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This chapter will explain the origins and current operations of public health emergency law, at both the federal and state levels. You will learn how public health law in the United States began as an area entrusted almost entirely to cities and the states. As transportation, and with it the possibility of rapid disease spread, became ever faster and more accessible, the original reliance on local containment mechanisms became outdated. As you will see throughout this chapter, however, public health law in the United States still reflects a strong orientation toward state and local dominance.
Keywords: Centers for Disease Control and Prevention, isolation, public health emergency, quarantinable communicable disease, quarantine, Surgeon General of the United States
This chapter will explain the origins and current operations of public health emergency law, at both the federal and state levels. You will learn how public health law in the United States began as an area entrusted almost entirely to cities and the states. As transportation, and with it the possibility of rapid disease spread, became ever faster and more accessible, the original reliance on local containment mechanisms became outdated. As you will see throughout this chapter, however, public health law in the United States still reflects a strong orientation toward state and local dominance.
Consider as you read a hypothetical proposed shortly after September 11 by David Fidler, a law professor at Indiana University. Professor Fidler imagined a scene in which Dr. Evil, who is considering possible targets for a bioterrorist attack, seeks legal advice. Rumpole the Malevolent, his lawyer, advises Dr. Evil that “your ideal legal target for a bioweapon attack is a country that, first of all, has a fragmented legal system, in that relevant legal powers to respond to a public health emergency are divided among actors at the national and local levels. Federalism is, for instance, a fragmented legal system.” Should the United States change its system to one that is more centralized?
Historian Elizabeth Tandy summarized the experiences of America’s first European settlers in this way: “The colonization of America was a bitter fight with disease and death from the very moment the resolute emigrants set foot on the little vessels which were to carry them on their long voyage.” Although we may tend to think of violence and the risk of starvation as being the most daunting obstacles for John Winthrop, William Penn, and others, infectious diseases were an equally fearsome and constant threat. Winthrop, writing to his wife in 1630, described the high death toll during the first winter in the Plymouth settlement from a disease that “grew out of an ill diet at sea and proved infectious.”
Where does the word “quarantine” come from and what does it mean?
The practice of quarantine began in 1374 in Venice as a way to protect its residents from the plague that was brought to the city by persons and goods disembarking from commercial ships. Ships arriving at the port from locations known to have suffered outbreaks of the plague were required to sit at anchor for 40 days before landing. The word “quarantine” comes from the Italian phrase “quaranta gironi,” which means 40 days.
As waves of smallpox and yellow fever swept through the settlements, many of the earliest laws enacted by American colonists concerned public health and protection from disease. Boston enacted a municipal ordinance providing legal authority for disease control in 1647; New York City followed suit in 1663. Citizens frequently acted after experiencing a disease outbreak; Philadelphia created the first municipal board of health in the new world after a yellow fever epidemic devastated the city in 1793, killing or causing the dispersal of almost 40 percent of the city’s population.
The following case, one of the most important in the history of public health law, arose during an emergency. At the turn of the 20th century, infectious disease was the leading cause of death in the United States. Between 1901 and 1903, a smallpox outbreak in Boston killed 276 people of the almost 1600 who became ill. In 1902, the board of health in Cambridge, a town adjacent to Boston, passed a resolution requiring every resident of the town to be vaccinated for smallpox. One resident, Henning Jacobson, refused, and eventually his case reached the Supreme Court.
Smallpox is a highly contagious viral disease characterized by fever and an eruption of vesicles and pustules, which even today kills five to thirty percent of infected persons. It is spread through close contact when infected persons cough out particles of the virus (variola major) from sores in their mouths and lungs. These particles can be inhaled, but are more commonly picked up as tiny dried droplets in the environment and inadvertently ingested or rubbed into the eyes.
The period during which an infected person can spread the infection is about three weeks, from just prior to the appearance of the rash until the last scab disappears. About half of those exposed to the virus develop the infection. There is an incubation period of seven to nineteen days (mean: twelve days) during which the infected person exhibits no symptoms. Once infected, a person always goes on to develop symptoms, but the severity of the cases varies from mild illness to rapid death.
Justice Harlan delivered the opinion of the court.
This case involves the validity, under the Constitution of the United States, of certain provisions in the statutes of Massachusetts relating to vaccination.
The [statutes] of that commonwealth provide that ‘the board of health of a city or town, if, in its opinion, it is necessary for the public health or safety, shall require and enforce the vaccination and revaccination of all the inhabitants thereof, and shall provide them with the means of free vaccination. Whoever, being over twenty-one years of age and not under guardianship, refuses or neglects to comply with such requirement shall forfeit $5.’
