Public Health Strategy and the Police Powers of the State

The preparedness of the U.S. public health system to respond to acts of terrorism has received a great deal of attention since September 11, 2001, and especially subsequent to the anthrax attacks later that year. The use of biologic agents as a weapon has served as a catalyst to better aligning public safety and health strategies through public health law reforms. Associated with this work is the renewal of the debate over the most appropriate means to both protect the public and asssure the rights of individuals when implementing readiness strategies. A key element of the debate focuses on what is a reasonable application of state-based police powers to ensure community public health standards. The doctrine of state “police power” was adopted in early colonial America from firmly established English common law principles mandating the limitation of private rights when needed for the preservation of the common good. It was one of the powers reserved by the states with the adoption of the federal Constitution and was limited only by the Constitution's Supremacy Clause—which mandates preeminence of federal law in matters delegated to the federal government—and the individual rights protected in the subsequent Amendments.1,2 The application of police power has traditionally implied a capacity to (1) promote the public health, morals, or safety, and the general well-being of the community; (2) enact and enforce laws for the promotion of the general welfare; (3) regulate private rights in the public interest; and (4) extend measures to all great public needs.3 The application of “police powers” is not synonymous with criminal enforcement procedures; rather, this authority establishes the means by which communities may enforce civil self-protection rules. More specifically, public health police power allows the states to pass and enforce isolation and quarantine, health, and inspection laws to interrupt or prevent the spread of disease. Historically, the exercise of public health police power was enforced with strong support of the courts and restraint of police power occurred only when there was open disregard for individual rights. The abilities of states to exercise their police powers has been constrained since the 1960s by the legal and social reexamination of the balance of power between the individual, the states, and the federal government, which affects contemporary efforts to reform public health law in the face of terrorism. Given the development of the criminally based threats to health marked by bioterrorism, the relatively recent emphasis on the personal rights side of the equation should be reassessed.4 A reexamination of the legal, ideological, and social limits of police power is appropriate since increased state capacity can be crucial for first responses to terrorist threats or actions. Effective first responses may be hampered in the absence of pragmatically designed realignments of the state-individual relationship and the redesign of state public health infrastructures.5 This article begins with an historical overview of the doctrine of state police power, addresses recent limitations imposed on the implementation of public health police powers, then uses the example of the imposition of quarantine orders to illustrate the state's capability to impose such orders in exercise of its police power. Finally, it suggests changes in state public health agency governance, focus, and regulation to rebalance public and private interests.