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Public health is the classic government service, and it is a key administrative law practice area.[1]
The basic practice of administrative law is by government agencies and individuals or corporations who are regulated by governmental agencies or who want to influence governmental agencies. While some administrative law is practiced in the courtroom, most is outside the courtroom. The key difference is that the courtroom depends on two adversaries to present the case.
The first flaw in the courtroom adversary system is that cases are often decided on the skills or monetary resources of the adversaries, not the facts. The second is that no one is representing society, so that cases are often decided in ways that benefit one party but hurt society.
All courts, from the local district court in your community to the United States Supreme Court, recognize administrative law principles and the importance of letting public agencies do their job. In many cases, seeming weaknesses in public health laws, especially those dealing with emergencies, are really failures by counsel to understand how to make the laws work for the agency. This a special problem of legislatures which often weaken public health laws because they have mistaken ideas of what is necessary to sustain public health actions when and if the actions are challenged in court.
People lived near rivers or ocean ports because goods traveled by water
There were mosquito borne illness - malaria and yellow fever, waterborne diseases - cholera, typhoid, and the other diseases of the pre-vaccination, pre-sanitation world, including smallpox. Yellow fever nearly wiped out the Constitutional Convention. Philadelphia lost 10% of the population in one summer.[2]
The Shattuck Report[3] was the first demographic study of disease and life expectancy in the US and showed that the average life expectancy was 25 in the cities.
Blackstone, the definitive source of historical common law discussed death as the penalty for breaking quarantine.
For ten years prior, the yellow fever had raged almost annually in the city, and annual laws were passed to resist it. The wit of man was exhausted, but in vain. Never did the pestilence rage more violently than in the summer of 1798. The State was in despair. The rising hopes of the metropolis began to fade. The opinion was gaining ground, that the cause of this annual disease was indigenous, and that all precautions against its importation were useless. But the leading spirits of that day were unwilling to give up the city without a final desperate effort. The havoc in the summer of 1798 is represented as terrific. The whole country was roused. A cordon sanitaire was thrown around the city. Governor Mifflin of Pennsylvania proclaimed a non-intercourse between New York and Philadelphia.[4]
International trade and relations
War
Interstate Commerce - most federal laws and regulations to protect public health depend on the commerce power. There is a great debate over whether the federal government has the right to exercise the police power outside of the commerce clause.
The states retained the Draconian powers they exercised during the colonial and Articles of Confederation periods. We call these powers to protect the public health and safety the police powers. They predate the development of police departments by many decades and are restricted to public health and safety actions.
Since the founders knew the public health powers of the colonies, which were retained when they declared independence from England, it is clear that the constitution intends the state police powers to be broad
The public health service act was among the first laws passed by Congress. It dealt with the health of sailors and the inspection and quarantine of ships entering US waters.
Public health was one of the first governmental functions
Paul Revere served on the Boston Board of Health.[5]
The courts, not surprisingly, tended to defer to the public health authorities - what judge wanted to be known as the one who kept the health officer from doing his duty and controlling the epidemic?
Even in modern cases in other areas of law, the courts are more deferential when there is a clear and present threat to public health and safety.
Administrative law controls much of the organization and internal function of government agencies, including the courts and the police, and to a less extent the legislature. This is beyond the scope of this presentation.
The enforcement of laws that do not lead to criminal prosecution and punishment. Food sanitation rules are enforced by health departments and violators can be fined or shut down. If there is an allegation of a crime related to food sanitation, such as intentionally adulterating food, then this must be investigated and prosecuted by the police using criminal law standards, not administrative law standards.
Agencies use their special expertise to develop rules and technical standards that are binding as law. An example would be restaurant inspection standards.
Agencies can investigate and prepare reports, and provide advice and assistance to individuals and to other agencies.
Some agencies do all three, but some do not. For example, the CDC's main role is to advise state health departments and collect and analyze public health information. Its enforcement and rulemaking roll is very limited, and while it does recommend standards, they do not become law until adopted by other state or federal agencies.
Legislature
Courts
Executive Branch
Agencies that do enforcement or rulemaking must be in the executive branch. Public health agencies are classic executive branch agencies at both the state and federal levels.
These are agencies that are technically in the executive branch but which are run by directors or boards that are not directly answerable to the executive. At the federal level, the SEC is an independent agency. At the state level, some states and local governments have boards of health that try to protect the health department from political influence.
