Class 1 Public Health Law (Midterm Study)

Public Health Law

"Public health law is the study of the legal powers and duties of the state to assure the conditions for people to be healthy (to identify, prevent, and ameliorate risks to health in the population) and the limitations on the power of the state to constrain the autonomy, privacy, liberty, proprietary, or other legally protected interests of individuals for the common good. The prime objective of public health law is to pursue the highest possible level of physical and mental health in the population, consistent with the values of social justice."

Supremacy Clause

"This Constitution, and the laws of the United States ... shall be the supreme law of the land... laws of any State to the contrary notwithstanding." Congress may preempt or supersede state public health regulation, even if the state is acting squarely within its police powers. Supremacy Clause in the Constitution- state law cannot affect Federal Law

Federalism

Describes the relationship between the federal and state governments, specifically their authority to act. Theoretically, federalism grants the national government only limited powers, while the states possess broad power to safeguard the public's health, safety, welfare, and morals. Federalism separates the pool of legislative authority into two tiers of government: federal and state.

President's Cabinet

Made up of 15 executive departments: Agriculture, Commerce, Defense, Education, Energy, Health and Human Services, Homeland Security, Housing and Urban Development, Interior, Labor, State, Transportation, Treasury, and Veterans Affairs, and the Attorney General (DOJ).

Does the state require the right to health?

No right to health, public welfare assistance, housing, quality education, or medical care

What are the disadvantages of an executive order?

The political downside to executive orders, then, basically boils down to two things: 1) Getting struck down by the courts, and 2) Looking like you can't pass your agenda through Congress and are acting as an all-powerful executive — in a system designed to limit absolute power.

Tenth Amendment

The power not delegated to the federal government by the Constitution are reserved for the states. States entered the union as separate sovereigns. States have concurrent right to ta/spend. States have 2 unique powers: Parens patriae, and police power to address the public's health, safety, welfare, and morals.

What is an example of when the Commerce Clause was not upheld?

US v. Lopez (1995): Gun Free School Zone; US v. Morrison (2000): Violence Against Women Act; Nat'l Fed'n of Indep. Bus. v. Sebelius (2012): ACA individual mandate

Parens Patriae

"Parent of the Country". To protect the interests of minors and incapacitated persons or, in some cases, the populace of the state as a whole-express the states' inherent authority to safeguard the community's welfare. State Attorney General represents state and/ or population's interests.

What are the Federal Public Health Powers?

(1) Commerce Clause; (2) Power to Tax and Spend

Who are the State Attorneys General?

56 state and territorial AGs: 43 elected by popular vote; the rest are appointed (mostly by Governor). Vary by state but powers generally include: civil suits; represent state agencies; defend and/or challenge the constitutionality of legislative or administrative actions; corporate, criminal, charity issues; and enforce air, water pollution, and hazardous waste laws.

Bill

A bill is a draft, or tentative version, of what might become part of the written law. A bill that is enacted is called an act or statute.

Local Governments

A creation of the state and the Constitution. States decide how much authority to provide their municipalities and it is not necessarily uniform throughout the state. Local governments are often the primary regulators for public health. "Laboratories of democracy"

Preemption

Allows Congress to supplant state statutes, regulations, and common law. Express preemption exists when a federal statute explicitly declares that it supersedes state and local law. Implied preemption exists when the language of the statue and its legislative history imply Congress's intent to supersede state or local law without expressingly declaring it. When a higher level of government restricts the authority of a lower level to address an issue-you might be successful in a lower level government, but might not be successful in a higher level.

Example of Commerce Clause

Commerce Clause: direct regulation E.g., Controlled Substances Act, National Labor Relations Act, Public Health Services Act. 1937 to 1995, the Supreme Court did not find a single piece of social or economic legislation unconstitutional on the basis that Congress had exceeded its commerce power. This expansive constitutional construction enabled federal authorities to reach deeply into traditional realms of state public health power = diminishing state power

Case Law

Courts interpret the law as applied to the facts of a case

Trump's Executive Order

Executive Order Minimizing the Economic Burden of the Patient Protection and Affordable Care Act Pending Repeal. It is the policy of my Administration to seek the prompt repeal of the Patient Protection and Affordable Care Act. directs agencies to grant relief to all constituencies affected by the sprawling 2010 health-care law: consumers, insurers, hospitals, doctors, pharmaceutical companies, states and others. It does not describe specific federal rules to be softened or lifted, but it appears to give room for agencies to eliminate an array of ACA taxes and requirements. . the heads of other executive departments and agencies shall exercise all authority and discretion available to them to waive, defer, grant exemptions from, or delay the implementation of any provision or requirement of the Act that would impose a fiscal burden on any State or a cost, fee, tax, penalty, or regulatory burden on individuals, families, healthcare providers, health insurers, patients, recipients of healthcare services, purchasers of health insurance, or makers of medical devices, products, or medications.

What are the advatantages of an executive order?

Executive actions are sometimes derogatorily referred to as "legislating by executive order" — basically, what a president does when Congress won't comply with his wishes.

