The document discusses the complex legal infrastructure for public health in the United States across federal, state, and local levels of government. While states have the primary legal responsibility for public health, the federal government has grown in influence through powers like the Commerce Clause, funding provided by taxing authority, and agenda-setting on national issues. Local governments are dependent on and limited by state authority based on Dillon's Rule. Overall, while legal authority is dispersed, informal powers from funding, politics, and national prioritization have increased the federal government's dominance in shaping public health policy despite public health primarily being implemented locally.

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Government Power in Public Health: Law vs Reality
Michelle Dunn
University of Maryland University College

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Government Power in Public Health: Law vs Reality
The legal infrastructure for the promotion of public health in the United States is
dispersed among three levels of government. Constitutional law is the primary source of power
at the federal level. Firstly, the Supremacy Clause (U.S. Const, art. VI, cl. 2) asserts federal
primacy when state and federal laws conflict (Lawson, 2012). Secondly, the Commerce Clause
(U.S. Const, art. I, § 8, cl.3) upholds federal authority concerning matters of commerce such as
related to disease transmission (Ricketts, 2009). The Constitution asserts that the federal
government is obligated to “promote the general welfare” (U.S. Const., preamble), but it does
not mention “health” (Turnock, 2016), hence the bulk of legal public health powers resides with
the state via the Tenth Amendment delegating to states all powers not explicitly given to the
federal government in the Constitution (U.S. Const., amend. X).
At the local level, legal authority is created by state government delegation. Health and
political science academics Julia Costrich and Dana Patton cite “Dillon’s Rule” to explain the
legal supremacy of state authority over municipal with regard to public health law (2012). This
legal concept was written by an Iowan federal judge in the late 1800s who asserted that
municipal powers are limited to those expressly given to them by state constitutions as opposed
to the “Home Rule” interpretation asserting that municipalities hold any legal powers not
expressly denied by state legislation (Rincker, 2012) (a similar concept to the previously noted
interpretation of the Constitution’s Supremacy Clause). In either case, it is clear that local
jurisdiction is dependent on and limited by state authority.
Health policy and social medicine professor, Thomas Ricketts asserts that states hold the
principle responsibility for ensuring the public health of the country, and that despite the
potential for conflict inherent in the legal dispersion of authority among the levels of

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government, federal and state efforts are generally collaborative, often with parallel agencies
(Ricketts, 2009). A subtler reading of Ricketts, however, suggests that a thorough assessment of
the balance of power requires an understanding that statutory authority is not the sole source of
power resulting in outcomes. He explains that more expansive federal funding and resources
provides essential support for the implementation of state efforts (Ricketts, 2009).
University of Chicago professor Bernard Turnock (2016) puts forth two events in the first
half of the twentieth century that tipped the balance of power to federal influence over public
health. The first of these events was the passage of the constitutional amendment permitting the
federal government to levy income tax (U.S. Const., amend. XVI.) thereby providing a largess of
public funding (Turnock, 2016). Without such a source of funding, the nation would not have the
infrastructure expansion supported by the Hill-Burton Act and adequate funding for such
agencies as the Centers for Disease Control and National Institute of Health. Additionally, it is
under this authority to tax and spend that the Supreme Court upheld the individual health
insurance mandate of the Affordable Care Act (Parmet & Jacobson, 2014). The second
influential event to which Turnock refers was the Great Depression whose catastrophic economic
effects molded public and political opinion toward a willingness to accept federal government
accountability for public needs (Turnock, 2016).
In their examination of the legal infrastructure of local public health agencies and their
effects on premature mortality, Costrich and Patton summarize this complexity of power, stating
that “the text of a statute or regulation alone cannot account for the full effect of the law on
population health (2012, p. 1936). They concluded that increased local tax revenue did not result
in improved outcomes in contrast to comparative studies demonstrating that increased overall

