Public 8

153

Thus far, we have primarily discussed the roles of legislatures and courts at the state and federal level. But more often than not, other govern- ment actors play a prominent role in public health governance. Local governments have long exercised primary responsibility for protecting the public’s health. And administrative agencies at the local, state, and federal levels (including public health agencies as well as agencies focused on other sectors like environmental protection, transportation, and agriculture) off er expertise and fl exibility, which are integral to public health governance. At a time when many public health measures that might be adopted through state or federal legislation are facing stiff political opposition, local governments and agencies are fi lling the gaps. Because the authority of these entities is delegated, however, their actions are subject to particular legal challenges. Understanding the scope of agency and local government public health powers is thus a complex and important aspect of public health law.

This chapter fi rst examines the rise of public health agencies at the local, state, and federal levels. After introducing state and local public health agencies and examining the increasing role of federal agencies in public health, we delve more deeply into the two areas of law that govern their authority: administrative law and local government law. We pro- vide an overview of administrative law as it relates to public health: legislative delegation of authority, restraints on agency power, and the processes of rulemaking, adjudication, and enforcement. We emphasize

chapter five

Public Health Governance Democracy and Delegation

The reason we have government in the fi rst place is to solve problems collectively we can’t solve individually.

— Thomas Farley, The Weight of the Nation, 2012

C o p y r i g h t 2 0 1 6 . U n i v e r s i t y o f C a l i f o r n i a P r e s s .

A l l r i g h t s r e s e r v e d . M a y n o t b e r e p r o d u c e d i n a n y f o r m w i t h o u t p e r m i s s i o n f r o m t h e p u b l i s h e r , e x c e p t f a i r u s e s p e r m i t t e d u n d e r U . S . o r a p p l i c a b l e c o p y r i g h t l a w .

EBSCO Publishing : eBook Collection (EBSCOhost) - printed on 10/6/2022 8:06 AM via UNIVERSITY OF MARYLAND GLOBAL CAMPUS AN: 1134865 ; Lawrence O. Gostin, Lindsay F. Wiley.; Public Health Law : Power, Duty, Restraint Account: s4264928.main.eds

154 | Legal Foundations of Public Health

federal administrative law, but we also touch on matters of state-level administrative law, which governs the state and local administrative agencies where a great deal of public health decision making occurs. We then turn to local government law as it relates to public health: the del- egation of authority from the state to localities and consequent restraints on local power. Local government law dictates the authority and respon- sibilities of local agencies, as well as that of local legislative bodies (e.g., city councils) and executives (e.g., mayors). We conclude with a discus- sion of the diffi cult balance between principles of open, transparent, and participatory governance and the need for expertise-driven, effi cient, and effi cacious government responses to pressing public health problems.

public health agencies and the rise of the administrative state The success or failure of any government in the fi nal analysis must be measured by the well-being of its citizens. Nothing can be more important to a state than its public health; the state’s paramount concern should be the health of its people.

— Franklin Delano Roosevelt, Public Health in New York State, 1932

Historically, public health has been viewed as a quintessentially local con- cern. Public health agencies were fi rst created at the municipal level, and local agencies continue to play a crucial role in public health governance. Over time, however, public health matters that transcend jurisdictional borders have necessitated a centralized response at the state, federal, or even international level. The state and federal presence in public health has thus expanded rapidly over the past century or so. This section describes the evolution of public health agencies at each level of government.

Local Public Health Agencies and Boards of Health

During the early nineteenth century, public health administration was simple in organization and limited in scope. Only a few major cities had established formal boards of health (the fi rst local health departments were established in Baltimore in 1793, Philadelphia in 1794, and in Mas- sachusetts’s municipalities in the late 1790s), and public health offi cials lacked formal qualifi cations.1 Eventually, the burgeoning social prob- lems of nineteenth-century industrial cities convinced legislatures to form more elaborate and professional public health administrations within municipal government.2 For example, the Board of Health established in

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Public Health Governance | 155

New York City in 1866 comprised experts in medicine and public health and was granted extensive power to adopt and implement regulations relating to the preservation of the public’s health.3 State legislatures granted local boards of health the power to enact detailed administrative regulations, inspect businesses and property to ensure compliance, and adjudicate and sanction violations of regulatory standards.4

By the early twentieth century, most major cities had established public health agencies, many had established boards of health, and county and rural health departments began to emerge.5 Despite advances in public health administration, however, campaigners still noted prob- lems of patronage, ineffi ciency, and unprofessionalism in state and local health agencies into the twentieth century. In 1908, Charles Chapin, the superintendent of health for Providence, Rhode Island, pressed for a corps of public health offi cials who were highly qualifi ed and trained, with adequate compensation and opportunities for career advance- ment.6 Challenges persist with respect to public health professionalism to this day: building leadership capacity in public health, fostering con- structive engagement with elected offi cials, and ensuring continuity in spite of the short tenure of politically appointed offi cials.7

According to data collected by the National Association of County and City Health Offi cials (NACCHO), modern local health departments per- form a wide range of functions (see table 5.1). They typically operate at the county level, though most major cities also have public health agen- cies. Most local health department offi cials engage in some degree of com- munication with policy makers regarding proposed public health legisla- tion, regulations, or ordinances, through means such as issue briefi ngs, advisory panels, public testimony, and technical assistance. Typical policy and advocacy areas (in order of prevalence) include tobacco, alcohol, and drug use; emergency preparedness and response; obesity and chronic dis- ease; food safety; waste, water, and sanitation; animal control or rabies ; access to health care; oral health; and injury or violence prevention.

Virtually all local health departments have some access to legal coun- sel, typically through attorneys assigned by the local government. Typi- cal legal services include representing the agency in contracting and liti- gation, providing formal opinions and informal advice on the legality of proposed agency actions, assistance with legislative and regulatory drafting, and determining which entities to prosecute or bring civil liti- gation against for regulatory violations.8

In most states, all local health departments are governed at the local level, by the local government executive directly or through appointed

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boards of health. In a smaller number of “centralized” states, all local health departments are governed by the state health agency.9 In a few states, all local health departments are governed by both state and local authorities.10 And in several states, governance is mixed: some local health departments within the state are locally governed, while others are under state or shared governance.11

About 70 percent of local public health agencies serve a jurisdiction that also has a local board of health.12 Board members are typically appointed by the city or county executive (based on public health, med- ical, or nursing expertise) to advise—and in many cases, oversee—the local public health agency. Boards typically set and impose a variety of health-related taxes and fees (e.g., for business permits and professional licenses). Most also engage in policy development and rulemaking: adopting priorities, resolutions, and regulations that are then imple- mented by the agency.13 We discuss administrative rulemaking at the local level in more detail below.

State Public Health Agencies and Boards of Health

The state’s police powers to protect the health, safety, and welfare of its inhabitants are inherent aspects of sovereignty, not derived from another source. The state’s plenary power to safeguard citizens’ health, moreover, includes the authority to create administrative agencies devoted to that task.14 Nonetheless, state-level public health administra- tions developed later than those of municipalities. The fi rst working

table 5.1 essential services performed by local public health agencies

1. Monitor health status to identify and solve community health problems. 2. Diagnose and investigate health problems and health hazards in the community. 3. Inform, educate, and empower people about health issues. 4. Mobilize community partnerships and action to identify and solve health problems. 5. Develop policies and plans that support individual and community health eff orts. 6. Enforce laws and regulations that protect health and ensure safety. 7. Link people to needed personal health services and assure the provision of

healthcare when otherwise unavailable. 8. Assure competent public and personal healthcare workforce. 9. Evaluate eff ectiveness, accessibility, and quality of personal and population-based

health services. 10. Conduct research to develop new insights and innovative solutions to health problems.

source: National Association of County and City Health Offi cials (NACCHO), 2010 National Pro- fi le of Local Health Departments (Washington, DC: NACCHO, 2011), 4.

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Public Health Governance | 157

state health board was formed in Massachusetts in 1869, followed by a number of other state boards in the 1870s, including California, Mary- land, Minnesota, and Virginia.15

Currently, there are fi fty-fi ve state-level health agencies (including those in the District of Columbia, American Samoa, Guam, Puerto Rico, and the U.S. Virgin Islands). State legislation determines the organization, mission, and functions of public health agencies. State agencies take many diff erent forms that defy simple classifi cation. Most state public health agencies are freestanding, independent departments (see fi gure 5.1), while the remainder are components of a larger state agency, referred to as an “umbrella agency” or “superagency” (see fi gure 5.2). The chief executive offi cer of the public health agency—the commissioner, director, or, less often, secretary—is usu- ally appointed by the governor but may be appointed by the head of a superagency or, rarely, the board of health. Qualifi cation standards may include medical and public health expertise, but increasingly, chief execu- tives with political or administrative experience are appointed.

