The most important role of public health agencies is to respond to emergencies in a way that helps
the public understand the threat and how they should best deal with it. Starting in the colonial
period, the courts have made it clear that agency power is greatest when it is dealing with
imminent threats to the public health and safety, and the more people who could be affected, the
greater the power to avoid harm. The history of public health jurisprudence is one of courts finding
reasons to support emergency public health actions, not one of preventing action unless it is
specifically authorized by law.
In cases where public health actions have been attacked as contrary to other laws, such as federal
laws regulating interstate commerce, the courts have found the public health actions valid, as long
as they were not shams.[Compagnie Francaise de Navigation a Vapeur v. Board of Health of State
of Louisiana, 186 U.S. 380 (1902)] Just as the courts will not interfere with emergency actions, nor
will having elaborate emergency laws substitute for good public health planning and adequate
resources to carry out the plans.[Model State Emergency Health Powers Act] Many states have
passed new emergency powers laws to address bioterrorism, but few have increased public health
department personnel and resources. In many cases, health departments must sign onto plans
that they cannot carry out. While law will not stand in the way of public health action if the health
department is courageous and knows what it is doing, law is important in sorting out the claims
that always arise after a major event. What is most important is not letting fear of the law lead to
bad public health decisions, and in not passing new laws that inadvertently increase liability by
setting up procedural requirements that cannot be satisfied in an emergency.
