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Administrative and Public Health Law

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Public Health is state and local. Can the Feds require smallpox vaccinations? Invasion Clause? Limits of the Police Power. Very broad. Protect public health and ... – PowerPoint PPT presentation

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Title: Administrative and Public Health Law


1
Administrative and Public Health Law
  • An Introduction for MPH Students
  • Edward P. Richards
  • Director, Program in Law, Science, and Public
    Health
  • Louisiana State University Law Center
  • richards_at_lsu.edu
  • http//biotech.law.lsu.edu

2
First Things
  • 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 nonintercourse between
    New York and Philadelphia.

3
Communicable Disease in the Colonies
  • Mostly poorly drained coastal areas
  • Malaria, Yellow Fever
  • Smallpox
  • Terrible epidemics
  • Nearly wiped out the Constitutional Convention
  • Quarantines, areas of non-intercourse
  • Colonial governments did public health

4
Constitutional Provisions
  • Articles of Confederation
  • Left all powers to the states
  • Did not work during the War
  • Constitution
  • Divided powers between the state and federal
    government
  • Reserved the police power to the states

5
Police Power
  • Police departments came later
  • Power to protect the public health and safety
  • Communicable disease control
  • Sanitation
  • Nuisance
  • Drinking water

6
Federal Powers
  • Direct constitutional powers
  • Interstate commerce
  • Foreign Trade
  • War
  • Civil Rights (13, 14, 15th amendments)
  • Income Tax
  • Most regulation is Commerce Clause

7
Is there a Federal Police Power?
  • Constitutional Debate
  • US Supreme Court says no, but ...
  • Can the Feds do local disease control?
  • CDC only comes in at the state's invitation
  • Public Health is state and local
  • Can the Feds require smallpox vaccinations?
  • Invasion Clause?

8
Limits of the Police Power
  • Very broad
  • Protect public health and safety
  • Must be prospective
  • Public health regulations are about preventing
    future harm
  • Must be civil, not criminal
  • The reason for the action, and not the results,
    determine whether it is criminal
  • Confinement in jail
  • Megan's laws and confinement of sexual predators

9
Administrative Law
  • Public health law, and most health law, is
    carried out by government agencies
  • State Department of Health
  • HHS - CDC, FDA
  • EPA
  • More generally, government works through agencies

10
Constitutional Basis of Administrative Law
  • The US Constitution does not mention agencies
  • The founders did not anticipate that there would
    be much federal government
  • Administrative law doctrines have been shaped by
    Congress and the courts, within the constraints
    of the Constitution

11
Separation of Powers
  • Agencies are part of the executive branch of
    government
  • Created by legislatures
  • Reviewed by courts
  • Federal agencies are under the President
  • Independent agencies have appointed commissions
  • States can have multiple executives
  • AG, Insurance Commissioner, etc.

12
Legal Justification for Agencies
  • Expertise
  • Agencies are meant to have expert staff who
    manage complex problems
  • Efficiency
  • Agencies have more efficient enforcement powers
    because they are not limited by criminal law
    protections
  • Flexibility
  • Agencies can act without new legislation
  • Agencies can tap new expertise as needed

13
Historical Background
  • First 100 years - state law
  • Through the late 1800s, the states did almost all
    regulation
  • They were very intrusive
  • Limited some by the US Supreme Court in the late
    1800s
  • Interference with interstate commerce
  • Due process and equal protection
  • Chinese Laundry cases

14
Federal Agencies
  • Interstate Commerce Commission
  • Antitrust
  • Railroads
  • New Deal
  • Modern agencies
  • Supreme Court fights - switch in time, saves nine
  • Still very limited
  • Post-WW II - never really demobilized

15
Enabling Legislation
  • Agencies are established by legislation
  • Establishes structure and mission
  • Budget
  • Can be detailed or broad
  • Protect the public health
  • Cheap electric power and plenty of it
  • Contrast with the ADA
  • Agency is limited by the legislation and the
    state and US constitutions

16
Handout on LA General Powers
17
Agency Functions
  • Rulemaking
  • Agencies make rules to particularize statutes and
    for public guidance
  • The public is allowed to participate in
    rulemaking
  • Adjudications
  • Agencies take enforcement actions through agency
    courts

18
Limits on Agency Power
  • Agencies cannot act beyond the constitution or
    the enabling legislation
  • Agencies must follow appropriate procedures
  • APAs
  • Agency rules

19
Federal Court Deference to Agency Action
  • Courts defer to agency decisionmaking on area of
    agency expertise
  • Fact finding
  • Rulemaking
  • Cannot be "arbitrary or capricious"
  • Courts do not defer to agency interpretations of
    the law

20
State Variations
  • Most states are more suspicious of agencies than
    is the United States Supreme Court
  • States tend to give greater rights of judicial
    review
  • States often require more agency due process
  • Not unreasonable, given the limited expertise of
    many state agencies

