) (Burger, C.J., concurring). 200 Washington v. Harper, 494 U.S. 210, 229-30 (1990). 201 See, e.g., In re Ballay, 482 F. 2d 648, 563-66 (D.C. Cir. 1973); Lessard v. Schmidt, 413 F. Supp. 1318 (E.D. Wis. 1976); but see Morales v. Turman, 562 F.2d 993, 998 (5th Cir. 1977) (“state should not be required to provide the procedural safeguards of a criminal trial when imposing a quarantine to protect the public against a highly communicable disease”). 202 Addington v. Texas, 441 U.S. 418, 425 (1979). See Jackson v. Indiana, 406 U.S. 715 (1972) (due process requires that nature of duration of commitment bear some reasonable relation to the purpose for which the individual is committed). 203 Addington v. Texas, 441 U.S. 418, 426 (1979) (requiring that the standard of proof in commitments for mental illness must be greater than the preponderance of evidence standard, but the reasonable doubt standard is not constitutionally required). 204 263 S.E. 2d 661, 663 (1980). justified by the fundamental invasion of liberty occasioned by long-term detention; the serious implications of erroneously finding a person dangerous; and the value of procedures in accurately determining complex facts which are important to predicting future dangerous behavior. Thus, provided they conform with procedural due process, public health authorities have ample power to detain persons to prevent transmission of infectious disease. The person or group confined must pose a significant risk to the public and the state must exhaust less restrictive alternatives. Beyond these procedural and substantive standards, public health authorities retain considerable discretion. The courts are unlikely to apply strict scrutiny to less intrusive interventions that invade bodily integrity in less consequential ways, such as compulsory vaccination205 and testing.206 For most other public health powers such as reporting and partner notification, the courts adopt a highly deferential approach.207 4. Beyond Levels of Constitutional Scrutiny Constitutional scholars, and members of the Court itself, often criticize the levels of review because they are inflexible and outcome determinative.208 Where the Court sees certain touchstones of constitutional concern such as a suspect classification or the violation of a fundamental right, the government almost invariably loses—strict scrutiny is “strict in theory, 205 Zucht v. King, 260 U.S. 174 (1922). 206 Skinner v. Railway Labor Executives’ Assn., 489 U.S. 602 (1989). 207 Whalen v. Roe, 429 U.S. 589 (1977). 208 See, e.g., San Antonio Independent Sch. Dist. v. Rodriguez, 411 U.S. 1, 109-110 (1973) (Marshall, J., dissenting) (a principled constitutional analysis would apply a spectrum of standards depending on the nature of the right and the discriminatory effects). but fatal in fact.”209 In the absence of these specific gages of constitutional concern, the Court uses the rational basis test and the government almost invariably wins. Certainly, different standards ought to apply depending on the class used or the right infringed. Yet, it is far from clear why such sharply different constitutional standards, and outcomes, should result. Strict scrutiny is invoked for classifications based on race, national origin, and alienage, but not sexual orientation,210 disability,211 or socio-economic status.212 Yet, each of these groups has experienced discrimination based on irrational fears and prejudices. Similarly, strict scrutiny is invoked for invasions of fundamental interests such as contraception, abortion, and interstate travel, but not for breaches of confidentiality213 or interference with the doctor/patient relationship.214 Yet, each of these liberty interests has importance to human dignity and individual freedom. Whatever differences exist between various status classifications and liberty interests, they are differences of degree, not of kind. At the same time, when the Court applies rationality review, it fails to ask public health authorities to justify their actions in the most elemental ways: What are the specific public 209 Fullilove v. Klutznick, 448 U.S. 448 (1980) (Marshall, J., concurring). 210 Bowers v. Hardwick, 478 U.S. 186 (1986) (applying rational basis test to uphold a state statute prohibiting sodomy). 211 Heller v. Doe, 509 U.S. 312 (1993) (applying rational basis test to uphold civil commitment for mentally ill and mentally retarded persons under different standards); City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985) (using rational basis test to invalidate a zoning ordinance that prevented the construction of a group home for persons with mentally retardation). 212 San Antonio Independent Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973). 213 Whalen v. Roe, 429 U.S. 589 (1977) (upholding state statute requiring that the state be provided with every prescription for certain types of drugs). 