An exception is made in favor of ‘children who present a certificate, signed by a registered physician, that they are unfit subjects for vaccination.’
Proceeding under the above statutes, the board of health of the city of Cambridge, Massachusetts, on the 27th day of February, 1902, adopted the following regulation: ‘Whereas, smallpox has been prevalent to some extent in the city of Cambridge, and still continues to increase; and whereas, it is necessary for the speedy extermination of the disease that all persons not protected by vaccination should be vaccinated; and whereas, in the opinion of the board, the public health and safety require the vaccination or revaccination of all the inhabitants of Cambridge; be it ordered, that all the inhabitants habitants of the city who have not been successfully vaccinated since March 1st, 1897, be vaccinated or revaccinated.’
The above regulations being in force, … Jacobson, was proceeded against by a criminal complaint … The complaint charged that on the 17th day of July, 1902, the board of health of Cambridge, being of the opinion that it was necessary for the public health and safety, required the vaccination and revaccination of all the inhabitants …, and provided them with the means of free vaccination; and that the defendant … refused and neglected to comply with such requirement. …
The authority of the state to enact this statute is to be referred to what is commonly called the police power—a power which the state did not surrender when becoming a member of the Union under the Constitution. Although this court has refrained from any attempt to define the limits of that power, yet it has distinctly recognized the authority of a state to enact quarantine laws and ‘health laws of every description;’ indeed, all laws that relate to matters completely within its territory and which do not by their necessary operation affect the people of other states.
According to settled principles, the police power of a state must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety. It is equally true that the state may invest local bodies called into existence for purposes of local administration with authority in some appropriate way to safeguard the public health and the public safety. The mode or manner in which those results are to be accomplished is within the discretion of the state, subject, of course, so far as Federal power is concerned, only to the condition that no rule prescribed by a state, nor any regulation adopted by a local governmental agency acting under the sanction of state legislation, shall contravene the Constitution of the United States, nor infringe any right granted or secured by that instrument. …
…The defendant insists that his liberty is invaded when the state subjects him to fine or imprisonment for neglecting or refusing to submit to vaccination; 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; and that the execution of such a law against one who objects to vaccination, no matter for what reason, is nothing short of an assault upon his person.
But the liberty secured by the Constitution of the United States to every person within its jurisdiction 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.
This court has more than once recognized it as a fundamental principle that ‘persons and property are subjected to all kinds of restraints and burdens in order to secure the general comfort, health, and prosperity of the state; of the perfect right of the legislature to do which no question ever was, or upon acknowledged general principles ever can be, made, so far as natural persons are concerned.” ‘The possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, good order, and morals of the community. Even liberty itself, the greatest of all rights, is not unrestricted license to act according to one’s own will. It is only freedom from restraint under conditions essential to the equal enjoyment of the same right by others. It is, then, liberty regulated by law.
In the Constitution of Massachusetts adopted in 1780 it was laid down as a fundamental principle of the social compact that the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for ‘the common good,’ and that government is instituted ‘for the common good, for the protection, safety, prosperity, and happiness of the people, and not for the profit, honor, or private interests of any one man, family, or class of men.’ The good and welfare of the commonwealth, of which the legislature is primarily the judge, is the basis on which the police power rests in Massachusetts. …
[W]hen the regulation in question was adopted smallpox … was prevalent to some extent in the city of Cambridge, and the disease was increasing. If such was the situation, … it cannot be adjudged that the present regulation of the board of health was not necessary in order to protect the public health and secure the public safety. Smallpox being prevalent and increasing at Cambridge, the court would usurp the functions of another branch of government if it adjudged, … that the [vaccination order] was arbitrary, and not justified by the necessities of th[is] case. We say necessities of the case, because it might be that an acknowledged power of a local community to protect itself against an epidemic … might be exercised in particular circumstances and in reference to particular persons in such an arbitrary, unreasonable manner, or might go so far beyond what was reasonably required for the safety of the public, as to authorize or compel the courts to interfere for the protection of such persons. …
There is, of course, a sphere within which the individual may assert the supremacy of his own will, and rightfully dispute the authority of any human government—especially of any free government existing under a written constitution, to interfere with the exercise of that will. But it is equally true that in every well-ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand. An American citizen arriving at an American port on a vessel in which, during the voyage, there had been cases of yellow fever or Asiatic cholera, he, although apparently free from disease himself, may yet, in some circumstances, be held in quarantine against his will on board of such vessel or in a quarantine station, until it be ascertained by inspection, conducted with due diligence, that the danger of the spread of the disease among the community at large has disappeared.