According to surveys conducted by the Association of State and Ter- ritorial Health Offi cers (ASTHO), modern state public health agencies perform a wide range of functions.16 Most have full (or sometimes shared) fi scal and programmatic responsibility for federal nutrition and public health programs. Typically, they also run prevention programs aimed at educating and informing the public about tobacco control, HIV prevention, healthy eating, injury prevention, and other public health concerns. Most state public health agencies have responsibility for managing the supply of childhood and adult vaccinations, but fewer than half provide immunization services directly to the public. Most

Governor

Director, Department of Health

Law

Health Facilities

Local Health Services

Maternal and Child Health

Chronic Disease and Injury

HIV/AIDS

Administration

Planning

Environment

Laboratory

Vital Statistics

Epidemiology figure 5.1. Public health as a cabinet-level agency.

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158 | Legal Foundations of Public Health

agencies conduct surveillance activities to monitor trends in disease and injury. Many also administer screening programs for HIV and other sexually transmitted infections, tuberculosis, and a variety of chronic conditions. Nearly two-thirds of state public health agencies have an in-house legal department. Many also work with attorneys assigned by the state’s attorney general.17

The Expanding Role of Federal Agencies in Public Health

Although much of public health practice and law operates at the local and state levels, the role of the federal government has expanded considerably, especially over the last several decades. What began in the eighteenth century as a system of marine hospitals at sea and river ports has grown into a massive federal presence in the areas of health, safety, and security. Table 5.2 lists milestones in federal public health regulation.

Governor

Secretary of Agency for Human Services

Law

Health Facilities

Local Health Services

Maternal and Child Health

Chronic Disease and Injury

HIV/AIDS

Administration

Planning

Environment

Laboratory

Vital Statistics

Epidemiology

Rehabilitative Services

Substance Abuse

Public Health

Mental Health

MedicaidSocial Services

Director, Department of Health

figure 5.2. Public health as a division of a superagency.

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table 5.2 milestones in federal public health regulation

1796 Following a debate on states’ rights, the National Quarantine Act limits federal quarantine activities to cooperation requested by states to enforce

their own quarantine laws. 1798 The Act for the Relief of Sick and Disabled Seamen establishes the United

States Marine Hospital Service (USMHS), laying the groundwork for the U.S. Public Health Service.

1813 The Act to Encourage Vaccination provides for distribution of smallpox vaccine through the U.S. mail free of charge.

1822 The 1813 act is repealed after an outbreak is traced to contaminated vaccine distributed by a federal agent. Authority to regulate vaccines is given to

the states. 1862 A Division of Chemistry is created within the newly formed U.S. Department

of Agriculture (USDA), laying the groundwork for the modern-day Food and Drug Administration (FDA).

1878 A new National Quarantine Act creates a “disease intelligence system,” managed by the supervising surgeon general of the USMHS, and author-

izes rules and regulations at the federal level to detain ships with possible contagions on board. The reports of the surgeon general regarding these activities, “Bulletins of the Public Health,” are the predecessors of the modern-day Morbidity and Mortality Weekly Report issued by the Centers for Disease Control and Prevention (CDC).

1879 A National Board of Health is created, with responsibility for preventing the introduction of contagious diseases to the United States, public health

information gathering for states and the federal government, and quarantine procedures.

1891 An immigration act requires USMHS physicians to conduct immigrant health inspections and to exclude “all idiots, insane persons, paupers or persons

likely to become public charges, persons suff ering from a loathsome or dangerous contagious disease,” and criminals.

1892 A new National Quarantine Act is signed in response to an international cholera epidemic, requiring that all vessels from foreign ports have a bill of

health signed by a U.S. consul and enabling the surgeon general to evaluate state and municipal quarantine procedures.

1893 Debate over states’ rights leads to the disbanding of the National Board of Health and transfer of its powers to the USMHS.

1902 The USMHS is restyled as the Public Health and Marine Hospital Service of the United States (PHMHS). The surgeon general is empowered to compile

and collect data from states and territories on vital statistics. 1906 The Pure Food and Drugs Act prohibits interstate commerce in adulterated

and misbranded food and drugs, with enforcement authority located in USDA’s Bureau of Chemistry, forerunner of the FDA.

1912 The PHMHS is renamed the U.S. Public Health Service (USPHS) and authorized to study and investigate the propagation of disease.

1918 Congress appropriates $1 million to promote cooperation of the federal government with states and municipalities to prevent the spread of disease

(continued)

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table 5.2 (continued)

through interstate traffi c in order to safeguard “the health of military forces and Government employees.” The Division of Venereal Disease is established, expanding joint eff orts of states and the Public Health Service. In response to the Spanish infl uenza pandemic, Congress appropriates an additional $1 million to be managed by the Public Health Service’s director of interstate quarantine.

1921 The Sheppard-Towner Act enables the establishment of state centers to educate mothers about prenatal and infant care through federal grants. A

Federal Board of Maternity and Infant Hygiene is created to approve states’ use of the funds.

1929 The Narcotics Division (later the Division of Mental Hygiene) of the Public Health Service is established. Two hospitals are created for the confi ne-

ment and treatment of federal prisoners with drug addictions and those who voluntarily seek treatment for drug addiction.

1930 The Randsell Act creates the National Institutes of Health “to create a system of fellowships in said institute, and to authorize the Government to

accept donations for use in ascertaining the cause, prevention, and cure of disease.”

1935 Title VI of the Social Security Act, the public health title, authorizes expenditures for investigating disease and sanitation, for the fi rst time

creating a national health program. 1939 The Reorganization Act centralizes the USPHS, the Food and Drug

Administration, the Children’s Bureau, the Offi ce of Education, and a host of other agencies under the Federal Security Agency (FSA).

1943 To alleviate nursing shortages during World War II, Congress passes the United States Nurse Corps Act, providing funding for nursing education to

be administered through the USPHS. 1944 The Public Health Service Act recodifi es Public Health Service Laws and

creates the Division of Tuberculosis Control. 1946 The successful Malaria Control in War Areas program—based in Atlanta,

Georgia, to be near the southeastern states where malaria was endemic—is converted into the Communicable Disease Center, later the Centers for Disease Control and Prevention (CDC).

1946 The National Mental Health Act supports research on mental illness and calls for the establishment of a National Institute for Mental Health. Noting the need for a permanent program, not “dependent solely on agricultural surpluses that for a child may be nutritionally unbalanced,”

Congress passes the National School Lunch Act. 1953 The Federal Security Agency is elevated to cabinet status as the Department

of Health, Education, and Welfare (HEW). 1964 Building on pilot food stamp programs operated from 1939 to 1943 and

1961 to 1964, Congress passes the Food Stamp Act, launching a cooperative federal-state program to subsidize food purchases for low income households. The program is a predecessor of the modern-day Supplemental Nutrition Assistance Program (SNAP), a federal-state program overseen by the USDA.

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Public Health Governance | 161

1965 Medicare (a federally run program to provide health care coverage for the elderly and disabled) and Medicaid (a jointly administered and funded

federal-state program to provide health care coverage to children, caretaker relatives, the elderly, and individuals with disabilities living below specifi ed poverty thresholds) are created.

1970 USPHS programs in areas such as air pollution and solid waste are transferred to the newly created Environmental Protection Agency (EPA).

1971 The Occupational Health and Safety Administration (OSHA) is established within the Department of Labor (DOL).

1979 A major reorganization splits HEW into the Department of Education and the Department of Health and Human Services (DHHS).

1988 The McKinney Act provides for health care for the homeless. 1993 The Vaccines for Children Program is established, providing free

immunizations to all children in low income families. 2002 The establishment of the Department of Homeland Security (DHS) reorients

the mission of many health agencies toward a greater focus on emergency preparedness.

2003 The Medicare Prescription Drug Improvement and Modernization Act expands Medicare.

2009 The Family Smoking Prevention and Tobacco Control Act authorizes the FDA to regulate tobacco products.

2010 The Aff ordable Care Act institutes sweeping reform of the U.S. health care fi nancing and delivery system and includes many public health law reforms

aimed at disease prevention. The Healthy, Hunger-free Kids Act overhauls federal school meal programs

administered by the USDA and includes other reforms aimed at encouraging healthier eating and physical activity.

source: Adapted in part from Bess Furman, A Profi le of the United States Public Health Service, 1798–1948 (Washington, DC: National Institutes of Health, 1973).