214 Washington v. Glucksberg, 117 S. Ct. 2258, 2267 (1997) (upholding state statute prohibiting the causation or assistance of suicide). health goods sought by the intervention? What scientific evidence exists demonstrating a significant health risk? Are the interventions proposed likely to be effective? Two problems, then, are evident in constitutional analysis. First, the standards provide a rigid “all-or-nothing” assessment, rather than a graduated examination based on the burdens posed by discriminatory classifications or infringements on autonomy, privacy, and liberty. Second, under rationality review, by far the most common form of scrutiny, there are few demands placed on public health authorities to justify their actions based on scientific evidence of risk reduction. For a different way of thinking about levels of constitutional review, think of a sliding scale that subjects public health policies to increasingly demanding levels of constitutional review. As the intrusiveness and unfairness of the public health policy grows, so would the level of scrutiny. As a policy moves across the continuum because of its restrictive or discriminatory quality, public health would gradually give way to individual liberty (see Figure). [Insert Figure here] Part IV: Economic Liberty and the Pursuit of Public Health Public health regulation does not merely restrict personal liberties. It also undoubtedly interferes with economic liberties. The Framers clearly intended to protect economic liberties, as evidenced by several constitutional provisions. Notably, the Constitution forbids the state from depriving persons of property (or life or liberty) without due process of law (economic due process),215 impairing the obligations of contracts (freedom of contract),216 and taking private property for public use without just compensation (“takings”).217 In this Part, I will examine the normative and constitutional justifications for economic liberties. A. Economic Due Process Conservative scholars argue that economic liberties are important in the constitutional design and observe that the Supreme Court has, at times, strongly protected commercial relationships.218 However, on more careful reflection, the Court has more often seen public 215 The 5th and 14th Amendments, respectively, provide that neither the federal government nor the states shall deprive any person of “life, liberty, or property without due process of law.” 216 Article I, §10: “No State shall . . . pass any . . . law impairing the obligations of Contracts.” 217 Fifth Amendment: “nor shall private property be taken for public use without just compensation.” 218 For early conservative scholarship see HERBERT SPENCER, SOCIAL STATICS (1851) * (advocating a laissez-faire, unregulated economy); CHRISTOPHER TIEDMEMAN, A TREATISE ON THE LIMITATIONS OF THE POLICE POWER IN THE UNITED STATES * (1886) (government regulations unduly interfere with the natural rights of people to own and use property). For more recent accounts, see RICHARD EPSTEIN, TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT DOMAIN (1985); BERNARD SIEGAN, ECONOMIC LIBERTIES AND THE CONSTITUTION (1980). health regulation as a sufficient justification for government infringement of economic freedom. Not long after the Constitution was ratified, the Supreme Court explored the idea that private property deserved protection as part of the natural law.219 However, none of these early cases involved public health regulation. Indeed, when the Supreme Court came to examine a challenge to sanitary regulation of slaughter houses in 1873, it said that government had the undoubted power to restrict occupational freedoms for the common good.220 During the nineteenth century, the Court began to find that business regulation could violate due process, but still, when it came to public health, it affirmed the state’s power.221 The Lochner era, from 1905 to 1937, was a time when the Court most prized economic freedoms and aggressively invalidated numerous attempts at social and economic regulation. Certainly, the Court struck down important health and social legislation protecting trades unions,222 setting minimum wages for women,223 protecting consumers from products that posed health risks,224 219 Calder v. Bull, 3 U.S. 386 (1798); Fletcher v. Peck, 10 U.S. 87 (1810); Terrett v. Taylor, 13 U.S. 43 (1815). 220 Slaughter-House Cases, 83 U.S. 36, 81 (1873) (“under no construction of [due process] . . . can the restraint . . . upon the exercise of their trade be held to be a deprivation of property. . . .”). See also Wendy E. Parmet, From Slaughter-House to Lochner: The Rise and Fall of the Constitutionalization of Public Health, 40 AM. J. LEGAL HIST. 476 (1996). 