The liberty secured by the 14th Amendment, this court has said, consists, in part, in the right of a person ‘to live and work where he will; and yet he may be compelled, by force if need be, against his will and without regard to his personal wishes or his pecuniary interests, or even his religious or political convictions, to take his place in the ranks of the army of his country, and risk the chance of being shot down in its defense. It is not, therefore, true that the power of the public to guard itself against imminent danger depends in every case involving the control of one’s body upon his willingness to submit to reasonable regulations established by the constituted authorities, under the sanction of the state, for the purpose of protecting the public collectively against such danger. …
[T]he defendant refused to submit to vaccination for the reason that he had, ‘when a child,’ been caused great and extreme suffering for a long period by a disease produced by vaccination; and that he had witnessed a similar result of vaccination, not only in the case of his son, but in the cases of others. …
Was defendant exempted from the operation of the statute simply because of his dread of the same evil results experienced by him when a child, and which he had observed in the cases of his son and other children? Could he reasonably claim such an exemption because ‘quite often,’ or ‘occasionally,’ injury had resulted from vaccination, or because it was impossible, in the opinion of some, by any practical test, to determine with absolute certainty whether a particular person could be safely vaccinated?
It seems to the court that an affirmative answer to these questions would practically strip the legislative department of its function to care for the public health and the public safety when endangered by epidemics of disease. Such an answer would mean that compulsory vaccination could not, in any conceivable case, be legally enforced in a community, even at the command of the legislature, however widespread the epidemic of smallpox, and however deep and universal was the belief of the community and of its medical advisers that a system of general vaccination was vital to the safety of all. …
[We nonetheless observe] that the police power of a state … 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. … It is easy, for instance, to suppose the case of an adult who is embraced by the mere words of the act, but yet to subject whom to vaccination in a particular condition of his health or body would be cruel and inhuman in the last degree. We are not to be understood as holding that the statute was intended to be applied to such a case, or, if it was so intended, that the judiciary would not … interfere and protect the health and life of the individual concerned.
[W]e are not inclined to hold that the statute establishes the absolute rule that an adult must be vaccinated if it be apparent or can be shown with reasonable certainty that he is not at the time a fit subject of vaccination, or that vaccination, by reason of his then condition, would seriously impair his health, or probably cause his death. No such case is here presented. It is the cause of an adult who, for aught that appears, was himself in perfect health and a fit subject of vaccination, and yet, while remaining in the community, refused to obey the statute and the regulation adopted in execution of its provisions for the protection of the public health and the public safety, confessedly endangered by the presence of a dangerous disease.
We now decide only that the statute covers the present case, and that nothing clearly appears that would justify this court in holding it to be unconstitutional and inoperative in its application to the plaintiff.
Jacobson is the most frequently cited case in American public health law. Moreover, when there is a constitutional challenge to a public health statute, it is often cited by both plaintiff and defendant, even though the Supreme Court upheld the Massachusetts law that Mr. Jacobson refused to obey. What are the principles in Jacobson that would lead both sides in a modern case to cite it? What aspects of the decision, if any, are outdated?
Note how the concept of “police power” is interwoven with the theme of localization. The Court ruled that the inherent police power of state governments—a power that the states “did not surrender when becoming a member of the union”—provided authority for the Commonwealth of Massachusetts and the Cambridge Board of Health to require smallpox vaccinations. At least in part, that conceptualization of a state-based plenary power to define the police powers necessary to achieve the common good was founded on the premise that public health was an example of “matters completely within [a state’s] territory and which do not by their necessary operation affect the people of other states.” Today, that degree of localization seems archaic.
In 1793, the nation’s capital was still located in Philadelphia. As a result, when a yellow fever epidemic virtually closed the city down that year, killing 10 percent of its population and sickening thousands more, it was a major threat to the young nation and its leaders, as well as a local public health crisis. Six years later, the city’s new board of health had a facility built outside the city, which they named the Lazaretto Quarantine Station. The origin of the word “lazaretto,” like that of “quarantine,” lay in 14th century Italy; “lazaretto” derives from the story of Lazarus, a leper; the word means pest house, or house of quarantine. The function of this lazaretto was the same as those established three centuries earlier: to examine all arriving ships, passengers, and cargo and to house the ill and those exposed to illness who were on board, as well as to disinfect the ship and its cargo.
