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.

john-marshall-9400148-1-402

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.

Sources

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

 

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