221 Mugler v. Kansas, 123 U.S. 623 (1887) (upholding state prohibition on the sale of alcoholic beverages). 222 Coppage v. Kansas, 236 U.S. 1 (1915) (invalidating federal and state legislation forbidding employers to require employees to agree not to join a union). 223 Adkins v. Children’s Hosp., 261 U.S. 525 (invalidating a law establishing minimum wages for women). 224 Weaver v. Palmer Bros. Co., 270 U.S. 402 (1926) (striking down law that prohibited use of rags and debris in mattresses enacted to protect the public health). and licensing or regulating businesses.225 Nevertheless, as evidenced by its decision in Jacobson v. Massachusetts, the Court conceded, at least nominally, that the state could exercise its police power even if it interfered with liberty.226 Since Roosevelt’s New Deal, the Court has granted police power regulation a strong presumption of validity even if it interferes with economic and commercial life. B. Freedom of Contract While some scholars espouse a belief in free economic relationships, the contracts clause has become a relatively unimportant limitation on public health powers. The clause applies only to the states; challenges to federal restrictions on contractual freedom must be brought under the due process clause. Moreover, the clause applies only to existing contracts; states are free to limit the terms of future contracts.227 While most public health regulation affects future economic relationships, it sometimes can affect existing contracts. The Supreme Court, however, has emphasized that the police power “is an exercise of the sovereign right of the Government to protect the lives, health, morals, comfort, and general welfare of the people, and is paramount to any rights under contracts between individuals.”228 The modern Court uses a three part test to assess government regulation that interferes 225 New State Ice Co. v. Liebmann, 285 U.S. 262 (1932) (striking down a statute forbidding a state commission to license the sale of ice except on proof of necessity). 226 197 U.S. 11 (1905). 227 Ogden v. Saunders, 25 U.S. 213 (1827). 228 Manigault v. Springs, 199 U.S. 473, 480 (1905). with private contracts:229 (1) Is there a substantial impairment of a contractual relationship? (2) If so, does it serve a significant and legitimate public purpose? and (3) Is it reasonably related to achieving the goal?230 Like substantive due process, this is a highly permissive standard that generally affirms governmental power to regulate contractual relationships reasonably in the public interest. C. Regulatory “Takings” Attorney General Meese . . . had a specific, aggressive, and it seemed to me, quite radical project in mind: to use the takings clause of the Fifth Amendment as a severe brake on federal and state regulation of business and property. Charles Fried (1991)231 Many of the changes in takings law . . . correspond quite closely to a blueprint for takings doctrine proposed by Professor Richard Epstein. . . . This observation [is] both remarkable and troubling. After all, Epstein’s work was almost universally criticized . . . [and its] proposed end result—the overturning of a century’s worth 229 A more stringent test is used for interference with government contracts. United States Trust Co. v. New Jersey, 431 U.S. 1 (1977). 230 Energy Reserves Group, Inc. v. Kansas Power & Light, Co. 459 U.S. 400, 411–413 231 ORDER AND LAW: ARGUING THE REAGAN REVOLUTION: A FIRSTHAND ACCOUNT 183 (1983). (1991). of health, safety, and economic regulation—would sink this country in a constitutional crisis. . . . What we have found is a large and increasingly successful campaign by conservatives and libertarians to use the federal judiciary to achieve an anti-regulatory, anti-environmental agenda. Douglas T. Kendall & Charles P. Lord (1998)232 The federal government and the states have the power of eminent domain, which is the authority to confiscate private property for a governmental activity. However, the Fifth Amendment imposes a significant constraint on this power by requiring “just compensation” for private property taken for a public use.233 The theory behind the takings clause is that individuals should not have to bear public burdens which should be borne by the community as a whole. Consequently, the takings clause is about government spreading loss when pursuing the public interest.234 Despite its just purposes, an expansive interpretation of the takings clause would shackle public health agencies by requiring them to provide compensation whenever regulation 232 The Takings Project: A Critical Analysis and Assessment of the Progress So Far, 25 B.C. ENVTL. AFF. L. REV. 509, 510 (1998), referring to RICHARD A. EPSTEIN, TAKINGS, PRIVATE PROPERTY AND THE POWER OF EMINENT DOMAIN (1985). 