The Lazaretto was positioned downstream of Philadelphia on the Delaware River. From there, a look-out was on watch to spot incoming vessels, which were stopped and inspected by Lazaretto staff, which included a quarantine master and a resident physician. If there were no signs of infection, the required certifications were completed and the ship could proceed to Philadelphia the next day.
If any crew or passengers showed signs of illness, however, a much longer process ensued. All those aboard were housed in the Lazaretto hospital until those who had become sick during the voyage either recovered or died. The ship itself was fumigated, scoured, and whitewashed. It took from a week to a month before the ship and its crew and passengers were released to continue their voyage to Philadelphia.
In the latter half of the 19th century, the nature of the work at the Lazaretto changed in several ways that were typical of the same changes occurring at all American port cities. Steamboats had replaced sailing vessels as transatlantic transportation, and the faster times of ocean crossings meant that there was often less risk of disease occurring at sea. Steamships also brought much higher levels of passenger traffic and a major jump in immigration to the United States. The number of passengers going through the Lazaretto inspection process jumped from 500 to 4000 in the year after steamship service began in Philadelphia. By 1879, nearly 30,000 people a year were emigrating to Philadelphia.
The increase in immigrants vastly increased the burden and cost of operating the Lazaretto, and the following year—1880—the state of Pennsylvania turned the Lazaretto over to federal authorities. The Lazaretto closed in 1895, replaced by a new quarantine facility located farther from Philadelphia, which operated until 1919. Ironically, after federal officials closed the Lazaretto, private investors drawn by its waterfront location transformed the Lazaretto into a resort known as the Orchard Club.
The development of public health law in the states is a less than entirely laudable story. Especially before the advent of antibiotics, local citizens were often unnerved by the proximity of quarantine facilities like the Lazaretto or terrified that they were at risk of contracting a dread disease that officials could not prevent or effectively control. In reaction, the public sometimes lashed out.
In 1858, the residents of Staten Island, New York (an island across from Manhattan) destroyed a local quarantine facility. The magazine Harper’s Weekly reported that the presence of the hospital had been a growing source of anger to residents who thought that the hospital was “breeding pestilence … and occasioning every year yellow fever panics.” When a state commission failed to order its closure, “the Staten Islanders took matters into their own hands. On Sept 1… a large party, ‘disguised and armed,’ attacked the hospital from two sides, removed the patients, and set the buildings on fire.”
Even uglier were the condemnations of groups of people believed to be of particular danger, but whose only real fault lay in being outsiders in a time of panic, and thus ideal scapegoats. Racist and anti-immigrant attitudes combined with the enormous discretionary power accorded to local officials and produced a series of shameful results. And unlike the outburst by the Staten Island mob, these actions were formal and considered, taken by government officials who could deploy the power and legitimacy of the state.
In 1892, four cases of typhoid fever were discovered in a tenement house in New York City among passengers who had recently arrived on the ship Massila, which carried a large number of eastern European immigrants. In response, city health officials ordered the quarantine of “every single Russian Jewish passenger” who had been on the ship, as well as the smaller number of Italian immigrants that the ship had carried. In addition, the persons who had been exposed to the Massila passengers after they arrived, mostly their neighbors in crowded ethnic ghettos, were also put under quarantine. They were taken to North Brother Island, in the East River, and kept in the cottages used there for others who were quarantined during this period (including Mary Mallon, known in the press as “Typhoid Mary”). Of the approximately 1200 immigrants who were detained, about 1100 were healthy newcomers to New York who happened to live close to the former Massila passengers who had become ill.
As legal historian Felice Batlan described the Massila quarantine:
These men, women, and children were detained for twenty-one days after the last case of typhus developed among any of those quarantined. As thousands of immigrants and city residents were detained in quarantine, the death rate among residents began to rise dramatically. Although the Health Department found it perplexing that the death rate from typhus was small for passengers and high among residents, the conditions of quarantine itself may have produced these deaths. The quarantine represented a tremendous mobilization of essentially unchecked municipal power with serious life and death consequences.
A few years later, on the west coast, a similar event occurred when cases of bubonic plague appeared in San Francisco among Chinese immigrants. The official reaction was aimed more at the vulnerable Chinese community than at the disease itself. The result was the filing of two lawsuits that established key principles to help curb similar abuses in later public health reactions.
