Duties and Powers
The United States Constitution provides the framework for the distribution of governmental power. It divides power between the federal government and the states (federalism), separates power among the three branches of government (“separation of powers”), and limits governmental power over individuals to protect a sphere of liberty (see Figure 10). Federal and state public health agencies carry out public health functions within these constitutional boundaries. Governmental actors must use their power to protect and promote public health according to the constitutional design and within the scope of legislative mandates. When disputes regarding governmental powers arise, courts often determine the lawfulness of particular public health interventions.
In thinking about government intervention to promote the common good, at least three important questions should be asked: (1) Does government have a duty to protect the public's health and safety? (2) What power does government have to regulate in the name of public health? (3) What limits exist in the exercise of public health powers? These three issues — governmental duties, powers, and limits — are central to understanding the role of public health authorities in the constitutional design. The readings in this chapter examine government's duty and power and also explore a corollary question: Which government — federal or state — may act to avert a health threat? The next chapter evaluates constitutional restraints on the exercise of public health power.