My mother never grounded me, never said “because I said so,” and never counted to 10. She didn’t even count to 3. She just said “1.” Her authority was absolute. I obeyed because the consequences of not doing so were frighteningly unthinkable. Fortunately for you and me, we do not live under my mother’s roof (Father does, but by choice). We live in a land where we are free to question authority and wonder: Where does Public Health get the nerve to tell us what to do?
Apparently, it comes from the Constitution, the one that begins with “We the People.” Here are three main sources of public health power:*
Commerce Clause The Federal Government only has the powers given to it by the Constitution (“enumerated powers”). This includes the power to spend money, tax, and regulate interstate commerce. Much of what the Government governs, from marijuana cultivation to guns in schools, draws its authority from the Commerce Clause**. It’s what gives the Food & Drug Administration (FDA) the authority to set standards for the foods and drugs we consume and protect us from faulty protects. The latitudes and limits of the clause were central in the debate surrounding the Supreme Court’s decision to uphold the insurance mandate of the Affordable Care Act. This and other challenges to Congress’s authority have limited the interpretation of the clause to existing interstate economic activities with direct and substantial economic impact.
Police Powers Unlike the Federal Government, which is limited to the powers named in the constitution, States get all the powers that aren’t enumerated. The authority for States to enforce quarantines in disease outbreaks, evacuations in emergencies, and for public schools to require vaccinations comes from the 10th Amendment, which gives States “powers not delegated to the United States by the Constitution” to protect and promote public health, safety, welfare, and morals". The only catch is that the actions are necessary, reasonable, and don’t interfere with individual rights. States can delegate these powers to local districts. That’s why Public Health regulations on safety look different in different states and towns.
Individual Rights The Federal and State government may have lots of power, but so do you. Though there is no individual right to healthcare in the US, as there is in many countries, people do have the right to demand as well as resist some public health actions. Individuals are guaranteed the right to due process as well as certain civil rights and liberties. These rights can be used to challenge government overreach in the name of public health (e.g. quarantines without reason) as well as push the government to make healthcare more accessible. The right to medical interpreters, for example, comes from the Civil Rights Act of 1964.
Policy Implications: I trust you can piece this together on your own.
*All un-cited wisdom comes from class notes from Michelle Mello’s Public Health Law— the only Health Policy course I could not ace/ace-minus (no grudges; Prof. Mello is wicked badass). All mis-cited wisdom comes from me.
**Both have been challenged, with different outcomes.