In their first response to the disease, federal and local public health authorities collaborated to use an experimental vaccine for the required inoculation of all Chinese residents in San Francisco. In addition, the Chinese—and no one else—were prohibited from leaving the city without showing proof that they had been vaccinated. Law enforcement officers were stationed at major transportation points to enforce the order, and railroads were forbidden from selling tickets to “Asiatics or other races particularly liable” to bubonic plague unless they had a vaccination certificate.
The Chinese Consolidated Benevolent Association filed suit and won a decision in federal court invalidating the orders. The court found that there was no rational basis for requiring only Chinese residents to be inoculated before leaving the city and that the health officials had violated the Equal Protection Clause because the plaintiffs were singled out on account of their race (Wong Wai v. Williamson, 1900). However, the panic continued and local officials again acted in an irrational manner.
Faced with a court order prohibiting their first effort, the Board of Health recommended and the Board of Supervisors enacted, a quarantine, which the police department enforced, that applied solely to Chinese residents. The city directed that no one could enter or leave Chinatown, and specified the geographic boundary lines of the neighborhood so that only Chinese residents, and no white residents, were affected. Cordoned off with barbed wire and with food shortages mounting, residents again brought suit to challenge the city’s policy.
The result was the Jew Ho v. Williamson decision in Chapter 9. Re-read that opinion now. Again the court found that the public health officials had enforced a policy that was both discriminatory and irrational. In fact, the court noted, the quarantine of an entire community was likely to increase transmission of the disease, because healthy Chinatown residents now lacked a way to distance themselves from neighbors who were ill, since they were all trapped together in one small geographic area.
The New York and San Francisco quarantines directed against immigrants were among the most famous examples of disease control efforts that public health officials later came to regret. In part because of this history, in part simply because of the enormous discretionary power that public health agencies have traditionally wielded, today’s health departments have become much more sensitive to the rights of the individuals whose liberty interests are at stake when public panic threatens to subvert policies based on scientific knowledge.
While these human rights abuses may seem like they come from a different world, differences such as language can still produce horror stories. In 1998 in Fresno County, California, an elderly non-English-speaking woman with tuberculosis, who apparently did not understand the medical directions she was given, was jailed for 10 months when local officials ignored a law requiring that persons who were detained for treatment of tuberculosis must be housed in a medical facility rather than in a prison (Souvannarath v. Hadden, 2002).
When the colonies first formed the federal union, there was no national public health law. In a time when traveling any significant distance was rare, infectious disease outbreaks and epidemics were often localized, to an extent that is difficult to imagine today. Recall that the Supreme Court stated in Jacobson v. Massachusetts that enactment of quarantine and other health laws fell within the “police power” of each state. Before 1796, quarantines were solely the responsibility of state and local governments. Early federal involvement was minor. When Congress first passed a law to address quarantine, in 1796, it simply allowed the national government to assist state governments in the event of disease outbreaks.
The origin of independent federal public health authority derives from laws designed to provide care for 18th century merchant seamen, a group who traveled constantly and who often had little access to medical care when they became ill in strange cities. Moreover, their illnesses threatened the mercantile trade that was essential to the economy of the fledging nation. Thus the origins of what is now the U.S. Public Health Service began in 1798, when Congress established a fund to provide treatment for sick and injured merchant seamen.
The marine hospital fund, as it was known, was financed by deductions from the sailors’ wages that were then used to build hospitals in port cities. By the end of the Civil War, many of these hospitals had been taken over by either the Union or Confederate armies and only a handful were still operational. The trend to federal control began after the Civil War. In 1870, the Secretary of the Treasury, in whose department the marine hospital fund was administered, initiated a major organizational reform of the system.
In the following decade, two critical events happened. First, the Treasury Department realigned the loose network of remaining hospitals into a Marine Hospital Service (MHS), administered centrally, under the direction of the new position of supervising surgeon. The second major event resulted from an 1877 yellow fever epidemic that spread rapidly from New Orleans up the Mississippi River, a signal to the nation that increased mobility made localized control of infectious disease inadequate. Congress reacted by passing the National Quarantine Act of 1878, conferring quarantine authority for the first time on a board of expert physicians, the National Board of Health (NBH), and authorizing the construction of federal quarantine facilities.
An intense bureaucratic struggle ensued between the MHS and the NBH. During its short life, the NBH garnered political enemies by aggressively policing signs of new outbreaks, especially yellow fever, and at different times imposed quarantine restrictions on both New Orleans and Memphis. Although the actions may have saved lives, these moves angered local businesses and politicians, which in turn reduced Congressional support for the NBH. The rivalry effectively ended in 1882, when supporters of the MHS successfully shifted budget funds to it and away from the NHB.
