I’ve probably seen every episode of Law & Order: SVU at least twice. Those marathons on USA draw me in every time. Police procedurals on television have familiarized a generation to the reading of Miranda Rights, but did you know there’s another type of police power? Let’s pull out our handy dandy pocket U.S. Constitution and take a look at the 10th Amendment. [You think I’m kidding? I’m not, I actually have a well-worn copy that I purchased at the National Archives as an incredibly nerdy 16 year old.]
The 10th Amendment defines the division of authority between the federal government and state governments: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”
The “reserved powers” doctrine provides states with the power to govern in areas not granted to the federal government nor prohibited to the states. There are two “reserved powers” of importance for our conversation around health care: police powers and the parens patriae power. The latter allows states to protect the interests of minors and incompetent persons, while the former permits states to protect the health and safety of communities. [One small caveat: the federal government can supersede a state’s police powers by applying the Supremacy Clause (Article VI, U.S. Constitution)].
The police powers granted by the 10th Amendment have enabled states to advance and support public health in a diverse array of areas, ranging from injury and disease prevention, sanitation, waste management, and clean water and air, to vaccination, isolation and quarantine, fluoridation of municipal water, health insurance benefits, and–of special importance to medical students–the licensure of healthcare professionals.
If states are permitted to legislate and regulate in the aforementioned areas, what is the role of the federal government in public health? The Constitution enables Congress to influence the public’s health through a variety of enumerated powers. First, Congress has the power to regulate interstate commerce, which comes in handy when dealing with environmental protections, food and drug safety, and occupational health. Second, the power to tax and spend helps the federal government raise revenue to provide health services (remember this power, it’s key to understanding the individual mandate in the Affordable Care Act!). Additional powers granted to Congress allow the federal government to protect intellectual property (patents for vaccines, medical devices, and drugs) and enforce civil rights and disability rights legislation.
The last topic of our inaugural Law & Order: Public Health episode is the 14th Amendment, which applies the Bill of Rights (the first 10 amendments of the Constitution) to the states, prohibiting the government (at any level) from infringing on certain rights and freedoms. Here are a few choice areas in which the 14th Amendment applies the Bill of Rights to individual healthcare choices and public health policies: vaccination exemptions (1st Amendment); gun violence prevention legislation (2nd Amendment); compulsory testing and screening for drugs, alcohol, and HIV (4th Amendment); and a prohibition against arbitrary or discriminatory public health regulation (5th Amendment).
Image from NPR.
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