The United States Congress may act only pursuant to those powers enumerated in the United States Constitution. There is no express constitutional authority for federal or state governments to engage in public health issues. Implicit authority for federal intervention is found under the Commerce Clause, General Welfare Clause, and Necessary and Proper Clause of the United States Constitution. The District of Columbia’s (the District) authority to protect public health comes from the doctrine of police power derived from the Tenth Amendment to the United States Constitution and, historically, under judicial interpretation of case law. While the United States Constitution gives the United States Congress exclusive jurisdiction over the District, the District of Columbia Home Rule Act delegates certain authority to District government, including issues with public health significance.
3.2 Source of Federal Public Health Authority
3.2.1 Explicit Constitutional Authority
There is nothing explicit in the United States Constitution that gives the federal government authority to intercede in public health matters.
3.2.2 Implicit Constitutional Authority
- The Commerce Clause – The Commerce Clause gives the United States Congress the power to regulate commerce with foreign nations, between the states, and with Tribal nations. U.S. Const. art. I, § 8, cl. 3. As the United States Constitution does not define what is meant by “commerce,” the United States Supreme Court has considerable latitude to decide whether legislation falls within the federal government’s authority to regulate under this clause.
The United State Congress has relied upon the Commerce Clause to enact a wide range of laws with public health implications, including food safety initiatives by the Food and Drug Administration (FDA), United States Department of Agriculture (USDA), and the Environmental Protection Agency (EPA), federal quarantine laws administered by the Centers for Disease Control and Prevention (CDC), as well as occupational safety provisions promulgated by the United States Department of Labor (DOL).
- The General Welfare Clause – The General Welfare Clause allows the United States Congress to levy and collect taxes for the general welfare of the United States. U.S. Const. art. I, § 8, cl. 1. The United States Congress uses this power to tax behaviors that have potentially harmful effects, such as cigarette smoking, and rewards behaviors that it seeks to promote, like giving individuals tax credits for purchasing health insurance.
- The Necessary and Proper Clause – In general, the Necessary and Proper Clause enables the United States Congress to select means reasonably adapted to effectuate its powers. U.S. Const. art. I, § 8, cl. 18. In United States v. Comstock, 560 U.S. 126 (2010), the United States Supreme Court examined the interplay between the Commerce Clause, the Necessary and Proper Clause, and the ability of the federal government to isolate infectious individuals. In part, the issue before the court was whether the federal government could civilly commit certain sex offenders after they had completed their federal prison sentences. The court recognized that, if a federal prisoner is infected with a communicable disease that could be a threat to others, it may be “necessary and proper” for the federal government to take action even if there is not an interstate threat, such as an epidemic that would cross state borders. Comstock, 560 U.S. at 142 (dictum).
3.3 Source of State Public Health Authority
3.3.1 Explicit Constitutional Authority
There is nothing explicit in the United States Constitution that gives the District of Columbia or any state the authority to intercede in public health matters.
3.3.2 Implicit Constitutional Authority
The Tenth Amendment to the United States Constitution reserves to the states those powers not specifically delegated to the federal government. U.S. Const. amend. X.
3.3.3 The Doctrine of Police Power
The doctrine of “police power” emanates from English common law principles that allow state governments to limit certain individual and private rights when such limitation is necessary for the preservation of the common good. Case law has extended this principle to public health, and the United States Supreme Court has acknowledged that the government has authority to protect the public’s safety, health, and morals by restraining the use of liberty and property. See Medtronic, Inc. v. Lohr, 518 U.S. 470, 475 (1996).
In Huffman v. D.C., the District of Columbia Court of Appeals (Court of Appeals) upheld, as a reasonable exercise of police power, a statute that authorized the District to issue regulations to prevent, investigate, control, and report communicable disease and permitted the detainment of infected individuals. Huffman v. D.C., 39 A.2d 558, 561 (D.C. 1944).
The boundaries of police power are not limitless. When exercising its police powers, the state must be acting in the interest of all of its citizenry (as opposed to a particular class of people), the methods exercised must be reasonably designed to prevent or ameliorate a threat, the means used must be reasonably necessary to accomplish its goal, and the methods cannot be unduly oppressive. See Lawton v. Steele, 152 U.S. 133, 137 (1894); see also Jacobson v. Massachusetts, 197 U.S. 11, 25 (1905).
3.3.4 States Have Historically Assumed a Primary Role in Public Health Issues
In Jacobson v. Massachusetts, the plaintiff objected to a smallpox vaccine that the Commonwealth of Massachusetts required for adults. The United States Supreme Court upheld the constitutionally of the mandatory vaccine, and emphasized that “[t]he safety and the health of the people . . . [are] for [the] Commonwealth to guard and protect. They are matters that do not ordinarily concern the National Government.” Jacobson, 197 U.S. at 38.
3.4 The District of Columbia Home Rule
The Constitution mandates that the United States Congress has exclusive jurisdiction over the District. U.S. Const. art. I, § 8, cl. 17. However, under the District of Columbia Home Rule Act (D.C. Official Code § 1-201.01 et seq.), the United States Congress has delegated some of its authority to the local government. Some of the areas in which the District has authority to intercede in matters with public health implications include the following:
- Communicable disease reporting and investigation;
- Quarantine of individuals or groups of individuals who may be affected with communicable disease;
- Isolation of individuals or groups of individuals who are known to be affected with communicable disease;
- Compulsory medical examination of individuals or groups of individuals;
- Compulsory medical treatment of individuals or groups of individuals;
- Declaring emergencies;
- Inspecting, seizing, and destroying property; and
- Domestic animals that cause disease.
All legislation proposed by the District becomes law unless it is vetoed by the United States Congress. See D.C. Official Code § 1-206.02. Additionally, the United States Congress retains authority over the District’s Budget. D.C. Official Code § 1-206.03.
Generally, disasters and emergencies with public health implications are first addressed by local health departments. Exceptions to this premise are made when disasters occur on federal property (such as the Alfred P. Murrah Federal Building during the Oklahoma City bombing or military bases), or when the emergency is precipitated by acts of war or terrorism. In those matters, the federal government has primary jurisdiction. In the event of a public health crisis like Hurricane Katrina or Superstorm Sandy, federal, state, and local agencies would likely be required to work collaboratively.
3.5 Civil Rule 57
Under the District of Columbia Superior Court’s (Superior Court) rules of civil procedure, a party may seek a declaratory judgment to determine present and/or future rights. Super. Ct. Civ. R. 57. Declaratory relief is appropriate if a party needs judicial guidance prior to taking future action rather than adjudicating a party’s past conduct. Granting declaratory relief is within the court’s discretion and is not mandatory. Wilton v. Seven Falls Co., 515 U.S. 277, 288 (1995).
Any party may request a trial by jury on the motion for declaratory judgment. Super. Ct. Civ. R. 38, 39, 57. The party seeking the jury trial must serve the other parties with a written copy of the jury request. The jury request may be made any time after the commencement of the action but not later than 10 days after service of the last pleading. Super. Ct. Civ. R. 38(b). The court may also order a “speedy hearing” on a party’s motion for declaratory judgment. Super. Ct. Civ. R. 57.
In the context of a public health emergency, it is foreseeable that a party could seek declaratory relief to determine whether certain information relating to the outbreak or emergency should be disclosed or to determine the appropriateness of a detention facility proposed by the Department of Health (DC Health) Director. Moreover, a party might seek a declaratory judgment to revoke a declaration of emergency or public health emergency issued by the Mayor or emergency regulations adopted by the Council of the District of Columbia (D.C. Council).