233 See generally, Jed Rubenfeld, Usings, 102 YALE L.J. 1077 (1993); ROBERT MELTZ ET AL., THE TAKINGS ISSUE: CONSTITUTIONAL LIMITS ON LAND-USE CONTROL AND ENVIRONMENTAL REGULATION (1999); STEVEN J. EAGLE, REGULATORY TAKINGS (1996). 234 Eastern Enters. v. Apfel, 118 S. Ct. 2131 (1998) (per O’Connor J, with three justices concurring and one justice concurring in the judgment); see also Frank I. Michelman, Property, Utility and Fairness; Comments on the Ethical Foundations of “Just Compensation Law,” 80 HARV. L. REV. 1165 (1967). significantly reduced the value of private property. Since public health regulation, by definition, restricts commercial uses of property, it has become a focal point for a sustained conservative critique of social action itself.235 Government confiscation or physical occupation of property is a “possessory” taking that certainly requires compensation. During the early twentieth century, however, the Supreme Court held that government regulation which “reaches a certain magnitude” also is a taking requiring compensation.236 Initially, this idea of “regulatory” takings was not highly problematic for public health agencies because the Court suggested that government need not compensate property owners when regulating within the police power.237 However, regulatory takings took on public health significance in the 1992 case of Lucas v. South Carolina Coastal Council.238 In Lucas, Justice Scalia, the most intellectually powerful conservative voice on the Court, said that a person suffers a taking if: regulation denies all economically beneficial or productive use of real property239 and there were no similar restrictions “that background principles of the State’s 235 See Epstein, supra note 218. 236 Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922). 237 Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 413 (1922) (“as long recognized, some values are enjoyed under an implied limitation and must yield to the police power.”); see Catherine Connors, Back to the Future: The “Nuisance Exception” to the Just Compensation Clause, 19 CAP. U.L. REV. 139 (1990); Joseph Sax, Takings and the Police Power, 74 YALE L.J. 36 (1964). 238 505 U.S. 1003 (1992); see Richard J. Lazarus, Putting the Correct “Spin” on Lucas, 45 STAN. L. REV. 1411 (1993). 239 Regulatory takings doctrine applies to real property (real estate or land) and not to personal property (e.g., commercial activities such as manufacture or sale): “by reason of the State’s traditionally high degree of control over commercial dealings, he [the regulatory subject] ought to be aware of the possibility that new regulation might even render his property worthless.” Lucas, 505 U.S. 1027–28. law of property and nuisance already place upon land ownership.”240 Justice Scalia suggested that common law nuisance was the key to resolving the question of when regulation amounted to an uncompensated taking; an owner who lost the value of her land would suffer a taking if the public health regulation was not considered a nuisance under the common law. The Court’s reasoning in Lucas is problematic because it forces public health authorities to define and abate public hazards according to vague and outdated common law understandings of nuisance. Even the most astute legal scholars perceive common law nuisance as confusing and indecipherable.241 Consequently, when democratically elected government, according to modern standards, regulates to avert a serious public harm, it cannot be certain whether it will be compelled to compensate property owners. This narrowing of what may be considered a nuisance, and expansion of property interests, effectively constrains police power regulation. The Court, in effect, has simultaneously frozen the understanding of public health that existed in earlier times, while allowing the normative value of property to expand to meet modern libertarian expectations. Since Lucas, state and lower federal courts often have resisted expansion of the takings doctrine, ruling against compensation resulting from environmental regulation.242 However, 240 Lucas, 505 U.S. 1029. The Court has also said that police power regulation becomes a taking if the burden imposed is not roughly proportionate to the government’s justification for regulating. Dolan v. City of Tigard, 114 S. Ct. 2309 (1994). 241 See, e.g., Lucas, 505 U.S. at 1055 (Blackman, J. dissenting) (“one searches in vain . . . for anything resembling a principle in the common law of nuisance.”); William Prosser, Nuisance Without Fault, 20 TEX. L. REV. 399, 410 (1942) (describing common law nuisance as “an “impenetrable jungle,” “legal garbage,” and full of “vagueness, uncertainty and confusion”). 