Most states do not have a single executive branch. Instead they have several, each headed by an independently elected official. For example, most states elect an attorney general who runs the state legal office and a governor who runs other agencies. The governor cannot tell the attorney general what to do, which can be very problematic if the governor must depend on the attorney general for legal services. Many states also elect state auditors, insurance commissioners, and other state wide offices.
State and health departments are either run by a board of health or the governor's office. In some states the board of health is not directly controlled by the governor.
In states where only the Attorney General can provide legal services, the health department, which is under the governor or a board of health, cannot make its own legal decisions or appear in court unless the attorney general's office approves and provides counsel.
Agencies are the mechanism by which political decisions are carried out. The fundamental control over agency actions is through the election of the official that oversees the agency. Political control is exercised by the head of the executive branch giving orders to the agency director or replacing the agency director.
Legislatures may insulate agencies from direct political action by having them answer to a board or commission that is appointed by the executive. The members of this board have fixed terms and can only be replaced when their term expires. This limits the political pressure the executive can put on the agency. At the federal level, the Securities and Exchange Commission is an independent agency. Some state and local health officers work for a board of health that provides greater or lesser protection from political influence.
Agencies may be part of the executive branch, but they are funded and authorized by the legislature. The legislature can direct agencies to carry out actions through statute or funding, and legislatures can block agency actions by statutory or funding changes. Even independent agencies such as health departments under boards of health are under the control of the legislature.
As long as an agency is operating within its enabling law and the constitution, courts defer to the agency because it is carrying out legislative goals. The courts often remind persons who are challenging agency actions that the proper way to change agency behavior is through the legislature.
Public health agencies face two critical political threats. First, is the pressure to change public health policy to satisfy political agendas that are not based on good public health principles. At one time, health departments faced pressure to use public health powers to carry out racially discriminatory policies. A current example is the refusal of many states to do proper contact tracing and reporting of HIV because of the lobbying by privacy advocates.
The second threat is more insidious and pervasive - the pressure by the executive and the legislature to keep public health problems out of the news and to reassure the public that everything is fine. This reduces pressure to raise taxes or divert money from other areas to pay for public health services. Even when health directors know that they are unable to deal with critical problems, such as responding to emergencies, they know that raising these issues will often cost them their jobs.[6]
All states, through legislation or the state constitution, gave their original health officers the general power to use their discretion to protect the public's health and safety. These were general grants of authority to protect the public health, with more specific public health laws evolving over time. The first comprehensive public health law was proposed by the Shattuck Report on Boston's Health Status in 1850.
The health officer would do what was necessary to deal with public health problems. Boards of health are quasi-legislative bodies that make public health policy decisions and oversee the health officer to insulate the health officer from political influence.
This is the core principle of administrative law - an agency is given broad powers and is expected to use its expertise to tailor those powers to the situation at hand. The more detailed the statutory guidance, the more limited the agency's discretion.
Someone contesting the agency's action must show that it is arbitrary or capricious, or is a sham designed to use public health powers for improper purposes. The petitioner is not allowed to second guess the policy decisions behind the agency's actions.[7]
The classic smallpox vaccination case was decided on the issue of whether an aggrieved citizen could challenge the board of health's policy decision to require smallpox vaccinations.[8]
As government has evolved since the early constitutional period, there has been a shift from general grants of authority to more specific laws and regulations, as discussed later. However, the foundation of administrative law remains the right of agencies to do specific enforcement and make specific regulations based on general grants of legal authority.[9]
It is beyond the ability of the legislature to spell out everything necessary to protect the public health.
It is impossible to anticipate every threat to the public health. Laws that try to specify emergency actions with detailed provisions often cause more problems in enforcement than laws with more general provisions.[10]
Public health threats demand quick action, which is impossible if you have to pass a law to address a new threat.
An important historical reason for accepting general powers was the belief by many courts that the legislature could not delegate the right to make rules to an agency. While this has been rejected, it left early courts with the choice of requiring a specific law by the legislature on everything, which was impossible, or letting the agencies use general authority.
The United States Supreme Court has never limited the state's right to use general powers in public health unless those are a sham to evade other constitutional protections.[11]
Unless the legislature has passed laws limiting the health department's use of general powers, the state courts have generally not interfered with the use of general powers. This is especially true for classic public health enforcement involving clear and immediate threats to health.
Many state legislatures have been successfully lobbied to limit the general powers of health departments, especially in communicable disease control. These can make public health actions difficult, but can be changed since they are not constitutional limitations. Many provisions of the model emergency health powers act are just restoring powers health departments had before they were limited in the 1980s and 1990s.