What makes up the State (and Local) Government?

Governor (Mayor) State (local) agencies, Departments of Health, Transportation, Education, State Attorneys General, State Legislature (local council), and State (local) courts

State and Local Obligations

Have an obligation to fulfill core public health functions. States and localities are closer to the people and to the problems causing ill health. States and localities are also often the best unit of government to deal with complex, poorly understood problems "laboratories of democracy."

Trump's Executive Order: Why couldn't Trump repeal the ACA?

It was legislation. Only Congress can repeal legislation.

Power to Tax and Spend

One of the Federal Public Health Powers: Congress shall have Power to collect Taxes to provide for the general Welfare of the U.S. The Power to Tax Is the Power to Raise Revenue, Regulate Risk Behavior, and Induce Health- Promoting Behaviors. Influence state and local governments; Funding/Defunding public health services, infrastructures, agencies; Influence personal behaviors; ACA Individual mandate upheld as a tax. A tax for the general welfare of the government.

Commerce Clause

One of the Federal Public Health Powers: Congress's power to regulate commerce among the states/ It affords Congress potent regulatory authority. Article I, Section 8, states that " the Congress shall have the power... to regulate Commerce with foreign Nations, and among the Federal States and with the Indian tribes." This provision grants considerable power to the federal government to adopt economic and social regulation. It also limits the state police power, via the Dormant Commerce Claus. Often used to justify exercising legislative power over the activities of states and their citizens. Ongoing controversy regarding balance of power between the federal government and the states. Ex: a farmer making grain on his own territory

Legislation

Refers to the preparation and enactment of laws by a legislative body through its lawmaking process. The legislative process includes evaluating, amending, and voting on proposed laws and is concerned with the words used in the bill to communicate the values, judgments, and purposes of the proposal. An idea becomes an item of legislative business when it is written as a bill. A bill is a draft, or tentative version, of what might become part of the written law. A bill that is enacted is called an act or statute.

Police Powers

State, local, and tribal authorities: Evokes images of an organized civil force for maintaining order, preventing and detecting crime, and enforcing criminal laws. "Science and mode of governance where the polity assumed control over, and became implicated in, the basic conduct of social life." The authority to inherent in the state to enact laws, promulgate regulations, and adjudicate To: Protect, preserve, and promote and Restrict private interests (within federal and state constitutional limits)

Dormant Commerce Claus

States cannot pass legislation that discriminates against or excessively burdens interstate commerce. = law benefits state at expense of out of state interests. Example: NY law prohibiting the sale of milk from outside NY for less than NY prices. Example: MI law that permitted in-state wineries to sell wine to consumers over internet directly but prohibited out-of-state wineries from doing the same

Does the Constitution set forth affirmative obligations to provide service or protect people from harm?

The Constitution does not set forth affirmative obligations to provide services or to protect people from harm. There is no government requirement to provide aid even where such aid may be necessary to secure life, liberty, or property

US v Morrison

The Court struck down the private civil remedy for the Violence Against Women Act. In spite of congressional findings that violence impairs the ability of women to work, harms businesses, and increases national health care costs, the Court found no national effects. They were outside the reach of the federal government.

the Federal Administrative Procedure Act (FAPA)

The FAPA is a remedial statute designed to ensure uniformity and openness in the procedures used by federal agencies. The Act is comprised of a comprehensive regulatory scheme governing regulations, adjudications, and rule making in general terms. The FAPA is the major source for federal administrative agency law, while state agencies' administration and regulation are governed by comparable state acts.

What is Federal Law?

The Supreme Law of the Land

Quarantine

The exercise of compulsory powers of isolation, that may prevent individuals from transmitting a communicable infection. But by fostering distrust and alienation, coercion may cause other individuals to avoid testing, counseling, or treatment, ultimately increasing the spread of disease.

Executive Order

an executive order is an official statement from the president about how the federal agencies he oversees are to use their resources. An executive order is not the president creating new law or appropriating new money from the U.S. Treasury — both things that are the domain of Congress; it is the president instructing the government how it is to work within the parameters that are already set by Congress and the Constitution.Applies to agencies and departments= The executive order carries out the law, but they do not create law/legislation. Why not everyone?-everyone else, affect the change within agencies.

Administrative Law

encompasses laws and legal principles governing the administration and regulation of government agencies (both Federal and state). Such agencies are delegated power by Congress (or in the case of a state agency, the state legislature) to act as agents for the executive. Generally, administrative agencies are created to protect a public interest rather than to vindicate private rights. Governmental agencies must act within Constitutional parameters. These and other limits have been codified into statutes such as the Federal Administrative Procedure Act (FAPA) and state analogs. The FAPA is a remedial statute designed to ensure uniformity and openness in the procedures used by federal agencies

prime objective of public health law

population health consistent with the values of social justice

US v Lopez

the Court held that Congress exceeded its commerce authority by making gun possession within a school zone a federal offense, concluding that possessing a gun within a school zone did not "substantially affect interstate commerce.