242 See, e.g., Gazza v. New York State Dep’t of Envtl. Conservation, 679 N.E.2d 1035 (N.Y. 1997) (protecting wetlands); Anello v. Zoning Board of Appeals, 678 N.E.2d 870 (N.Y. 1997) (preventing development on steep slopes). other courts have used the “property rights” tenor of Justice Scalia’s opinion to strike down important public health and environmental regulation.243 The Court of Appeals for the Federal Circuit established a rule that government may have to compensate an owner for any regulation that causes a diminution in value, unless there is a “reciprocity of advantage” by which the owner receives “direct compensating benefits.”244 This kind of balancing appears to place private property interests on a par with the state’s sovereign interests in community well-being. Takings litigation can penetrate deeply into core public health concerns. Consider the federal court decision upholding Philip Morris’s claim that a Massachusetts law requiring manufacturers to disclose the ingredients in cigarettes was a regulatory taking.245 If Charles Fried was correct in describing a conservative plan to use the takings clause as a severe constraint on public health regulation, then the outcome remains uncertain. Much depends on the direction of the Supreme Court which, at present, has four members apparently committed to expansion of the regulatory takings doctrine.246 This split among the Justices was manifested in a 1998 case when a bitterly divided Court said that some public programs allocating benefits and burdens of economic life to promote the common good effect a taking. The plurality, representing the four-member conservative bloc on this issue, supported a 243 Loveladies Harbor v. United States, 28 F.3d 1171 (Fed. Cir. 1994); Preseault v. United States, 100 F. 3d 1525 (1996). 244 Florida Rock Indus. v. United States, 18 F.3d 1560, 1570–71 (Fed. Cir. 1994). 245 Philip Morris, Inc. v. Reilly, 113 F. Supp. 2d 129 (D. Mass. 2000); Philip Morris v. Harshbarger, 159 F.3d 670 (1st Cir. 1998); see Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984) (upholding, in part, a pesticide manufacture’s claim that compelled disclosure of trade secrets constituted a regulatory taking). 246 The four consistent voles favoring an expansive reading of the takings clause are Chief Justice Rehnquist and Justices Scalia, Thomas and O’Connor. See Lazarus, supra note 238, at 109–21; Kendall & Lord, supra note 232, at 583–84. balancing test (i.e., “the character of the government’s action, its economic impact, and its interference with reasonable, investment-backed expectations”) that elevates economic justice to a new level in our constitutional democracy.247 D. The Normative Value of Economic Liberty Government regulation for the public’s health, as we have seen throughout this text, inevitably interferes with personal or economic liberties. The Court usually grants the legislature deference in the exercise of police powers. A permissive approach to government regulation is justified, in part, by democratic values; citizens elect representatives to enable them to make complex policy choices.248 A legislative choice to prefer collective health and wellbeing over individual interests deserves respect and insulation from aggressive judicial scrutiny. This is broadly the judicial approach to public health regulation affecting personal autonomy, as the Jacobson case illustrates. Heightened scrutiny is reserved for those rare instances where public health interventions intrude on fundamental rights and interests, such as total deprivation of liberty. The normative issue is whether there is something in the nature of economic liberty that warrants a departure from the normal deference to public health regulation. Put another way, how important is unbridled freedom in property uses, financial relationships, and the pursuit of occupations? I see no reason why the diminution of economic liberties should be taken more 247 248 Eastern Enterprises, 118 S. Ct. at 519. See, e.g., Miller v. Schone, 276 U.S. 272, 279 (1928) (“when forced to make a choice the state does not exceed its constitutional powers by deciding upon the destruction of one class of property to save another which, in the judgement of the legislature, is the greater value to the public”). seriously than the many deprivations of personal autonomy and privacy that routinely occur with public health regulation (e.g., vaccination, reporting, and contact tracing). Courts generally understand that some loss of individual freedom is necessary for the common welfare. Regulation that interferes with civil liberties does not cause conservative thinkers undue concern; nor is there any discussion of compensation to those who must forgo liberty for the collective good. The same logic ought to apply to economic regulation for the common welfare. The reason for the governmental intervention is to prevent owners from using their private property in ways that are harmful to the public interest. Thus, the state’s aim is not to deny economic