The introductory example of the abandoned fish trailer is an example of a problem that could not have been anticipated by the legislature.
The core due process requirement in the US legal system is the chance to tell your side of the story to a neutral decisionmaker. This need not be a judge in court, however. In many cases the right to be heard is satisfied by an administrative hearing at the agency level, which can only be reviewed by the court if the agency acts arbitrarily or capriciously. The key issue is when you get the hearing: before the health department acts or after? Research shows that pre-action hearings can make it difficult for agencies to take action and make those actions much more expensive.
City health officials seized 47 barrels of chicken that they claimed had become putrid. They did not give the owners of the cold storage plant a hearing before the seizure and they refused to pay the value of the chicken.
The United States Supreme Court said there is no constitutional right to a due process hearing before the state acts against a public health threat.[13] If the defendants believed that the health department acted improperly they could challenge the action later in court, and if they won they could get compensation.
The Constitution has specific provisions requiring that property owners be compensated if property is taken for public purpose. This has been the subject of bitter litigation in land use cases where the owners claim that the restrictions on the use of their land, such as bans on the development of wet lands, are a taking. In the public health context, if property threatens the public, it can be destroyed without compensation.[14] This can either been seen as a right to destroy dangerous property, or a determination that dangerous property has no value.
In many cases health departments will ask the courts to order someone to comply with a public health order or to cease and desist from an activity that endangers the public health. This is done through injunction proceeding. The court may grant an emergency injunction without hearing from the opposing party, but if it does, it will schedule a hearing as soon as possible to allow the party to be heard. The advantage of injunctions is that the court can use its power to hold persons in contempt to force them to comply with the order.
Many advocates and legal scholars oppose the use of public health decisionmaking and want all public health actions reviewed by the courts before the agency can act. They point to this case as evidence that the United States Supreme Court no longer accepts public health actions without a prior hearing. The plaintiff in Goldberg demanded a hearing and due process protections before the state could terminate her welfare benefits. She claimed that she needed special protections because she would be hurt so badly by the termination that a post-termination hearing would deprive her of her right to be heard.
The United States Supreme Court found for the plaintiff and required the government to give her a hearing before the benefits were terminated, and set out certain rights for persons in such hearings. These included the right to present oral testimony and to present witnesses.
While this is not a public health case, many lawyers have read it as extending the right of a hearing to general public health orders.
In Mathews v. Eldridge, 424 U.S. 319 (1976),[16] the United States Supreme Court limited Goldberg to its facts and allowed the termination of social security disability benefits without a pre-termination hearing. The court used a classic public health cost benefit analysis, focusing on whether the extra cost of the hearing increased the accuracy of the decision and changed the outcomes often enough to be worth doing. In almost all public health cases this test will be satisfied by a post-action hearing.
The court has extended the Mathews analysis in subsequent cases. While not overruling Goldberg, the court makes it clear that Goldberg is limited to its facts. With the subsequent revisions in the welfare laws to abolish the entitlement to welfare, it is not clear that Goldberg would even be applied in modern welfare cases.
There are several types of modern public health orders against persons.[17] Some orders restrict the occupations that a person can practice, such as preventing typhoid carriers from working in food handling, persons with Hanson's Disease from working in child care, or persons with HIV from working as prostitutes. Public health orders can require people to be tested for communicable diseases, to be treated for communicable diseases, or, if treatment is not sufficient or the person refuses treatment, to be confined so that they do not spread disease. Tuberculosis probably accounts for most of the orders to test, treat, or confine.[18] Concerns about bioterrorism have raised questions about the use of mass quarantine and isolation orders, as was done in Canada and Asia for the control of SARS.
The classic case upheld the detention of prostitutes for STI testing[19] after they had been arrested on criminal charges. The federal court upheld this order as a proper exercise of public health powers and did not require a pre-detention hearing. Once the prostitutes were tested or treated, they were released. More generally, the courts have found that the constitution does not require pre-detention hearings on disease control orders unless mandated by specific laws.
