Setting expectations for the federal role in public health emergencies

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Author: Eric D. Hargan
Date: Spring 2008
From: Journal of Law, Medicine & Ethics(Vol. 36, Issue 1)
Publisher: Sage Publications, Inc.
Document Type: Article
Length: 3,528 words

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I would like to begin by discussing the legal and administrative framework of the role of the federal government in public health. At the heart of it is, of course, the Constitution. At the Department of Health and Human Services (HHS) we depend, as does much of the federal government, on our power to regulate interstate commerce. Since the Supreme Court in 1942 removed essentially any restraint from the meaning of interstate commerce in Wickard v. Filburn, (1) the federal government has been regulating with wide latitude, in spite of small and, arguably, equivocal reverses in recent years. However, even though the Supreme Court no longer provides any real constitutional check on the federal government's interstate commerce power, some other restraints persist. For example, many parts of the health system have traditionally been deemed inherently state functions, such as the licensing and disciplining of doctors, nurses, and pharmacists, as well as the practice of medicine itself. The federal government has hesitated to tread across these areas, for fear of disturbing long-established patterns of regulation that work effectively at the state level.

The constitutional right of citizen groups and businesses to petition the government is another check on the federal government. For example, even during the potential outbreak of monkeypox in 2003, for which we needed to prevent the distribution and sale of prairie dogs, in crafting the ban we needed to work carefully around the prairie dog lobby's potential concerns. In fact, there is virtually no group in America that is not organized and striving to be heard by the government. This is, of course, as it should be, even if it sometimes makes life uncomfortable for those of us representing the federal government.

While the 10th Amendment is unfortunately forgotten by many, we at the Department of Health and Human Services are bound to carry out only that which is delegated to us. We do not have a plenary power to regulate. We cannot just establish power for ourselves, and we have to defer to the states when they have a system in place. For example, HHS does not generally run hospitals, administer vaccines, provide physicians or nurses, or establish quarantines. In fact, most of my presentation focuses on what powers we do not possess.

Section 247d of the U.S. Code and Section 319 of the Public Health Service Act gives the Secretary of Health and Human Services a great deal of authority in the event of a public health emergency. It says:

If the Secretary determines, after consultation with such public health officials as may be necessary, that--

(1) a disease or disorder presents a public health emergency; or

(2) a 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, including making grants, providing awards for expenses, and entering into contracts and conducting and supporting investigations into the cause, treatment, or prevention of a disease or disorder as...

Source Citation

Source Citation
Hargan, Eric D. "Setting expectations for the federal role in public health emergencies." Journal of Law, Medicine & Ethics, vol. 36, no. 1, Spring 2008, p. S8+. Accessed 26 Nov. 2020.
  

Gale Document Number: GALE|A176480614