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funding did, pointing to the limited contribution of local funding to public health nationwide
(Costrich & Patton, 2012).
While the influence of finance is obvious, there is an underlying power of coercion in
top-down funding, depicted by public health law professor, Lawrence Gostin, as a tax and spend
model of authority through which the funding party may impart contingencies on resource
allocation. Gostin cites the specific example of federal highway funds being granted on the
condition that states set a minimum drinking age (2002). While this example reflects an agenda
promoting an important public health outcome, feasibly there are situations in which federal
agendas may not correlate with regional public health priorities. In an extensive policy diffusion
analysis, public policy professors Clouser McCann, Shipan, and Volden demonstrated notable
federal to state “top-down” policy effects beyond those related to financing by way of federal
legislative proceedings introducing and prioritizing agendas at the national level (2015).
All of these assessments regarding the differences of public health influence among the
levels of government include efforts to not discount the importance of local advocacy and action,
echoing former Assistant Secretary of Health Koh’s assertion that “all public health is local”
(Pertshuk et al, 2012, PG. 0), yet they suggest a preponderance of evidence supporting a primacy
in the power of more extensive federal resources and influences outside those directly bestowed
by law. In addition to this economic and political power, a singular source of federal power, the
authority to tax and spend, is the handle by which the federal government now seizes the
possibility of universal health care. The argument for the dominance of federal authority in
public health law is consistent with the country’s federalist model of government, and the
informal powers arising from economics and politics is consistent with the notion that all efforts
in public health rely on a complex network of interconnectivity and collaboration.

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References
Clouser McCann, P. J., Shipan, C. R., & Volden, C. (2015). Top-down federalism: State policy
responses to national government discussions. Publius: The Journal of Federalism, 45(4),
495-525. doi:10.1093/publius/pjv013
Costich, J. F., & Patton, D. J. (2012). Local legal infrastructure and population health. American
Journal of Public Health, 102(10), 1936-1941. doi:10.2105/AJPH.2012.300656
Gostin, L. O. (2002). Public health law: A renaissance. Journal of Law, Medicine & Ethics,
30(2), 136-140. Retrieved from
http://ezproxy.umuc.edu/login?url=http://search.ebscohost.com/login.aspx?direct=true&db=
i3h&AN=6821890&site=eds-live&scope=site
Lawson, G. (2012). Supremacy clause. In D. F. Forte, & M. Spalding (Eds.), The heritage guide
to the constitution (2nd ed., pp. 291-294). Washington, D.C.: Regnery Publishing.
Retrieved from http://www.heritage.org/constitution/#!/articles/6/essays/133/supremacy-
clause
Parmet, W. E., & Jacobson, P. D. (2014). The courts and public health: Caught in a pincer
movement. American Journal of Public Health, 104(3), 392-397.
doi:10.2105/AJPH.2013.301738
Pertschuk, M., Pomeranz, J. L., Aoki, J. R., Larkin, M. A., & Paloma, M. (2012). Assessing the
impact of federal and state preemption in public health: A framework for decision makers.
Journal of Public Health Management Practice, 0(0), 0-6.
doi:10.1097/PHH.0b013e3182582a57
Ricketts, T.C. (2009). In Scutchfield, F.D., & Keck, C.W. (Ed.), Principles of public health
practice (3rd ed., pp. 86-132). Clifton Park, NY: Delmar, Cengage Learning.
Rincker, C. (2012). Dillon's rule vs. home rule (and why it matters). Retrieved from
http://rinckerlaw.com/dillons-rule-vs-home-rule-states-and-why-it-matters/

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Turnock, B. J. (2016). Law, government, and public health. In Essentials of public health (3rd
ed., pp. 77-104). Burlington, MA: Jones and Bartlett.
U.S. Const., amend. X.
U.S. Const., amend. XIV.
U.S. Const., art. VI, cl. 2.
U.S. Const, art. I, § 8, cl.3.
U.S. Const., preamble.

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