Medical Regulation and the Doctrine of Police Powers

Have you ever talked to a four year old about something they either couldn’t or didn’t want to understand? Remember their sing-song reply, “Why?”

Their persistence in responding to every explanation with that question could drive anyone to side with Sartre – “Hell is other people”

Not that I’ve had any four year olds asking me why we have medical regulation though some critics of our system do seem to have the intellectual willfulness of a child. For the benefit of those interested, I’ve considered the question (“Why do we have medical regulation?”) from a historical/legal perspective.

Many of us understand the nature of the 10th Amendment; and if we thought about it, we’d recognize that a state granting a medical license to a physician rather than the federal government doing so seems like a concrete example of that amendment. So medical regulation is all about the 10th amendment, right? Not entirely.

What we tend to forget is an accompanying legal concept—the notion of “police powers” held and exercised by the individual states. The meaning and implications of both the 10th Amendment and this concept evolved through a series of court cases in the 19th century. Chief Justice John Marshall explicitly used the term in Brown v. Maryland (1827) though, interestingly enough, the phrase “police power” does not appear in the Constitution and did not enter common parlance in legal circles until the 1880s.

Mention the phrase “police powers” to someone on the street today and they’ll likely latch onto the word police and say this must have something to do with law enforcement. This misconception obscures the Founders’ understanding and use of the concept. Revolutionary era leaders understood the term “police” as synonymous with the public polity, the community, civil administration and public order.

The concept of police powers evolved as a bulwark against federal incursion into state authority and decision-making.  A series of important cases during John Marshall’s tenure as Chief Justice of the U.S. Supreme Court confirmed this, e.g., McCullough v. Maryland (1819) and Gibbon v. Ogden (1824). In Gibbon, Marshall famously expanded on the division of federal and states powers with a tautology: “Enumeration presupposes something not enumerated.” In other words, the fact that the Constitution lists specific powers for federal government—and those powers are limited to the things listed—means there must be other powers that are not listed which rest with the states.


What might these be?  Marshall identified “inspection laws, quarantine law, [and] health laws” as examples of legislation “exercised by the States themselves.” Three years later Marshall introduced the term “police power” explicitly in Brown v. Maryland, calling it an authority that “unquestionably remains…with the States.”

While Gibbon dealt with interstate maritime commerce, it is not surprising that Marshall looked to a parallel area (health) as an example of state powers and their scope of authority. Colonial and later state governments during the early republic were accustomed to exercising a de facto regulatory function in the realm of public health. The population centers situated along transportation routes on rivers and coastal areas meant this country experienced frequent outbreaks and recurrences of epidemic diseases such as yellow fever, typhoid, cholera. A major yellow fever outbreak in Philadelphia and New York (1793-98) and recurrent cholera epidemics (1832, 1849, 1866) meant that local and state officials were accustomed to enacting emergency quarantine and other sanitary measures. Local authorities viewed these measures as justifiable actions designed to secure the public health by mitigating the effects of contagious disease.

The practical experience of local and state officials in dealing with health crises should not be overlooked when considering the advent of medical licensing laws and examining boards in the post-Civil War era. While many factors contributed to the rebirth of medical licensing in the second half of the nineteenth century, the experiences of state and local officials in dealing with health crises made it easier for the courts to view health matters as appropriate matters for state authority under the doctrine of police powers…and thus, an area that can and should be regulated.

Even before the seminal court case upholding medical regulation (Dent v. West Virginia, 1889), the U.S. Supreme Court recognized the practical and societal need for laws and regulations to guard the general public interest against the “few who…[would] imperil the peace and security of the many.” (Mugler v. Kansas, 1887) This would be true whether the “few” were quack physicians or, in the case of Mugler, whiskey peddlers. The police powers doctrine meant the state could enact “measures…appropriate or needful for the protection of the public morals, the public health or the public safety.” (italics added)

So if you find yourself sitting among physician colleagues and talking in general terms about medical regulation, feel free to impress them with your explanation of police powers and the 10th amendment…and if you can inject the word “tautology” into the explanation, award yourself double bonus points.

The views expressed are those of the author and not those of the FSMB.


Santiago Legarre, “The Historical Background of the Police Power,” Journal of Constitutional Law (February 2007): 778, 782.

Gibbon v. Ogden, 22 U.S. (9 Wheat.) 1, 203 (1824).

Brown v. Maryland, 25 U.S. (12 Wheat.) 419, 443 (1827)

Edward P. Richards, “The Police Power and the Regulation of Medical Practice: A Historical Review and Guide for Medical Licensing Board Regulation of Physicians in ERISA-Qualified Managed Care Organizations,” Annals of Health Law 8:1 (1999): 203-204.

Charles E. Rosenberg, The Cholera Years (Chicago: University of Chicago Press, 1962) and Owen Whooley, Knowledge in the Time of Cholera: The Struggle over American Medicine in the Nineteenth Century (Chicago: University of Chicago Press, 2013) address quarantine measures


A Beautiful Friendship

Several of my recent tweets (@davearlingtontx) featured the National Board of Medical Examiners or NBME. I have been fortunate in my professional career at the Federation of State Medical Boards (FSMB) to have spent two decades working with colleagues at the NBME on our jointly-sponsored program, the United States Medical Licensing Examination® (USMLE®).