In 1798, President John Adams signed “An Act for the relief of sick and disabled Seamen” establishing the United States Marine Hospital Service (USMHS) for merchant seamen, under the aegis of the Depart- ment of the Treasury, thereby launching what would eventually become the U.S. Public Health Service (USPHS).18 Almost three-quarters of a century later, in 1862, a Division of Chemistry was founded within the U.S. Department of Agriculture, laying the groundwork for the modern Food and Drug Administration (FDA).19 In 1887, a bacteriological lab- oratory known as the Laboratory of Hygiene was established at the Marine Hospital in Staten Island, New York, for research on cholera and other infectious diseases. This one-room laboratory evolved into the National Institutes of Health (NIH).20 In 1890, Congress gave the USMHS interstate quarantine authority, and in 1893, following

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162 | Legal Foundations of Public Health

outbreaks of cholera in Europe, Congress granted the federal govern- ment the right of quarantine inspection.21 In 1912, the USMHS was reorganized into the United States Public Health Service (USPHS).22

Many observers see Franklin Delano Roosevelt’s New Deal as an important juncture in developing an active federal role in public health. The Social Security Act of 1935 began to address problems of poverty and its harmful health eff ects, and the Federal Security Agency was established in 1939 to deal with health, education, social insurance, and human services. In 1946, the Communicable Disease Center was founded; it later became the Centers for Disease Control and Prevention (CDC).23 During this period, the federal government expanded its juris- diction over adulterated or otherwise harmful food, drugs, and cosmet- ics; established national standards for drinking water;24 enacted a vene- real disease control program in response to a reemergent sexually transmitted disease epidemic;25 and formed a federal grant-in-aid pro- gram requiring states to establish and maintain public health services and training for public health professionals.26

photo 5.2. Marine hospital in New Orleans. A 1798 law providing for the relief of sick and disabled seamen created a major role for the federal government in the public health arena by establishing the Marine Hospital Service (forerunner of the U.S. Public Health Service). Similar hospitals were built in many American port cities. From Edward King, The Great South: A Record of Journeys (Hartford, CT: American Publishing Company, 1875), 64. Used with permission of the North Carolina Collection, Wilson Library, University of North Carolina at Chapel Hill.

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photo 5.3. “Old Doc Wiley’s sure cure for all adulterations, fake foods, quack remedies.”At the beginning of the twentieth century, the chief chemist of the Bureau of Chemistry, Harvey Wiley, was at the forefront of the movement to protect the public’s health from adulterated foods and unregulated patent medicines claiming to cure all manner of ailments. He succeeded in 1906, when the Pure Food and Drugs Act was passed into law. Photo courtesy of the U.S. Food and Drug Administration.

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164 | Legal Foundations of Public Health

The federal presence expanded yet again as part of President Lyndon Johnson’s Great Society agenda for poverty reduction, education, and urban renewal, which resulted in the establishment of Medicare and Medicaid (see chapter 8).27 President Richard Nixon continued the trend of expansive federal regulation, forming new agencies to protect the environment and the safety of workers. By the time of President Ronald Reagan, however, the nation was becoming disenchanted with the growth in federal bureaucracy. The Reagan administration ushered in increased oversight of executive agencies, particularly through a mandate to conduct cost-benefi t analysis—a requirement that remains robust to this day (see chapter 6).28

After September 11, 2001, and with the establishment of the Depart- ment of Homeland Security (DHS) the following year, federal health agencies focused on biosecurity, with regard to intentional and acciden- tal dispersal of chemical or biological agents, nuclear events, and natu- rally occurring outbreaks of infectious disease such as highly patho- genic infl uenza. Federal funding to states and localities similarly emphasized public health preparedness.

In the Obama administration, federal agency programs began to refl ect a growing emphasis on the prevention of noncommunicable diseases such as diabetes, heart disease, and cancer. In 2009, the Family Smoking Pre- vention and Tobacco Control Act directed the FDA to regulate tobacco products. In 2010, the Aff ordable Care Act transformed the health care system. It also created the National Prevention, Health Promotion, and Public Health Council (better known as the National Prevention Council), comprising the heads of twenty federal agencies and chaired by the U.S. Surgeon General. The council is organized within DHHS and includes representation from the Departments of Agriculture, Education, Transpor- tation, Housing and Urban Development, Labor, Homeland Security, Inte- rior, Justice, and Defense, as well as the Veterans Aff airs Administration, the Environmental Protection Agency, the Federal Trade Commission, the Offi ce of National Drug Control Policy, the Domestic Policy Council, the Corporation for National and Community Service, the Offi ce of Manage- ment and Budget, the General Services Administration, and the Offi ce of Personnel Management. Its sweeping focus refl ects a signifi cant federal commitment to the “health in all policies” principle and the “whole-of- government” approach to health protection and promotion (see box 5.1).

The modern role of the federal government in public health is broad and complex. Responsibility for various public health functions, including emergency preparedness, health care, food safety, drug safety and eff ec-

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Public Health Governance | 165

box 5.1 Health in All Policies: Integrating Health Concerns into the Work of “Nonhealth” Agencies

[Laws] act at various points in and on the complex environments that generate the conditions for health[, including] the widely varied policy context of multiple government agencies, such as education, energy, and transportation agencies, as well as many statutes, regulations, and court cases intended to reshape the factors that improve or impede health. The measures range from national tobacco policy to local smoking bans and from national agricultural subsidies and school nutrition standards to local school-board decisions about the types of foods and beverages to be sold in school vending machines. — Institute of Medicine, For the Public’s Health, 2011

As the federal presence in public health has grown, coordination across multiple sectors and jurisdictions with overlapping responsibility for the determinants of health has become a pressing concern. At the same time, the social-ecological model of public health (see chapter 1) has highlighted the importance of cross-cutting prevention strategies. These and other developments have spurred interest in the “health in all policies” (HiAP) principle and the “whole-of-government” approach to health—health governance principles with important implications for administrative agencies.

“The core of HiAP is to examine determinants of health . . . which can be infl uenced to improve health but are mainly controlled by poli- cies of sectors other than health.”1 The HiAP principle represents “a reconceptualization of what constitutes health policy” to include poli- cies in societal domains far removed from traditional health policy.”2 As one U.S. advocacy organization puts it, “From agriculture policy that infl uences the food on our dinner table to national environmental decisions that put us at risk for disease, every choice we make brings us closer to, or moves us further from, our national health goals.”3 Many of the most pressing challenges facing our public health infrastructure

1. Marita Sihto, Eeva Ollila, and Meri Koivusalo, “Principles and Challenges of Health in All Policies,” in Health in All Policies: Prospects and Potentials, ed. Timo Ståhl, Matthias Wismar, Eeva Ollila, Eero Lahtinen, and Kimmo Leppo (Finland: Ministry of Social Aff airs and Health, 2006), 4. The term health in all policies was popularized during the second Finnish presidency of the European Union in 2006.

2. David R. Williams and Pamela Braboy Jackson, “Social Sources of Racial Dispari- ties in Health,” Health Aff airs, 24, no. 2 (2005): 325–34. See also Emily Whelan Parento, “Health Equity, Healthy People 2020, and Coercive Legal Mechanisms as Necessary for the Achievement of Both,” Loyola Law Review, 58 (2012): 655–719, 713–14.

3. Aspen Institute, “Health in All Policies,” www.aspeninstitute.org/policy-work /health-biomedical-science-society/health-stewardship-project/principles/health-all- policies.

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166 | Legal Foundations of Public Health

(from preventing noncommunicable diseases to responding to infec- tious disease outbreaks) benefi t from an integrated, whole-of-govern- ment approach, with agencies coordinating eff orts across sectors to achieve shared goals.

The HiAP principle is most explicitly recognized at the international level in the World Health Organization’s 2010 Adelaide Statement on Health in All Policies, which calls on “all sectors [to] include health and well-being as a key component of policy development,” and advocates for “a new form of governance where there is joined-up leadership within governments, across all sectors and between levels of govern- ment.”4 But the basic concept behind HiAP has been an important part of global health law and policy for decades. In 1986, for example, the World Health Organization’s Ottawa Charter on Health Promotion sought to “put health on the agenda of policymakers in all sectors and at all levels, directing them to be aware of the health consequences of their decisions and to accept their responsibilities for health.”5

In many countries, the HiAP principle is translated into practice through the use of health impact assessment (HIA), “a systematic process that uses an array of data sources and analytic methods and considers input from stakeholders to determine the potential eff ects of a proposed policy, plan, program, or project on the health of a popu- lation and the distribution of those eff ects within the population.”6 The methodologies on which HIAs rely have been the subject of exten- sive research and development.7

Agencies (and in some cases, private developers) are required or urged to conduct HIAs through legislation in several countries across Asia and Europe. Scholars and advocates have argued that HIAs should play a more signifi cant role in the United States, but thus far they have been explicitly mandated only in a handful of jurisdictions.8 For exam- ple, the Massachusetts Healthy Transportation Compact, an intera- gency initiative established by the state legislature in 2009, requires the use of HIAs as part of the approval process for transportation projects.9

4. World Health Organization, Adelaide Statement on Health in All Policies: Moving towards a Shared Governance for Health and Well-Being (Geneva: WHO Press, 2012).

5. World Health Organization, The Ottawa Charter for Health Promotion, www. who.int/healthpromotion/conferences/previous/ottawa/en/index1.html.

6. National Research Council, Committee on Health Impact Assessment, Improving Health in the United States: The Role of Health Impact Assessment (Washington, DC: National Academies Press, 2011), 15.

7. John Kemm, Jayne Parry, and Stephen Palmer, eds., Health Impact Assessment (Oxford: Oxford University Press, 2004), providing “an overview of the concepts, theory, techniques and applications of HIA to aid all those preparing projects or carrying out assessments.”