During this time, the leader of the MHS and the first supervising surgeon was a former Civil War surgeon, John Maynard Woodworth. Woodworth adopted a military model for the physicians in the MHS, who began wearing uniforms and served in the MHS as troops did in the military, subject to deployment to sites where they were needed. This development was formalized in 1889, with the renaming of the MHS physician group as the Commissioned Corps. In 1902, Congress changed the organizational name to the Public Health and Marine Hospital Service. Later renamed as simply the Public Health Service, the agency includes a Commissioned Corps of health care professionals (dentists, nurses, and pharmacists as well as doctors). The PHS is an agency within the Department of Health and Human Services, and highest ranking member of the Corps is the Surgeon General.
In the first half of the 20th century, the Corps was increasingly used for military purposes. It served an important role in the Spanish-American War in 1898, when PHS doctors cared for wounded service members and operated quarantine stations to prevent troops infected with yellow fever from returning to the states from Cuba or Puerto Rico. The 1902 legislation also authorized the President to utilize PHS officers in times of threatened or actual war, and President Woodrow Wilson signed an Executive Order in 1917 that allowed for the PHS to be detailed for use in World War I. A 1943 law went further and authorized the President to convert the PHS into a military service during times of war.
The early 20th century also saw the gradual elimination of quarantine facilities operated by the states. The primary motivation was financial. Officials in states where major ports were located wanted to shift the cost of immigration-related health examinations and monitoring to Washington, where there was more expertise and a larger budget. This ended a long period during which state and local politicians rewarded supporters by appointing them as health officers to oversee incoming ships, creating a situation ripe for corruption. Physicians who were disturbed by the incompetence of these appointees also supported federalizing the facilities. By 1921, all of the states had relinquished their role in policing persons and goods coming to the United States from abroad.
Quarantine work is essentially scientific in its nature, and our committee is a unit in feeling that such work cannot be carried on efficiently unless the tenure of office be independent of changes in administration and politics. The United States Public Health Service, by its organization, the character, training, and experience of its personnel and its opportunities for constant communication with all foreign ports, is admirably equipped to administer quarantine in a most efficient manner. … One of the most important reasons for a national control is the absolutely imperative need that the office of Health Officer of a port be taken out of politics. … Under Federal control, there is continuity of service, uniformity of procedure and policy [and] constant supervision over the acts of the health officers …
Dr. Charles L. Dana
New York Times, January 2, 1916
As the 20th century continued, science revolutionized the field of public health. Advances in bacteriology enabled pharmaceutical and behavorial interventions that substantially reduced the incidence of yellow fever, malaria, cholera, typhoid, diphtheria, and tuberculosis. In 1946, what had been a malaria control project centered in southern states became the Communicable Disease Center, with its headquarters in Atlanta. After several changes to the name, it became the Centers for Disease Control and Prevention, still known as the CDC. Operating as a branch of the PHS, the CDC has the most advanced disease surveillance system in the world.
The core of federal public health law is found in the statutes that authorize actions by DHHS, PHS, and CDC. The bedrock question in this field is still how legal authority should be divided between federal and state governments. In reading the statutory sections that follow, ask yourself how Congress has delineated the different roles for federal and state officials in the current era, when the dynamics of a public health crisis have become more complex than those involving the diseases that are now under control. Meanwhile, each state has its own set of public health statutes.
§ 243 General grant of authority
(a) Enforcement of quarantine regulations; prevention of communicable diseasesThe Secretary is authorized to develop [and implement] a plan under which … resources of the Service … may be effectively used to control epidemics of any disease or condition and to meet other health emergencies or problems. …
The Secretary may, at the request of the appropriate State or local authority, extend temporary (not in excess of six months) assistance to States or localities in meeting health emergencies of such a nature as to warrant Federal assistance. …
§ 247d. Public Health Emergencies
Emergencies a disease or disorder presents a public health emergency; ora public health emergency, including significant outbreaks of infectious diseases or bioterrorist attacks, otherwise exists, the Secretary may take such action as may be appropriate to respond to the public health emergency … Any such determination of a public health emergency terminates upon the Secretary declaring that the emergency no longer exists, or upon the expiration of the 90-day period beginning on the date on which the determination is made by the Secretary, whichever occurs first. Determinations that terminate under the preceding sentence may be renewed by the Secretary … Not later than 48 hours after making a determination under this subsection of a public health emergency (including a renewal), the Secretary shall submit to the Congress written notification of the determination. …
§ 264. Regulations to control communicable diseases