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BUSINESS OF
MEDICINE
A legal
perspective on
public health
By Joseph B. Topinka, JD, MBA, MHA, and Dana A. Forgione, PhD
In light of recent events surrounding the Ebola virus out- tional speed limits — local-looking matters controlled or influ-
break, our communities need to have a candid discussion about enced by the federal government. This also has been a source of
infectious diseases, public health emergencies, and how our sys- tension under the concept of federalism.
tem of laws addresses these important issues. Physicians, clini-
cians, allied health professionals, health system leaders, business THE MIX OF FEDERALISM
leaders, community leaders and, yes, even lawyers have an im- Statutes and regulations are outgrowths of the U.S. Constitu-
portant voice in this discussion. Hopefully, we will learn from
the past, and be better prepared for a future of unexpected pub- tion and the respective state constitutions, such as in Texas with
lic health challenges. the Communicable Disease Prevention and Control Act, and
Chapter 121 of the Texas Health and Safety Code. The several
U.S. CONSTITUTION constitutions in the United States give the U.S. Congress and the
There is no mention of public health in the U.S. Constitution. various state legislatures the power to pass laws in the form of
statutes. Then federal and state agencies write regulations to im-
As a result, public health has normally been the primary respon- plement the statutes. These statutes can impact public health at
sibility of the state and local governments. Despite that responsi- the federal, state and local levels.
bility, the federal government has often asserted its authority over
public health-related activities through its interstate commerce, For example, Congress passed statutes that created the U.S.
taxation and spending powers under Article I, Section 8, of the Public Health Services with its authorities and powers. It also cre-
U.S. Constitution. ated regulatory agencies like the Food and Drug Administration
(FDA) or the Occupational Safety and Health Administration
The U.S. Constitution is the source of all legal authority for the (OSHA), and non-regulatory agencies like the Centers for Disease
federal government and our state governments. Yet, each state, such Control and Prevention (CDC). The Texas Legislature passed the
as Texas, has its own constitution and often, subordinate levels of aforementioned Communicable Disease Prevention and Control
government have their own legal sources of governance, such as Act which created powers to respond to disease outbreaks. Like
charters or statutes. Since they all differ, their style of governance other states, Texas further delegated those powers between the
may be different, yet they all still fall under the U.S. Constitution. Commissioner of Health in the Texas Department of State Health
The U.S. Constitution is the supreme law of the land, except that Services (DSHS) and the local health authorities (HAs). As an ex-
the 10th Amendment specifies, “The powers not delegated to the ample, the director of public health for the City of San Antonio
United Sates by the Constitution, nor prohibited by it to the also serves as the chief executive officer of the Metropolitan Health
States, are reserved to the States respectively, or to the people.” District and the Health Authority for Bexar County. Thus, there
That is, if the U.S. Constitution does not contain a provision deal- is a mix of federal, state and local laws and regulations.
ing with a certain matter, that matter is reserved to the states, and
ultimately to the people. Those powers are often referred to as state Law in our system is based on English Common Law, which
police powers. They explain such policies as tobacco taxes and na- by its nature is historical in terms of relying on past precedents as
the basis for current and future judicial rulings. Local, state and
30 San Antonio Medicine • February 2015