8. National Research Council, Improving Health in the United States (Washington, DC: National Academies Press, 2011); James G. Hodge Jr., Erin C. Fuse Brown, Megan Scanlon, and Alicia Corbett, Legal Review Concerning the Use of Health Impact Assess- ments in Non-health Sectors (Washington, DC: Pew Charitable Trusts) reviewed thirty-six jurisdictions and found only four instances of HIAs being required by law.

9. Ibid., 16–17.

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Public Health Governance | 167

The compact includes the state secretary of health and human services, the secretary of energy and environmental aff airs, the state highway administrator, the transit administrator, and the commissioner of pub- lic health. Its objectives include reduction of greenhouse gas emissions, improved access to services for people with disabilities, increased opportunities for physically active modes of transportation (like walk- ing and cycling), wellness, and obesity prevention.

Public health impacts are also frequently integrated into broader impact assessment requirements. For example, in Association of Irri- tated Residents v. San Joaquin Valley, a California court required a local air-pollution district encompassing eight counties to reassess its proposed rule with regard to confi ned animal facilities used for com- mercial agricultural purposes in light of public health impacts. The court based its ruling on the fact that the statutory directive to the local district mandated an assessment of “the signifi cance of [regu- lated] emissions in adversely aff ecting public health and the environ- ment” among several other factors.10 Laws that require broad consid- eration of health and environmental eff ects as part of agency decision making in nonhealth sectors represent an underutilized opportunity to apply the well-developed methodologies of HIA.

Even where their use is not mandated by law, HIAs are frequently initiated voluntarily, often with the assistance of academic centers and nonprofi t organizations, to inform analysis of government projects and programs.11 For example, in 2012, the local health department conducted an HIA of a twenty-year master plan for a proposed urban renewal district developed by the city of Billings, Montana. The HIA’s conclusions regarding access to healthy food, mixed-use zoning, and improvements in street safety and connectivity shaped the plan that was eventually approved by the city council.

The HiAP principle in general, and HIAs in particular, are poten- tially powerful tools for eff ectuating the social-ecological model of public health (see chapter 1). By “highlight[ing] the fact that the risk factors of major diseases, or the determinants of health, are modifi ed by measures that are often managed by other government sectors as well as by other actors in society,” the HiAP principle naturally “shift[s] the emphasis . . . from individual lifestyles and single diseases to societal factors and actions that shape our everyday living environ- ments.”12

10. Ass’n of Irritated Residents v. San Joaquin Valley, 85 Cal. Rptr. 3d 590 (Cal. Ct. App. 2008).

11. See Pew Charitable Trusts, Health Impact Assessments in the United States, www. pewtrusts.org/en/multimedia/data-visualizations/2015/hia-map, accessed August 6, 2015, which presents an interactive map providing information about recent and ongoing health impact assessments in the United States.

12. Ståhl et al., Health in All Policies, xvi.

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tiveness, environmental protection, nutrition and preventive services, is located in an array of agencies. DHHS is the umbrella agency under which most of these functions are located. Under its aegis, various programs pro- mote and protect health. The Centers for Medicare and Medicaid Services (CMS) administers the Medicare and Medicaid programs. The CDC pro- vides technical and fi nancial support to states in monitoring, controlling, and preventing disease. The CDC’s eff orts include population-based initia- tives such as childhood vaccination, chronic disease prevention and man- agement, injury prevention, and emergency response to infectious disease outbreaks. The NIH conducts and supports research, trains investigators, and disseminates scientifi c information. The FDA ensures that food and cosmetics are pure and safe and that drugs, biologics, and medical devices are safe and eff ective; it also regulates tobacco products. DHS’s mission is risk assessment, prevention, protection, response, and recovery with respect to terrorism, natural disasters, and other health emergencies.29

As the federal government has garnered more resources and the Supreme Court has permitted greater congressional authority, the fed- eral presence in public health has grown. It is now nearly impossible to fi nd a fi eld of public health that is not heavily infl uenced by the federal government.

administrative law: powers and limits of executive agencies

Health and safety concerns pose complex, highly technical challenges that require expertise, fl exibility, and deliberative study over the long term. Agencies, which are generally formed within the executive branch to focus on specialized areas of concern, are in many ways better posi- tioned to respond to those challenges than general-purpose representa- tive assemblies whose members serve for defi ned terms of offi ce.30 Policy makers rely heavily on agencies to address important social problems, delegating considerable authority to them. These broad delegations cre- ate the need for checks and balances. Administrative agencies are gov- erned by particular restraints on their authority, generally derived from separation-of-powers principles established in the federal or state con- stitution.

At the federal level, agencies include the various cabinet-level depart- ments (the Department of Health and Human Services, the Department of Homeland Security, the Department of Agriculture, etc.) as well as the plethora of subentities formed within each department. For example,

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DHHS encompasses the Centers for Disease Control and Prevention, the Food and Drug Administration, and the National Institutes of Health, among others. Each of these subdepartmental agencies is populated by additional centers, programs, and offi ces devoted to particular functions or areas of concern. Other agencies are freestanding, existing outside the department structure. These include independent executive branch agen- cies, such as the Environmental Protection Agency (EPA), whose admin- istrator has cabinet-level status. Other freestanding agencies, such as the Consumer Product Safety Commission, are designated as independent regulatory agencies to indicate that they are more insulated from the president’s infl uence. At the state level, there are agencies representing many of the same substantive areas, but with wide variety in their insti- tutional designs and designations. Local agencies tend to focus on a somewhat narrower range of concerns.

Agencies regulate private conduct, administer entitlement programs, and perform a host of other functions. In doing so, they may engage in rulemaking, investigation of potential violations (sometimes, though not always, with the authority to conduct inspections or to compel produc- tion of evidence and information), adjudication of alleged violations or entitlements, and enforcement (through civil administrative or judicial action or criminal prosecution). For example, the Occupational Safety and Health Act of 1970 authorizes the secretary of labor to promulgate mandatory workplace safety standards, enforce the law through moni- toring, inspections, and fi nes, and adjudicate or arbitrate disputes.31 The lines between lawmaking, enforcement, and adjudication have become blurred with the rise of the administrative state. Because agencies per- form a combination of quasi-legislative, judicial, and executive functions and yet are neither directly accountable to the electorate (as the legisla- ture and executive are), nor independent (as the judiciary is), they are sometimes described as the “headless fourth branch” of government. The central dilemma of administrative law is how best to achieve appro- priate oversight and accountability in the absence of direct election and full separation of powers.32

Judicial Review of Agency Action

The judiciary plays a key role in reviewing the exercise of agency pow- ers to ensure that agency action falls within the legitimate scope of properly delegated authority.33 The language of the enabling statute that confers regulatory authority confi nes all agency action. Statutory

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language is often inherently broad or ambiguous, which means that there is a range of actions that an agency could take. As a result of ambiguities, agency regulations are often challenged, typically by either the industry being regulated (seeking to avoid stringent regulation) or by public interest groups (seeking to ensure regulation adequate to pro- tect the public).

The Nondelegation Doctrine

One avenue for challenging agency action is the nondelegation doctrine. Nondelegation is a corollary to the separation of powers. Given that the federal Constitution vests “all legislative powers” in Congress, the argu- ment goes, those powers cannot be delegated to anyone else.34 In fact, however, the Supreme Court has held that Congress may properly del- egate authority to the executive branch or to an independent regulatory agency so long as the statute provides an “intelligible principle” to guide agency action.35

The nondelegation doctrine requires the legislature to provide rea- sonably clear standards for agency rulemaking: that is, the statutory criteria cannot be so vague as to give the agency unfettered discretion to set policy. However, federal courts rarely use the doctrine to invalidate statutory delegations of power to agencies.36 In Whitman v. American Trucking Associations (2001), for example, the Court held that the Clean Air Act’s directive to the EPA to devise air-quality standards designed to protect the “public health” with “an adequate margin of safety” is not so “standardless” as to amount to an unconstitutional delegation of legislative power.37

Statutory Construction and the Scope of Agency Authority

Another way in which courts police agency action is by determining the legitimate scope of agency authority via statutory construction. For example, in Food and Drug Administration v. Brown & Williamson Tobacco Corp. (2000), the Supreme Court sided with industry groups to invalidate an FDA rule curtailing the promotion and accessibility of cigarettes to children and adolescents. Considering the Food, Drug, and Cosmetic Act as a whole, the Court reasoned that Congress intended to exclude tobacco products from the FDA’s jurisdiction.38 The principal inquiry, therefore, is what powers the legislature intended to confer on the agency.39 It took several years, but Congress eventually responded

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to the Court’s restrictive ruling by granting explicit authority to the FDA to regulate the tobacco industry in the 2009 Family Smoking Pre- vention and Tobacco Control Act.40

Although the courts do not rigidly apply the nondelegation doctrine to invalidate broad grants of authority to agencies, they frequently invoke nondelegation as an aid to statutory construction. When inter- preting statutory grants of authority to agencies, courts generally seek to honor legislative intent. In cases where a statutory grant is so broad as to raise nondelegation concerns, however, courts may construe the grant more narrowly so as to invalidate the agency action at issue while avoid- ing invalidation of the statute itself. Boreali v. Axelrod, a state adminis- trative law ruling by the New York Court of Appeals (the state’s supreme court), provides an excellent example.41 In Boreali, the court addressed the authority of the state-level Public Health Council (part of the New York State Department of Health) to issue regulations prohibiting smok- ing in certain indoor areas open to the public. Under the statute in eff ect at the time, the Public Health Council was given broad authority to “deal with any matters aff ecting the . . . public health.”42 The Court of Appeals technically upheld this broad grant in the face of a nondelega- tion challenge under the state constitution’s provision vesting legislative power in the state senate and assembly. Ultimately, however, the court found that the Public Health Council’s action exceeded the scope of this statutory delegation, after noting that the broad grant of authority must be construed narrowly so as to avoid running afoul of the nondelegation principle.