Many state laws have been criticized for not proving specific provisions for due process hearings on disease control orders that allow the detention of individuals. Specific due process provisions are not necessary for a detained person to demand a hearing. The US Constitution provides for the writ of habeas corpus, the right of every person detained by government for whatever purpose to have to be brought before a judge and be allowed to contest the legality of the detention. While there is an ongoing controversy whether this right can be suspended and when it applies to foreigners, there is no question that it applies to all public health orders. While a person is entitled to a habeas corpus hearing, there is no right to bail for public health detentions because that would undermine the purpose of the detention.[20]
Outside of criminal law and takings and certain other areas protected by the US Constitution, the Constitution allows Congress to set the standard for judicial review of administrative actions. Congress can allow the courts to decide cases de novo, meaning the court can ignore the agency findings. Congress can also allow certain administrative actions to be done without review by the courts. For example, the determination of smallpox compensation awards by the secretary of HHS cannot be appealed to the courts. This legislative power to limit review can also be used to require persons seeking habeas corpus review of detention orders to submit to an administrative agency review of their claims before they can talk to a judge.[21]
Public health agencies can make rules if they are authorized by the legislature. While rulemaking is important in public health, many agencies, such as the CDC, have limited or no authority to make rules. These agencies either do not do enforcement or enforcement statutes or rules made by other agencies.
While general powers are valuable to dealing with unexpected events, they give little direction to people engaged in routine activities such as running restaurants. By adopting standards such as food sanitation code, the health department can give detailed guidance on how to prepare and serve food safely
Regulations are usually published before they become effective and the public is allowed to comment on them. In the federal system, there is no right to a hearing on a rule unless specifically required by Congress. All comments must be made in writing. Some states require that the agency have a hearing and allow oral testimony on rules if requested by a certain number of persons. Public comment is important for regulations that raise difficult public policy issues, such as whether volunteer organizations such as churches have to meet the same sanitary regulations as businesses. If an agency does not comply with the statutory requirements for promulgating regulations, the court can suspend the regulation until it has been properly promulgated.[22]
While most public health enforcement is local or state based, businesses operate across many jurisdictions and need consistent standards. It is also important that public health standards reflect best practices. By adopting national standards, health departments across the country assure best practices and make it easier for national businesses to operate
Once a regulation has been properly issued, its validity cannot be challenged in court. This allows an agency to limit the grounds for challenging an agency action.[23] For example, once the standards for food inspection are adopted, a restaurant cannot litigate the proper temperature for keeping food cold or whether their alternative dishwashing method is acceptable if these are specified in the rules. Challenges to the rule must be made when the rule is promulgated, not in later litigation challenging the enforcement of the rule. Challenges to the agency's legal authority to make the rule or the constitutionality of the rule can be made at anytime since the rule cannot be valid if the agency does not have the power to issue it.
Adjudications resolve issues for specific parties and are like court trials. Rules are like statutes and apply to everyone. Since there is generally an individual's right to be heard as part of an adjudication, but not during a rulemaking, the courts have set up standards to deciding which is which. If the proceeding applies to all parties in the same situations, then it is a rulemaking and there is no right to a hearing.[24] If the proceeding depends on specific information about the party and applies only to that party, then it is an adjudication and requires a hearing.[25]
In contrast with court trials, where the judge is not supposed to know about facts being decided, agency decisionmakers are generally selected to have expertise in the subject being decided so that they can make more accurate decisions.
In most situations the administrative judge or hearing officer in an adjudication does not make the final ruling but makes recommendations to the agency director who makes the final decision. This allows the agency to make sure that all cases involving similar facts are decided the same way. This is especially important for large federal agencies which may decide hundreds of thousands of cases all over the US. In contrast, courts make decisions solely on the case before them, without reference to effect on other cases or on society in general, and often reach very different decisions on cases involving similar facts.
Many people worry that agencies are biased against regulated parties and do not give them a fair hearing. While the courts usually reject these claims of agency bias, some states have taken the adjudication powers away from the agency and put it in a central panel of administrative judges to reduce bias claims. Unfortunately, in many cases this gives up the benefit of having the cases decided by expert decisionmakers.
The right to do something once, such as the building permit for a new restaurant.
Allows an ongoing activity, such as a license for running a restaurant.
If you meet the standards, you get the permit or license. This allows for planning by businesses because they know what standards they must meet. This is much more efficient for the agency than allowing a business to open without review by the agency and only allowing the agency to close the business if it can prove it is not complying with the standards.
To get a license or permit you must agree to abide by the regulations of that business, to allow inspections of your business without notice or a warrant, and to keep records as required to show that you are in compliance with the appropriate rules. For example, a restaurant is subject to inspection during normal business hours without a warrant. If the restaurant does not allow the inspector to enter, then it can be closed. Agencies have access to records that are maintained as a condition of the license or permit, without having to get a subpoena or court order. This can be very important when tracing a food borne illness outbreak or a batch of bad prescription drugs.
