Public Health Law as Administrative Law: Example Lessons

Abstract

The greatest change in legal practice over the past fifty years has been the shift from primarily private law between private parties, to public law. Public law can include the regulation of private parties, litigants (both governmental and private) challenging government policy, or the operation of agencies themselves. The jurisprudential core of public law is administrative law, which describes the relationship between the courts, government agencies, and regulated parties. Government agencies were as critical to the civil rights revolution as they have been to environmental law and, for better and worse, the development of the modern health care system. It is ironic that few law schools require all students to take a course in administrative law, and that at many schools a student may graduate with few or no public law courses on his or her transcript.

Public health law was the first administrative law. The colonies were ravaged by communicable diseases such as cholera, yellow fever, and smallpox. Early state governments carried out Draconian measures to control these diseases. The early and middle 1800s saw extensive state regulation of all aspects of life, including the core areas of public health and safety. Regulation of food and water, sanitation, and housing conditions, combined with communicable disease control measures such as mandatory vaccination laws and isolation of communicable disease carriers, raised the life expectancy in cities such as Boston by more than fifty year between 1850 and 2004. Modern environmental law, the heart of many administrative law texts, is an extension of traditional public health law.

For the past twenty-five years, public health law, as taught in law schools, has mostly focused on a very narrow part of public health practice: individual liberties issues in health care, usually focusing on the HIV/AIDS epidemic. Students who take these courses see only a small part of public health practice, missing the close linkage between public health law and environmental law on federal and state levels, and missing almost all of the state and local government law that shapes most public health practice. The students see public health law as individual liberties law, with the primary example being laws enacted to prevent public health authorities from identifying and tracking cases of HIV infection and taking disease control measures to limit the spread of HIV. They learn little, if anything, of the public health consequences of these policies, such as fostering the spread of HIV in the female partners of HIV infected men, especially in minority communities. More fundamentally, students in these courses come to see public health departments as social welfare agencies that should be concerned with delivering social services and that should not interfere with individual freedom. This does not provide a comprehensive model of public health law that can also address issues such as obesity, smoking in private, and the economic rights that must be balanced in many environmental regulations.

Public health law taught as administrative law embeds public health law in a broad and well-understood jurisprudential framework. This gives students a much broader view of public health law jurisprudence, and enables better understanding of the full spectrum of public health law and public health law practice. For students taking administrative law courses, public health law provides problems that are easier to understand and that are more compelling than the Interstate Commerce Commission and Federal Energy Regulatory Commission cases that are the bane of many administrative law students. Public health law is administrative law on a more human scale and introduces students to the world of state and local administrative law.

Keywords: public health, public health law, administrative law, HIV. commerce clause, 4th amendment, fourth amendment, dormant commerce clause, police power, individual liberties, quarantine, epidemic, plague, teaching materials, lessons

JEL Classification: I18