opportunity per se, but only to foreclose commercial activities that are detrimental to public health and safety. The creation of private wealth, moreover, hardly can be regarded as a fundamental interest akin to total loss of personal freedom, for private wealth creation it is not essential to the achievement of a healthy and fulfilling life. Rarely does economic regulation affect an individual’s basic ability to obtain the necessities of life, such as food, shelter, and medical care. The conservative claim, of course, is not only that economic liberties have intrinsic value, but that they also have instrumental value. They claim that preserving economic liberty will help create wealth for the community-at-large. Even assuming that economic freedom reliably leads to greater overall prosperity, it is still reasonable for a legislature to make a social choice that favors immediate health and safety benefits over future wealth creation. A community cannot benefit from increased prosperity if it experiences excess morbidity and mortality from hazardous commercial activity. Government, to be sure, ought not carelessly or gratuitously interfere with economic freedoms. If government has a reason, however, based on averting a significant risk to the public’s health, then there appears nothing in the nature of economic liberty that should prevent the state from intervening; nor is there any reason why the state should provide compensation for regulating private commercial activities deemed detrimental to the communal good. Conclusion The role of public health in the constitutional design is complex, raising intellectually intriguing issues about government duty, power, and limits. The Court’s jurisprudence on government obligation to assure the conditions for the public’s health has been uninspiring. The Court continues to read the Constitution as a defensive document, void of any affirmative duty to protect the public’s health and safety. Hiding behind a flawed distinction between acts and omissions, the Court permits government to promise social protection but conspicuously fail to fulfill its promise. Throughout its history, the judiciary has largely deferred to the legislative and executive branches of government in the exercise of public health powers. In its earliest traditions, the Court embraced the idea of the social contract. Even in later jurisprudence where the Court purportedly engaged in more rigorous forms of scrutiny, it rarely found occasion to overturn the authority public health officials. Undoubtedly, personal autonomy, privacy, and liberty are exceptionally important values. However, they do not necessarily trump the equally important collective value of community health and wellbeing. Currently, we live an in age that is hostile to public health. Approximately one percent of all health care dollars are spent on population-based services; the rest (excluding environmental expenditures) are spent on personal medical services largely within the private sector. The public has an antipathy for government (particularly central government), believing that the state inherently cannot operate fairly or efficiently. People seek lower tax burdens, believing that the state should not deprive individuals of their hard-earned incomes. Finally, the public rejects regulation, believing that it stifles private enterprise and improperly interferes with economic freedom. History teaches that the Justices are not immune to public opinion and do insert their own ideologies into the jurisprudence. It is no secret that a majority of the modern Court is conservative. In one sense this may benefit public health, for it is part of the conservative judicial philosophy to defer to state action. However, in another sense, the current conservative judicial climate may be critically harmful to public health. The Court is undertaking a sustained project to deprive the federal government of much of its authority to intervene in matters of the environment and the public’s health. At the same time, conservatism stresses the importance of economic liberty, which is anti-regulatory in its tone and effects. The Court’s role in matters of reproductive freedom is widely acknowledged. Less well understood, however, is the importance of future appointments to the Court in the realm of public health. The Supreme Court is bitterly divided on many conservative projects that are meaningful to public health— e.g., new federalism and regulatory “takings.” The modern Court is poised to threaten the viability of a broad range of regulatory activities to protect human health and the environment. The power of Congress, and even the states, to respond effectively to health or environmental threats depends very much on the Court’s future constitutional adjudication. View publication stats