The inspector is the judge and investigator. The party being inspected may accompany the inspector and present his side of the case during the inspection. The party is given a written report outlining problems and may appeal an adverse determination, such as a restaurant closing, to an administrative body or the courts.
If you refuse inspection, you are shut down.
Health departments often conduct public health inspections of private residences and businesses that do not have health department permits. These may be fire inspections, rat inspections, or other general health and safety inspections. While these inspections were traditionally done without a warrant,[26] the United States Supreme Court now requires a general or area warrant if the owner objects to the inspection.[27] These warrants do not require probable cause or specific information, but are based on general criteria such as periodic inspection timetables. If an inspector is refused entry, the usual procedure is to seek a court order requiring compliance with the inspection. If the owner does not comply with the court order, the court can impose contempt sanctions.
Administrative warrants cannot be used as a substitute for a criminal due process warrant. This is an important issue in joint public health/law enforcement investigations. The courts have carved out certain exceptions for closely regulated business that allows prosecution for information gained through administrative searches, but these exceptions are limited.[28]
In most cases, the first appeal is to the agency, not to the courts, and is often done in writing. The review can also be to a political body, such as the appeal of food sanitation citations to the city counsel.
State and federal courts require persons who want to contest agency actions to go though the agency review process before they can go to court. This saves the court's time and gives it a better record to review.
The agency does not need to defer to the inspector or the administrative judge, it can overrule them as long as it explains why.
Agency decisions can be reviewed by the courts according to the standards set by the legislature. If the regulated party believes that the action violates the Constitution or is not authorized by law, she may appeal directly to the courts. For example, there have been many challenges to rules banning smoking in restaurants, claiming that the health department does not have the authority to issue the rule. If the court rejects the constitutional challenge, the person has usually waived the agency appeal because she went to court before exhausting the agency process.
Public health agencies, with the CDC as a prime example, provide public information to help prevent dangerous conditions.
The health department can help assure that the plans will meet the sanitation code. This is very important for small businesses which are new to food handling.
The health department can help the employer train personnel who will be handling food, and can work with them to help understand the sanitary code requirements.
While the health department is often seen as an outsider that closes restaurants when it finds a problem, the health department has an important role in helping the restaurateur manage problems to protect the public and to protect the restaurant from closure or from legal claims that will result if a patron is injured by bad food. This is especially important when there is a risk a communicable diseases such as typhoid or hepatitis A being spread in the workplace by an infected employee.
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.[29]
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. 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.
[1] Richards, EP and Rathbun KC, "Public Health Law," in Public Health and Preventive Medicine, edited by Robert B. Wallace (Maxey, Roseneau, and Last), Appleton and Lange (1998) 1147-1154.
[2] John H. Powell, Bring Out Your Dead (1949
[4] Argument of counsel in Smith v. Turner, 48 U.S. (7 How.) 283, 340-41 (1849)
[5] Forbes, Paul Revere And The World He Lived In, 76-77 (1942
[6] Institute of Medicine, 1988. The Future of Public Health. National Academy Press: Washington, DC.
[10] Edward P. Richards and Katharine C. Rathbun, Review of the Model State Emergency Health Powers Act
[11] Yick Wo v. Hopkins, 118 U.S. 356 (1886) - regulations that applied different standards to Chinese owned laundries were stuck down.
[12] Richards EP. The jurisprudence of prevention: society's right of self-defense against dangerous individuals. Hastings Constitutional Law Quarterly 1989;16:329-92.
[14] Raynor v. Maryland Department of Health and Mental Hygiene, 676 A.2d 978, 110 Md.App. 165 (Md.Sp.App. 1996)
[17] Richards, EP and Rathbun KC, "The Role of the Police Power in 21st Century Public Health," Journal of Sexually Transmitted Diseases, 1999;26( 6):350-7.
[21] Richards EP, Rathbun KC. Making state public health laws work for SARS outbreaks. Emerg Infect Dis Feb 2004.
[22] Chocolate Manufacturers Assoc. of the United States, Appellant, v. John R. Block, Sec. U.S. Dept. of Agriculture; Samuel J. Cornelius, Administrator, Food and Nutrition Service and U.S. Department of Agriculture, 755 F.2d 1098 (1985).
[23] Heckler v. Campbell, 461 US 458 (1983).
[24] Bi-Metallic Investment Co. v. State Board of Equalization of Colorado, 239 U.S. 441, 36 S. Ct. 141, 60 L. Ed. 372 (1915)
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