Procedural Requirements for Agency Action

In addition to determining the substantive scope of agency power, courts also review agency adherence to the procedures mandated by the federal Administrative Procedure Act (APA), or by comparable state procedure acts. The federal APA was enacted in 1946 following a decade of pains- taking negotiations over the extent to which the workings of the vast array of administrative agencies created as part of the New Deal would be regularized and constrained, and how.43 The APA is intended to ensure transparency, public participation, and standardization. It also establishes distinct standards for judicial review of agency rulemaking and adjudication. Between 1941 and 1984, every state adopted its own APA.44 For the most part, these state-level APAs are based on the same basic model as the federal APA, but there are important variations. For

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example, many states have adopted more rigorous nondelegation doc- trines or more extensive rule-review procedures than those applicable to federal agencies.45

Rulemaking

Although agencies possess considerable power to issue detailed rules, they must do so fairly, publicly, and within the scope of the legislative delegation of authority. Federal and state APAs (as well as agency-ena- bling acts) govern the deliberative processes that agencies must undertake in issuing rules.46 Under one of the standards of judicial review estab- lished in the federal APA, courts may set aside an agency-made rule based on a determination that the regulation is contrary to the Constitution or the governing statute, “arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with the law.”47

The federal APA provides for two diff erent procedural forms for rulemaking (and many state APAs follow similar paths): informal and formal. Some additional agency rulemaking is exempted from the act’s procedural requirements.48 The APA’s basic rulemaking procedure (called informal or notice-and-comment rulemaking) was intended to be a simple and fl exible process, although in practice it is often unwieldy and cumbersome. It consists of three requirements: prior notice (e.g., publication in the Federal Register), consideration of written comments submitted by interested parties, and a statement of the basis and pur- pose for the rule.49

The formal rulemaking process (“rulemaking on the record”) directs the agency to conduct a hearing and provide interested parties with an opportunity to testify and cross-examine adverse witnesses before issu- ing a rule.50 If an agency required to proceed by formal rulemaking fails to adhere strictly to formal procedures, which can be extremely costly and cause considerable delay, the resulting regulation may be invali- dated. For example, in the 1970s, the FDA devoted nearly two years to hearings on proposed regulations of vitamin supplements. Industry groups unhappy with the fi nal rule then fi led petitions under the FDA’s enabling act, which provides for direct circuit court review of certain types of FDA regulation upon the petition of adversely aff ected parties. The Second Circuit ultimately invalidated the regulation not because it was deemed unreasonable per se, but rather because the agency had unduly restricted cross-examination of a proregulation medical expert.51 Notably, the record refl ected that the hearing offi cer had expressed

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concern that antiregulation advocates might be deliberately using repet- itive cross-examination to “unduly extend” the hearing.52

Investigation and Enforcement

In addition to rulemaking, agencies also have the executive power to enforce laws and regulations and to investigate alleged violations. Enforce- ment is squarely within the constitutional powers of executive agencies. Legislatures set the penalty for violation of health and safety standards; the executive branch monitors compliance and seeks redress against those who fail to conform. Pursuant to their enforcement power, health depart- ments may inspect premises and businesses, investigate complaints, and monitor the activities of those within the ambit of health and safety laws.

Administrative inspections of private commercial property may consti- tute searches under the Fourth Amendment. However, the Supreme Court has held that “unlike searches of private homes, which generally must be conducted pursuant to warrant in order to be reasonable under the Fourth Amendment, legislative schemes authorizing warrantless administrative searches of commercial property do not necessarily violate the Fourth Amendment.”53 In particular, courts have often held that a warrant is not required for administrative searches of enterprises engaged in “pervasively regulated industries” because owners’ minimal privacy interest “may, in certain circumstances, be adequately protected by regulatory schemes authorizing warrantless inspections.”54 The lower courts have found the administrative search exception applicable “where the search promotes an important governmental interest, is authorized by statute, and the author- izing statute and its regulatory scheme provide specifi c limitations on the manner and place of the search so as to limit the possibility of abuse.”55 On the other hand, where an inspection is authorized by statute but there are “no rules governing the procedure that inspectors must follow, the Fourth Amendment and its various restrictive rules apply.”56

Adjudication

Agencies also exercise quasi-judicial functions by interpreting statutes and adjudicating disputes. Administrative Procedure Acts and agency- enabling statutes often enumerate the procedures that agencies must fol- low in adjudicating disputes. Under the federal APA, formal adjudica- tions (“evidentiary” or “on-the-record” hearings) apply only in the

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relatively rare cases where the agency’s authorizing statute requires them.57 Formal adjudications are typically conducted by an administra- tive law judge (ALJ). In the federal system, ALJs are typically assigned to and housed within individual agencies, but in most states they are housed in a central panel that reviews adjudications by all agencies.58 ALJ review is typically followed by an appeal to the agency head, whose decision is ultimately appealable to a state or federal court. Formal adju- dications usually include notice, the right to present oral and written evidence, cross-examination of hostile witnesses, and agency fi ndings of fact and law as well as reasons for the decision. Even in the absence of statutory requirements, federal and state constitutions require fair hear- ings if the regulation deprives an individual of “property” or “liberty” (see chapter 4). Consequently, agencies are constitutionally obligated to provide due process for adjudicative hearings.59

In summary, modern administrative agencies exercise legislative power to issue rules that can carry heavy penalties, executive power to investigate potential violations and to sanction off enders, and judicial power to interpret law and adjudicate disputes. Agency powers have developed to take advantage of the fl exibility, expediency, and expertise that agencies possess, as well as in response to political considerations.

Judicial Deference to Agencies

When a dispute over agency action makes its way to the judiciary, a key administrative law question arises: whether courts should grant defer- ence to the agency’s legal conclusions. That is, should courts give special weight to an agency’s interpretation of a regulation it promulgated or a statute it implements, overruling the agency’s interpretation only if it is plainly erroneous? Or should courts interpret statutes and regulations for themselves without reference to the agency’s conclusions (known as de novo review)?60

Under Auer v. Robbins (1977), the courts defer to an agency’s inter- pretation of a regulation it promulgated so long as it is reasonable.61 As the Supreme Court reaffi rmed in a 2013 case, “an agency’s interpreta- tion need not be the only possible reading of a regulation—or even the best one—to prevail. When an agency interprets its own regulation, the courts, as a general rule, defers to it unless that interpretation is plainly erroneous or inconsistent with the regulation.”62

The Supreme Court’s deference analysis is somewhat more complicated with regard to agency interpretations of statutes enacted by Congress. In

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Chevron v. Natural Resources Defense Council (1984), a case challenging an EPA rule redefi ning a statutory term in the Clean Air Act to give greater fl exibility to manufacturing plants, the Supreme Court created a two-step test for determining whether an agency’s interpretation of a statute war- rants deference.63 Under Chevron step 1, if Congress has “directly spoken to the precise question at issue” using unambiguous statutory language, then the courts must enforce Congress’s mandate rather than deferring to the agency.64 Where the statute’s language is ambiguous, courts proceed to Chevron step 2, deferring to the agency’s interpretation so long as it is not arbitrary or capricious, on the understanding that Congress’s ambiguous language amounts to an implied delegation of power to the agency to fi ll the gaps in the statute.65

Complicating matters further, the courts must also decide whether Chevron is the appropriate framework for resolving the question at issue, an inquiry that commentators refer to as Chevron step zero. Chev- ron deference is granted only “when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority.”66 Thus, courts have declined to grant Chevron deference to informal agency interpretations that lack the force of law and were not promulgated through formal procedures. In such cases, an agency’s interpretation is entitled to respect only to the extent that it has the “power to persuade” the court to endorse it.67

