MPH 503 Module 4 The Courts and Public Health Powers Example

Judges and Germs: How the Courts Shape Public Health Powers

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Master of Public Health Program, Aspen University

MPH 503: Health Policy and Ethical Issues in Public Health

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Judges and Germs: How the Courts Shape Public Health Powers

Courts decide whether public health actions are lawful. Their decisions shape what health officials can do, how they must do it and which level of government may act. The COVID-19 pandemic brought an unusual number of public health cases to the Supreme Court, clarifying the limits of federal agency power. This paper examines four landmark decisions, one from 1905 and three from 2021 and 2022, and draws lessons for public health practice.

The Foundation: 1905

When smallpox spread through Cambridge in 1902, the city ordered adult residents to accept vaccination or pay a five-dollar penalty. Henning Jacobson refused and challenged the law. The Supreme Court upheld it, reasoning that the liberty the Constitution protects does not include freedom from reasonable restraints imposed for the common good, while noting that public health measures must not be arbitrary or oppressive (Jacobson v. Massachusetts, 1905). The case established strong deference to state public health powers, with limits.

The Pandemic Cases

The pandemic cases differed from Jacobson in one decisive respect: they concerned federal agencies, not states, and the central question was whether Congress had given the agency the authority it claimed. The table compares them.

The Eviction Moratorium

CDC issued a nationwide eviction moratorium, reasoning that evictions would spread COVID-19 as people moved into crowded housing. The Court held that the statute CDC relied on, which authorizes measures such as inspection, fumigation and disinfection to prevent disease spread, did not give CDC power to impose a nationwide moratorium on evictions, a measure with vast economic effects (Alabama Association of Realtors v. Department of Health and Human Services, 2021). The ruling emphasized that Congress must speak clearly to authorize actions of such scope.

The Workplace Rule

The Occupational Safety and Health Administration issued an emergency rule requiring employers with 100 or more employees to require vaccination or regular testing. The Court stayed the rule, reasoning that OSHA's authority covers occupational hazards, not public health risks that exist everywhere, and that a measure affecting some 84 million workers required clear congressional authorization (National Federation of Independent Business v. Department of Labor, 2022).

The Health Care Worker Rule

On the same day, the Court allowed the Centers for Medicare & Medicaid Services to require vaccination of staff at facilities participating in Medicare and Medicaid. It reasoned that the agency's statutory authority to set conditions protecting patient health and safety covered a requirement that staff treating patients be vaccinated against a disease they could transmit (Biden v. Missouri, 2022). The different outcome turned on the fit between the rule and the agency's statutory mission.

The Major Questions Doctrine

Across these cases, the Court applied reasoning that became known as the major questions doctrine: when an agency claims power over matters of vast economic and political significance, courts expect clear authorization from Congress. For public health, this means federal agencies acting in novel, sweeping ways must point to explicit statutory authority.

State Powers After the Pandemic

The pandemic cases concerned federal agencies; state police power remains broad under Jacobson. But courts also scrutinized some state and local orders, particularly restrictions on religious gatherings, applying stricter review when rules treated religious activities less favorably than comparable secular activities. Meanwhile, many state legislatures limited health officials' emergency powers by statute. Public health law scholars have long described court review as a check that requires necessity, proportionality and fairness (Gostin & Wiley, 2016).

Lessons for Health Departments

Health departments should identify the specific statutory authority for each emergency measure, tie measures closely to disease control rather than broad social goals, document evidence and reasoning, choose the least restrictive effective option, apply rules consistently and treat religious and secular activities comparably. Working with legal counsel before issuing orders reduces the risk of losing in court.

Why It Matters for Practice

Court decisions shape which tools will be available in the next emergency. A health department that understands current doctrine can design measures likely to survive challenge and communicate their basis clearly, which also supports public trust. Losing in court can undermine both the specific measure and confidence in public health generally.

Debate

Supporters of these decisions argue they protect democratic accountability by requiring Congress, not agencies, to make major policy choices. Critics argue they limit expert agencies' ability to respond quickly to novel threats, when Congress may be slow or divided. Both views highlight the importance of clear public health statutes enacted before emergencies. Students of public health law should be able to explain both positions fairly before stating which they find stronger and why.

Religious Liberty Cases

In late 2020 the Supreme Court blocked New York's attendance caps on houses of worship in certain zones, finding that the caps treated religious services more harshly than some secular businesses. The decision did not reject public health measures outright but required that they be neutral and generally applicable, or else narrowly tailored. Health departments now compare how their orders treat worship against comparable secular gatherings before they issue them.

Preparing for Legal Challenge

Legal readiness has become part of emergency preparedness. A health department can keep a current inventory of its legal powers, template orders reviewed in advance, relationships with its attorney general's office and a system for recording the evidence behind each decision. Tabletop exercises that include lawyers help staff learn how courts will view their choices before a real emergency arrives.

Conclusion

From Jacobson in 1905 to the pandemic decisions of 2021 and 2022, courts have both empowered and limited public health authority. State police power remains broad, but federal agencies need clear statutory authorization for sweeping measures, as the eviction and workplace cases showed, while measures closely tied to an agency's mission, like the health care worker rule, can survive. Public health practitioners must understand these boundaries to act effectively and lawfully.

References

Alabama Association of Realtors v. Department of Health and Human Services, 594 U.S. 758 (2021).

Biden v. Missouri, 595 U.S. 87 (2022).

Gostin, L. O., & Wiley, L. F. (2016). Public health law: Power, duty, restraint (3rd ed.). University of California Press.

Jacobson v. Massachusetts, 197 U.S. 11 (1905).

National Federation of Independent Business v. Department of Labor, 595 U.S. 109 (2022).