In thinking about the FSMB-NBME relationship I am reminded of the last line from the movie Casablanca. As Humphrey Bogart and Claude Rains stroll across a misty airport tarmac, Bogie says “Louis, I think this is the beginning of a beautiful friendship.”

FSMB and NBME joint mtg in 1990

And while I don’t suppose any of the key figures from the earliest days of either organization said it quite so starkly, surviving evidence strongly suggests that friendship and mutual respect characterized the relationship then and now. This manifested itself with the FSMB’s early support of the NBME and the launch of its certifying examination in 1916 and later when the Federation turned to the National Board in the 1960s when the two collaborated on a national examination specifically for medical licensure, the Federation Licensing Examination or FLEX. Personal connections were at the heart of the relationship with a key figure in both organization’s early years, Walter Bierring, serving on governance of both executive boards; and this deepened with “cross pollination” that witnessed nearly three dozen individuals serving on the governance of both organizations. Today, the relationship centers especially around the deep workings of the two organizations around the USMLE. (A more detailed account of the FSMB-NBME relationship appeared in the Journal of Medical Regulation, vol. 100, no. 4, 2014, pp. 17-20 at

I share all this because of an observation I remember hearing from a former President at the NBME. Reflecting on the close working relationship of the two organizations spanning so many decades, he marveled at how unique this felt, particularly as such a relationship seemed wholly unimaginable in the for-profit world. I think he was right. In a for-profit environment of bottom line revenues, shareholder returns and cutthroat competition, this kind of relationship simply doesn’t exist—and if it did, it wouldn’t last. One party would eventually seek to leverage a temporary or strategic advantage in the relationship to force either a merger or an ouster of the other party. One of the beauties of the FSMB-NBME relationship in support of the USMLE is the common use of pronouns like “us,” “our” and “we” by staff at both organizations working on the program.

In a way, this speaks to the fundamentally different nature of not-for-profit organizations (NPOs)—with their explicit mission usually pertaining to a specific societal benefit—which manifests an organizational culture more amenable to the kind of collaborative endeavor and relationship such as that between FSMB and NBME. This relationship has benefited medical regulators for more nearly fifty years.

In the early to mid-1960s, two trends in the functioning of state medical boards shifted in noticeably opposite directions. At that time, physician discipline assumed an increasingly prominent position in the work of state medical boards—one requiring not only a paradigm shift in medical regulators’ views of their own role but also a marked increase in the direct resources (both staff, time and intellectual focus) directed to this function. At the same time, medical boards’ recognized that the science of assessment had outstripped their capacity to develop and deliver sufficiently high quality examinations for medical license based upon the limited expertise and resources available to most boards.

This recognition led directly to the creation of the FLEX, the first large-scale, formal collaborative endeavor between the FSMB and the NBME. The relationship that deepened over time between the two organizations in their efforts on FLEX and later USMLE provided a direct benefit to the medical regulatory community. The involvement of the FSMB in this relationship meant that the priorities and interests of the medical regulatory community featured directly and prominently in the national programs for the assessment of physicians. The involvement of the NBME in this relationship brought professional and technical expertise to one of the most visible and fundamental elements in the medical regulatory process.  The success of this relationship through these assessment programs allowed medical boards to more effectively meet public expectations demanding greater accountability and transparency in their disciplinary function while simultaneously improving the boards’ collective role in assessment.

It is worth noting that success was never guaranteed. I have personally heard anecdotes from long-tenured staff at the NBME about tensions that periodically arose between medical educators and medical regulators working on various committees supporting the FLEX and later USMLE. These anecdotes date to activities that occurred twenty and sometimes thirty years ago when strong personalities tackling potentially divisive issues might have led some to wonder about the viability of the long-term working relationship between FSMB and NBME. The relationship survived (and thrives today) due in part to the alignment of the mission, vision and values of the two organizations. But just as important are human relationships tying the two organizations together. The glue that preserved these working relationships were the staff at the two organizations and the commitment of senior leadership and governance to nurture an effective long-term relationship.

We may think in generalized terms of organizations and boards but it is individuals that comprise these entities. These broader relationships flourish or suffer depending upon the inter-personal element that exists at the level of individuals from two different organizations working collaboratively. The ultimate success in fostering trust and mutual respect in the organizations’ working relationship stems directly from the daily activities of colleagues working toward a shared purpose serving both organizations’ mission and, in doing so, the interests of medical regulation and society at large.

So here’s to my colleagues past and present who have created and maintained this unique, vital relationship: Hank, Don, Jim, Peter, Gerry, Kate, Amy, Susan, Frances, Janet, Suzanne, Debbie, Michael, Shelley, Randy, John and so many others.

The views expressed in this blog are solely those of the author and not that of the FSMB