In City of Arlington v. FCC (2013), the Supreme Court pronounced that Chevron deference may be warranted even with respect to an agen- cy’s determination of its own jurisdiction.68 These jurisdictional questions can have enormous importance as a foundation for regulation. In 2003, for example, the EPA declined to regulate greenhouse gas emissions from vehicles, arguing that it did not have authority to do so under the Clean Air Act because greenhouse gases did not satisfy the statute’s defi nition of “air pollutant.” The Supreme Court eventually ruled that the statutory language was unambiguous (Chevron step 1) and rejected the agency’s interpretation, eff ectively directing the EPA to take action.69 In one sense, City of Arlington could be read as a blow to judicial oversight of agency action. But the Court’s opinion also reveals support for the judiciary to conduct something close to de novo review at Chevron step zero.70 The Court’s apparent endorsement of a robust role for judges at this crucial step has the potential to restrict fi ndings of deference-triggering ambiguity to considerably fewer cases than has been the norm thus far.71In King v. Burwell (2015), for example, the Supreme Court found that the Chevron

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test was not the appropriate framework for deciding whether premium assistance subsidies were properly made available through federally run health insurance exchanges. The Court determined that an Internal Rev- enue Service (IRS) rule interpreting the Aff ordable Care Act (ACA) to provide for subsidies on federally run exchanges did not warrant Chevron deference because Congress would not have delegated authority on such an important health policy question to the IRS without doing so explic- itly. The Court had previously relied on this principle, known as the major questions doctrine, in 2000, when it denied the FDA authority to regulate tobacco products in the absence of an express delegation.72 Ultimately, however, the Court agreed with the IRS’s interpretation of the ACA, fi nd- ing that Congress intended subsidies to be available on all health insur- ance exchanges, whether established by the state or the federal govern- ment. The importance of subsidies to ACA’s goal of expanding access to health insurance is discussed in chapter 8.73

Political Infl uence and Other Restraints on Agency Action

The legal framework governing judicial deference is important because it delineates the extent to which judicial oversight acts as a check on agency action. Administrative agencies wield considerable power over regulated entities. The nondelegation doctrine has not proved to be a suffi cient check on agencies; thus, the Court has limited judicial defer- ence to administrative interpretations of statutes to ensure that agencies do not stray too far from the legislative grants of power. The other branches of government also exert control over agencies. The legisla- ture, of course, defi nes the scope of agency authority and has the power to override agency regulations by statute, revoke agency authority, or even dissolve an agency altogether. But for the most part, representative assemblies act in more subtle ways to infl uence agency action.74 Simi- larly, the executive (whether president, governor, mayor, or county executive) directs and infl uences agencies in a variety of ways.75

One particularly important restraint on federal agency action is the oversight of the Offi ce of Information and Regulatory Aff airs (OIRA), located within the Offi ce of Management and Budget. The agency was created under the Paperwork Reduction Act of 1980, which imposed procedural requirements on agencies collecting information from the public or mandating that private parties provide information to the pub- lic.76 A 1993 executive order expanded OIRA’s functions considerably as part of a push “to enhance planning and coordination with respect to

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both new and existing regulations; . . . to restore the integrity and legiti- macy of regulatory review and oversight; and to make the process more accessible and open to the public.”77 As discussed in chapter 6, the exec- utive order also gave OIRA authority to review draft regulations pro- posed by federal agencies to ensure they comply with its directive that all federal agencies evaluate potential rules using cost-benefi t analysis.

local government authority Local assemblies of citizens constitute the strength of free nations. . . . A nation may establish a system of free government, but without the spirit of municipal institutions it cannot have the spirit of liberty.

— Alexis de Tocqueville, Democracy in America, 1835

It can reasonably be argued that the need for local democracy has grown since de Tocqueville’s time, as the federal and state govern- ments have become larger and more complex, while access to them for ordinary citizens has become even more diffi cult.

— Robert C. Holmes, “The Clash of Home Rule and Aff ordable Housing,” 2013

Local government activity with regard to public health is certainly not restricted to public health agencies. Local executives and legislative bodies may adopt public health laws (often guided by public health agencies). And the activities of local agencies operating in sectors other than public health (such as zoning, housing, education, transportation, and so forth) can have enormous infl uence on public health. All of these entities are subject to special restraints, typically studied under the rubric of local government law.

Local governments include all government jurisdictions below the state level. All states are divided into counties, but the size and number of counties in a state varies widely. For example, Texas has 254 coun- ties, whereas Delaware has 3, and Florida and Alabama both have 67 counties, despite substantial diff erences in geographic area and popula- tion.78 The makeup of local government entities below the county level also varies considerably from place to place. Within each county there may be municipalities, which include cities, towns, townships, bor- oughs, and villages. A few large cities, such as Baltimore, are operated as consolidated city-county jurisdictions, where city and county func- tions are performed by a single municipal entity. In many rural areas, there is often no local government below the county level. In addition to general-purpose local government entities, in many states there are

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independent local government units organized for narrow purposes, such as school districts, fi re protection districts, water resource manage- ment districts, sanitary sewer districts, and so forth. Altogether, there are more than ninety thousand local governments in the United States, many with overlapping jurisdictions.79

While the federal Constitution delineates the powers of the federal government and leaves reserved powers to the states, it is silent with respect to the powers of localities. Local governments are created and governed by state grants of authority.80 While it is undisputed that states have plenary authority to protect the health and welfare of the populace (subject to the limitations imposed by the federal Constitution), there is considerable disagreement over how much leeway should be given to local governments to address similar concerns.

Home Rule and Judicial Construction of Delegation to Local Governments

The scope of local government authority varies from state to state and among diff erent classes of localities within a state. Potential sources of local government authority include the state constitution (which dele- gates power directly from the people to local governments), state legis- lation (whereby the state legislature delegates power to local govern- ments), and local charters (whereby local voters typically approve the authority of the chartered locality, pursuant to the state’s law with respect to incorporation of localities).81

Constitutional and statutory grants of authority to cities or counties determine the degree of autonomy, or “home rule,” over local aff airs enjoyed by the local government. In the majority of states, at least some local government entities are granted considerable home rule, meaning that they have broad authority to regulate for the protection of the pub- lic’s health, safety, welfare and morals, to license, to tax, and to incur debt, subject only to the limitations imposed by the state and federal constitutions.82 This kind of constitutional authority can insulate cities and counties from state interference with purely local public health functions. In some cases, home-rule provisions specifi cally hold that local ordinances take precedence over state law under certain circum- stances. For example, in California, the state constitution provides that the ordinances of charter cities supersede state law with respect to municipal aff airs, but state law is supreme with respect to matters of statewide concern.83 Local governments that lack home rule perform

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the same basic functions but operate pursuant to specifi c grants of authority and must obtain the permission of the state government to pass legislation that falls outside the scope of an existing grant.

Home rule is sometimes mistakenly contrasted with a doctrine of stat- utory construction known as Dillon’s Rule, but the two doctrines can and do coexist in many states.84 Whereas home rule refers to the breadth or narrowness of the grant of local government authority, Dillon’s Rule refers to a judicial rule of construction holding that statutory grants of authority to local governments (which may be drafted broadly or nar- rowly) should be interpreted as narrowly as possible by the courts.85

Courts construe state grants of police power to ensure that local gov- ernments act within the scope of their delegated authority. Iowa Supreme Court Justice John F. Dillon formulated Dillon’s Rule in a late- nineteenth-century opinion.86 Dillon deeply distrusted local govern- ment, which he believed was corrupted by so-called political machines.87 The Tammany Hall Society, which controlled New York City politics from the mid-nineteenth century through the early twentieth, is perhaps the best-known example of machine politics, but control of small-town politics by machines was also quite common during Dillon’s time.88 Ultimately, Dillon ruled that a local government “possesses and can exercise the following powers, and no others: fi rst, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the accom- plishment of the declared objects and purposes of the corporation—not simply convenient, but indispensable. Any fair, reasonable, substantial doubt concerning the existence of power is resolved by the courts against the [local government], and the power is denied.”89

The Cooley Doctrine represents the other extreme of judicial con- struction of delegations to localities.90 Whereas Dillon distrusted local government, Michigan Supreme Court Justice Thomas M. Cooley was more sympathetic to advocates calling for increased state constitutional protection of local government authority and broad readings of existing grants. In an 1871 concurrence, Cooley expressed his opinion that the state constitution created an absolute right to local self-government, which cannot be abridged by the state legislature.91 Cooley’s view was that local governments predated the formation of state governments and therefore should be treated as parallel to the state rather than as creatures of the state.

The U.S. Supreme Court endorsed Dillon’s view of state power over local governments in Merrill v. Monticello (1891).92 The Court has also

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pronounced that the federal Constitution does not restrict the control of state legislatures over municipal corporations.93 State courts remain free, however, to adopt the Cooley Doctrine, or some variation of it, as a doctrine of state constitutional law.