21
St. Mark's Baths
  • ... defendants and the intervening patrons
    challenge the soundness of the scientific
    judgments upon which the Health Council
    regulation is based .... They go further and
    argue that facilities such as St. Mark's, which
    attempts to educate its patrons with written
    materials, signed pledges, and posted notices as
    to the advisability of safe sexual practices,
    provide a positive force in combating AIDS, and a
    valuable communication link between public health
    authorities and the homosexual community. While
    these arguments and proposals may have varying
    degrees of merit, they overlook a fundamental
    principle of applicable law "It is not for the
    courts to determine which scientific view is
    correct in ruling upon whether the police power
    has been properly exercised. The judicial
    function is exhausted with the discovery that the
    relation between means and end is not wholly vain
    and fanciful, an illusory pretense."

22
Core Public Health Activities
23
Disease reporting
  • No right of privacy
  • No right to refuse reporting
  • Can inspect medical records
  • Child abuse and violent injury reporting
  • Also extended to medical procedures, occupational
    illnesses, use of scheduled drugs, and other
    areas of public health concern

24
Disease Investigation
  • Contract Tracing
  • Partner Notification
  • Investigations of business and food
    establishments
  • Public health data can be reported to the police,
    but it cannot be the basis of prosecution

25
Mandatory treatment and restrictions
  • Vaccination law
  • Jacobson - no free riders
  • No requirement for religious exception
  • VD/STI/TB, others
  • Can require testing or treatment
  • Can hold in jail if you refuse
  • Habeas Corpus is the remedy
  • Many states have weakened these laws due to
    political pressure over AIDS

26
Environmental Health
  • Food sanitation, drinking-water treatment, and
    wastewater disposal
  • Most public health orders are directed at
    environmental health problems.
  • Two central legal questions
  • When does the government owe compensation to the
    owners of regulated property?
  • When can inspectors enter private premises to
    look for public health law violations?

27
Vital Statistics
  • Birth and death records
  • Disease registries

28
Political Control of Agencies
  • Agency heads are political appointees
  • Federal independent agencies are different
  • Some states have boards of health, but not much
    improvement
  • Agency goals are subservient to other political
    agendas
  • Salary is also a political control

29
Impact of Political Control
  • Feds
  • Conformation battles at the federal level
  • Can still get talented people at the top
  • More problems at midlevel, esp. for experts
  • States
  • Salaries limit expertise in many positions
  • Very difficult to get real experts at the top
    because of improper political pressures

30
Impact on Public Health
  • Future of Public Health
  • IOM 1988
  • No career track for high level public health
    professionals
  • Fired for political disputes
  • No pension rights, no severance, not contracts
  • You cannot stay in public health if you protect
    the public health
  • Do agencies have expertise any more?

31
Study Problem
  • Bathhouses in LA

32
Bathhouse History
  • Stonewall Riots in 1969
  • Beginning of the gay rights movement
  • Politicians realize the power of gay voting
    blocks
  • Bathhouses
  • Originally really steam baths, but the old guys
    died off
  • Became commercial sex clubs

33
Disease Epidemiology in Bathhouses
  • Exposure patterns
  • 10-20 contacts a night
  • 1000 contacts a year
  • Everything is an STD
  • As contact frequency goes up, overall
    transmission increases, even if the disease is
    not very contagious

34
Transmissibility (rough)
  • Contact efficiency X number of contacts__________
    _______________________
  • percent of immune/infected persons

35
Hepatitis B
  • Sexually transmitted, but low efficiency
  • Gonorrhea - about 100 efficient
  • Bathhouses
  • Lots of contacts
  • Lots of uninfected people
  • Quickly became endemic
  • Also a syphilis epidemic and lots of gonorrhea
  • No action to close the bathhouses because of
    politics

36
What did this mean for HIV?
  • HIV came into the US in the late 1970s
  • Hard to transmit sexually
  • More contracts, more transmission
  • Co-infection with other STDs increases
    transmission
  • Bathhouses allowed the infection to spread
    rapidly in gay men
  • 500,000 infected before we figured out what was
    happening

37
Bathhouses today
  • Some states closed them in the mid 1980s
  • Many went broke because their customers died
  • Now they are reopening as a new cohort of young
    gay men comes of age without knowledge of the
    AIDS holocaust
  • Should we close them?

38
Failed efforts
  • New Orleans tried to use zoning violations
  • Said they were not really health clubs
  • Already zoned for health clubs
  • Presumption for the owners in zoning denials
  • Court said they met the zoning criteria
  • This was just an end run

39
What would be a better attack?
  • General Powers
  • Keeping a disorderly house
  • Criminal violation for keeping a place where
    criminal activity goes on
  • What are the crimes?
  • Unsafe sex can be reckless endangerment
  • LA Crimes against Nature Law is Probably
    Unconstitutional after the recent United States
    Supreme Court case
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