The modern judiciary continues to be split on whether to interpret state delegations of powers to local government strictly or liberally.94 Histori- cally, Dillon’s Rule has had greater infl uence on state court interpretation of statutory delegations to local governments, with perhaps a slight trend away from strict adherence to it in recent years.95 In most states that have adopted state supremacy by declining to recognize home rule for any local- ities, the courts apply Dillon’s Rule. In many states that recognize home rule for some local jurisdictions but not others, the courts apply Dillon’s Rule to non–home rule jurisdictional grants but not to home rule grants. For example, in California, “charter cities” enjoy home rule authority that is not subject to Dillon’s Rule. “General law cities,” on the other hand, derive their authority from specifi c grants, which are construed narrowly pursuant to Dillon’s Rule.96 In rare instances, courts have applied Dillon’s Rule to read a broad home-rule grant as narrowly as possible.97

Local Government Autonomy and Public Health The country is stuck but it is not stationary. Some things are changing—just not at the federal level.

— Paul Starr, “The American Situation,” 2014

Local government autonomy has important implications for public health. Indeed, the strict construction of delegations to local govern- ments during the nineteenth century was often used to block public health measures that judges regarded as unwise from an economic or social standpoint.98 Cities have long exercised primary responsibility for monitoring and controlling the spread of communicable disease. In recent decades, local governments have emerged as innovators in the areas of environmental protection, gun control, tobacco control, healthy eating, and active living. Modern courts often fi nd public health powers quintessentially to be within the local sphere,99 but local eff orts to regulate consumer products, retail environments, and other matters with importance to noncommunicable disease and injury prevention have prompted many state legislatures to preempt local authority, par- ticularly where industry interests are at stake (see box 5.2). National industry groups seeking a regulatory environment favorable to their interests may fi nd it easier to concentrate their eff orts on deregulatory

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box 5.2 State Preemption of Local Public Health Regulation: From Firearms to Happy Meals

[Preemption] slows or even ends grassroots movements often before they begin. I think it also drains a lot of our resources for future advocacy eff orts. We leave it to the next generation of public health advocates to undo policy compromises that we make today. — Jill Birnbaum, American Heart Association, 2013

Just as federal law may preempt state law (see chapter 3), state law may preempt local ordinances. On the one hand, preemption allows for greater uniformity and predictability. On the other hand, it can stifl e experimentation at the local level. Preemption can have a deregu- latory eff ect where the preempting law is less stringent than the state or local law that it replaces. In some cases, preemptive legislation has little or no purpose other than to invalidate the law of subordinate jurisdictions. State preemption of local authority has played a particu- larly important role in politically controversial areas of public health law such as fi rearms regulation, tobacco control, and healthy eating.

Most states have enacted broad preemption statutes to revoke local authority to regulate fi rearms and ammunition.1 For example, state law in South Dakota prohibits counties from passing any ordinance that “restricts possession, transportation, sale, transfer, ownership, manufacture or repair of fi rearms or ammunition or their compo- nents” and declares any such ordinance “null and void.”2 In response to these broad preemption statutes, cities and counties have adopted innovative methods to regulate fi rearm violence through traditional zoning, licensing, and permitting authority (e.g., banning dealers in residential areas and adopting rigorous licensing standards).3

In the hard-fought battles to adopt and implement antismoking regulations, preemptive legislation was typically introduced at the state level shortly after the adoption, or even consideration, of the fi rst

1. See Law Center to Prevent Gun Violence, “Local Authority to Regulate Firearms Policy Summary,” http://smartgunlaws.org/local-authority-to-regulate-fi rearms-policy- summary, accessed August 7, 2015, documenting that forty-three states have enacted broad preemption statutes and that two others have narrower express preemption statutes.

2. S.D. Codifi ed Laws § 7–18A-36 (2013). 3. Suter v. Lafayette, 67 Cal. Rptr. 2d 420 (Cal. Ct. App. 1997) (upholding against

preemption challenge a city ordinance requiring fi rearm dealers to obtain land use and police permits in addition to licenses already required by state and federal law); Marice Ashe, David Jernigan, Randolph Kline, and Rhonda Galez, “Land Use Planning and the Control of Alcohol, Tobacco, Firearms, and Fast Food Restaurants,” American Journal of Public Health, 93, no. 9 (2003): 1404–8; Daniel W. Webster, Jon S. Vernick, and Lisa M. Hepburn, “Relationship between Licensing, Registration, and Other Gun Sales Laws and the Source State of Crime Guns,” Injury Prevention, 7, no. 3 (2001): 184–89.

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local ordinances banning smoking.4 Over time, smoking bans became more politically viable and prevalent across jurisdictions. Still, preemp- tive legislation in a few states continues to be a drag on local tobacco control eff orts.

The current wave of anti–public health preemptive legislation is focused primarily on healthy eating. Ohio, Arizona, Florida, and other states have recently enacted laws prohibiting local governments from regulating food sellers, taxing food and beverage products, or both. These bills, sponsored by the food, beverage, and restaurant industries and their allies, have been passed in direct response to innovative public health ordinances passed by local governments in other states. For example, in 2011, Florida and Arizona passed preemption bills prohibiting local governments from regulating the use of toys and other giveaways to promote unhealthy fast food meals to children.5 These measures were clearly inspired by healthy incentive ordinances (better known as Happy Meal ordinances) adopted by the City of San Francisco and Santa Clara County to prohibit toy giveaways with meals that fail to meet fairly minimal nutritional requirements (see chapter 12).

Other states have gone further. Ohio passed a 2011 preemption law (buried in a fi ve-thousand-page budget measure) giving the state’s agriculture department “sole and exclusive authority . . . to regulate the provision of food nutrition information and consumer incentive items at food service operations.” The law also specifi cally prohibited local governments from enforcing food content bans and from adopt- ing legal measures to address “food-based health disparities.”

Just a few months before the state preemption measure was passed, the City of Cleveland had adopted a ban on artifi cial trans fat in locally sold prepared foods. Cleveland sued to challenge the preemp- tion law and, in 2013, a state appellate court struck it down, noting that it “unconstitutionally attempts to limit municipal home-rule authority.”6 The court distinguished the nutrition preemption law from an earlier Ohio statute preempting local fi rearm regulations, which had been upheld in 2010.7 The key distinction was that, unlike the food content regulation, the fi rearms regulation was part of a “statewide and comprehensive legislative enactment, in part, based upon its placement in the context of a host of state and federal laws regulating fi rearms.”8 In contrast, the court found that the “broad, fl at

4. See Sharon Bernstein, “Fast-Food Industry Is Quietly Defeating Happy Meal Bans,” Los Angeles Times, May 18, 2011; Paul D. Mowery, Steve Babb, Robin Hobart, Cindy Tworek, and Allison MacNeil, “The Impact of State Preemption of Local Smoking Restrictions on Public Health Protections and Changes in Social Norms,” Journal of Envi- ronmental and Public Health, 2012 (2012): 2.

5. See Dale Kunkel and Doug Taren, “Pre-emptive Bill on Fast Food and Kids Reeks of Hollow Politics,” Arizona Daily Star, March 1, 2011.

6. Cleveland v. Ohio, 989 N.E.2d 1072 (Ohio Ct. App. 2013). 7. Cleveland v. Ohio, 942 N.E.2d 370 (Ohio 2010). 8. Cleveland v. Ohio, 989 N.E.2d at 1081.

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ban by the General Assembly prohibiting municipalities from exercis- ing their police powers in this area” was not justifi ed as part of com- prehensive legislation regarding the content of food served in restau- rants.9

The court noted that it was particularly concerned about the proc- ess by which the preemption provision was added to the general appropriations bill:

In response to the city of Cleveland’s trans-fats Ordinance, the Ohio Restaurant Association [ORA] . . . sent an email to the Ohio Depart- ment of Agriculture with an attached legislative proposal. The email stated that the Ordinance was “exactly what we want to preempt with the attached amendment.” The email also stated that the amendment was “a high priority for Wendy’s, McDonalds and YUM! [the operator- licensor of Taco Bell, KFC and Pizza Hut].” According to the email, a senator had already been given a copy of ORA’s proposed legislation and would off er it in the Senate Finance Committee. Thus, the amend- ments were drafted on behalf of a special interest group with the specifi c purpose of snuffi ng out the Ordinance.10

Cleveland v. Ohio demonstrates that broad state preemption may run afoul of home rule, at least for localities whose home rule authority is established in the state constitution.11 Similarly, state courts in New York and Pennsylvania have recently rejected state preemption of local authority to regulate the practice of hydraulic fracturing, better known as fracking (a process by which natural gas is extracted from shale at great depth below ground level).12

9. Id. at 1081–82. 10. Cleveland v. Ohio, 989 N.E.2d at 1085 (discussing a distinct challenge to the state

preemption law as violating an anti-logrolling provision known as the single subject rule). 11. See also State v. City and County of Denver, 139 P.3d 635 (Colo. 2006) (holding

that the state’s broad statute preempting fi rearms regulation unconstitutionally infringed on Denver’s home rule authority and reinstating the city’s ordinance prohibiting carrying of fi rearms in city parks).

12. John R. Nolon and Steven E. Gavin, “Hydrofracking: State Preemption, Local Power, and Cooperative Governance,” Case Western Reserve Law Review, 63, no. 4 (2013): 995–1039.

state legislation, bypassing the need to petition tens of thousands of local governments to adopt industry-friendly policies.

Relationships among states and localities are complex, highly politi- cal, and shaped in important ways by state and regional history. Each level of government may fervently claim jurisdiction over public health matters such as smoking or infectious disease control. States may seek to deny local authority by withholding grants of power or resources or by preempting local regulation. Localities, on the other hand, may claim

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184 | Legal Foundations of Public Health

implied authority or assert home rule over public health matters of inherent local importance.

Politically controversial measures may be more readily adopted in localities with a more uniformly progressive or conservative electorate than at the state or federal level, where compromise requires painstak- ing negotiation.100 Additionally, unlike states and the federal govern- ment, local government legislatures are not bicameral—divided into two houses, both of which must approve new legislation. The stream- lined unicameral structure makes policy innovation more feasible.101 The experience of a few pioneering local governments can inform eff orts to implement similar measures in more reticent jurisdictions. Local debate over proposed measures increases civil participation and raises awareness about public health issues. Local government authorities have greater expertise with regard to local issues and the ability to tailor government initiatives to address local concerns. State law on local gov- ernment authority seeks to balance these benefi ts of local control against the risk that localities will exercise their authority in parochial and exclusionary ways.

local administrative rulemaking: the interplay between local government law and state administrative law That cities innovate in public health at all is remarkable. They have less to gain fi nancially from more stringent regulation than higher levels of government, which shoulder more of the burden of Medicare and Medicaid. Cities are supposed to fear mobile capital fl ight: if they regulate, businesses will leave. Moreover, because innovation is costly and likely to be copied by others when success- ful, a free-rider problem might inhibit local policy innovation generally. Cities’ prolifi c regulation in the public health sphere in spite of countervailing predictions thus demands an explanation.

— Paul A. Diller, “Why Do Cities Innovate in Public Health?,” 2014

At a time when federal regulation to protect the public’s health has been stymied by legislative inaction and constraints on agency rulemaking, local governments have taken on a high-profi le role in “regulating to the detriment of politically powerful industries and their allies for the purpose of conferring diff use benefi ts on the public,” in the words of local-government law scholar Paul Diller.102 Big cities like New York, Boston, Baltimore, Philadelphia, and San Francisco and counties like King County, Washington, and Santa Clara County, California have

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become crucial innovators with respect to tobacco control and healthy eating regulations in particular. In some cases, innovative measures have been adopted by the local legislature, but in others the board of health has acted pursuant to its own authority. As the discussion of the New York City portion rule in box 5.3 illustrates, the authority of local agencies is determined by a complex interplay between state level local government law and administrative law.

delegation, democracy, expertise, and good governance

The ideal of local governments as “laboratories of democracy” is a familiar narrative for public health. It is diffi cult to see how the nation could pursue bold public health governance without imagination and experimentation. But local government autonomy can sometimes have negative implications for public health. Given the choice, many local

photo 5.4. Introduction of the portion rule for sugary drinks in New York City on May 30, 2012. Mayor Michael Bloomberg and the deputy mayor for health, Linda Gibbs, held a press conference to discuss the impact of sugary drinks on health and a proposed rule to limit the portion size to sixteen ounces for sugary drinks sold in food service establishments. The measure was ultimately struck down by the New York Court of Appeals on state administrative law grounds. Chang W. Lee/The New York Times/ Redux (reprinted with permission).

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box 5.3 The “Big Gulp” Ban: Expertise and Accountability in the Fight over New York City’s Sugary-Drinks Portion Rule

In 2012, New York City Mayor Michael Bloomberg held a press con- ference that made headlines around the world. Flanked by public health experts at a table stacked with extra-large cups and sugar cubes representing the added sugars that sodas typically contain, Bloomberg announced a new approach to reducing obesity and preventing diabe- tes and heart disease. The city’s board of health (BOH), made up entirely of mayoral appointees, amended the health code to provide that a licensed “food service establishment may not sell, off er, or pro- vide a sugary drink in a cup or container that is able to contain more than 16 fl uid ounces.”1 The rule defi ned a sugary drink as one that: (1) is nonalcoholic; (2) is sweetened with a caloric sweetener; (3) contains more than twenty-fi ve calories per eight fl uid ounces; and (4) does not contain more than 50 percent milk or milk substitute.2 Like other res- taurant health code provisions, the portion rule would have been enforced via a system of inspections and fi nes, with a maximum pen- alty of two hundred dollars per inspection.3

The ensuing public debate was fi erce, with opponents ridiculing Bloomberg as a “nanny” and criticizing the apparently arbitrary nature of the rule. The board stated that it chose sixteen ounces (a portion size that is widely available but often marketed as a small or child’s size) as the designated maximum portion to balance health impacts with eco- nomic considerations.4 The ordinance excluded retail stores and alco- holic beverages because the city does not have clear jurisdiction over them: the State Department of Agriculture and Markets regulates New York City food retail stores (e.g., bodegas and supermarkets), while the State Liquor Authority regulates alcoholic beverages.

Almost immediately, industry challenged the lawfulness of the por- tion rule. Although the intense public discourse focused on matters of liberty and paternalism, the suit raised predominantly administrative law questions. A legal challenge based on economic freedom would have been a nonstarter, given that there is no constitutionally protected right to buy or sell a commercial product in a particular confi guration.

Ultimately, the New York Court of Appeals held that the portion rule exceeded the scope of the BOH’s authority: “By choosing among

1. NYC Health Code § 81.53(b). 2. Id. at § 81.53(a)(1). 3. Id. at § 81.53(d). 4. New York City Department of Health and Mental Hygiene, Board of Health,

Notice of Adoption of an Amendment (§81.53) to Article 81 of the New York City Health Code, available at www.nyc.gov/html/doh/downloads/pdf/notice/2012/notice-adoption- amend-article81.pdf.

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competing policy goals [public health, economic consequences, tax implications, and personal autonomy], without any legislative delega- tion or guidance, the Board engaged in law-making and thus infringed upon the legislative jurisdiction of the City Council.”5 The court emphasized that “in deciding to use an indirect method—making it inconvenient, but not impossible, to purchase more than 16 fl uid ounces of a sugary beverage while dining at a food service establish- ment—the Board of Health rejected alternative approaches, ranging from instruction (i.e., health warnings on large containers or near vending machines) to outright prohibition.”6

The lower courts had specifi cally faulted the BOH for taking eco- nomic considerations (which are beyond the public health expertise of board members) into account in developing the portion rule.7 Admin- istrative law scholars criticized this judicial view of the nondelegation doctrine, claiming it required “agencies to ignore common sense by pursuing their regulatory mission with single-minded ferocity. One is tempted to ask whether administrative law makes common sense ille- gal.”8 While affi rming the lower court decisions, the state supreme court took pains to clarify that its administrative law precedents “should not be interpreted to prohibit an agency from attempting to balance costs and benefi ts.”9

The portion rule debate highlighted the tensions between expertise- driven regulation and democratic representation. Some advocates insist that agency legitimacy and authority derive from “their exper- tise and [relative] freedom from industry capture, not their democratic bona fi des.”10 Under this view, agencies should have broader discre- tion to act within their sphere of expertise. However, other advocates conceive of public health action primarily as a manifestation of the democratic process: communities working together to create healthier living conditions.11 Laws that emerge from a democratic process are less vulnerable to legal challenge than equally paternalistic regulations adopted by agencies exercising delegated authority.12 Yet the question

5. N.Y. Statewide Coal. of Hispanic Chambers of Commerce v. N.Y.C. Dep’t of Health & Mental Hygiene, 23 N.Y.3d 681, 690 (N.Y. 2014).

6. Id. at 698. 7. N.Y. Statewide Coal. of Hispanic Chambers of Commerce v. N.Y.C. Dep’t of

Health & Mental Hygiene, No. 653584–2012, 2013 WL 1343607 (N.Y. Sup. Ct. Mar. 11, 2013), aff ’d, 23 N.Y.3d 681 (N.Y. 2014).

8. Rick Hills, “The Soda Portion Cap, Redux: Why Are New York City’s Agencies More Constrained Than Federal Agencies?,” PrawfsBlawg, July 30, 2013, http://prawfs- blawg.blogs.com/prawfsblawg/2013/07/the-soda-portion-cap-redux-why-are-new-york- citys-agencies-more-constrained-than-federal-agencies.html.

9. 23 N.Y.3d at 697–98. 10. Hills, “Soda Portion Cap.” 11. Lindsay F. Wiley, Micah L. Berman, and Doug Blanke, “Who’s Your Nanny?

Choice, Paternalism and Public Health in the Age of Personal Responsibility,” Journal of Law, Medicine and Ethics, 41, no. S1 (2013): S88–S91.

12. Scott Burris, “George at APHA I,” Bill of Health blog, November 12, 2013, http://blogs.law.harvard.edu/billofhealth/2013/11/12/george-at-apha-i/.

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persists: should executive agencies, on the presumption of greater expertise, be given leeway to intervene when politics prevent legisla- tive action? Or does agency overreach risk public backlash?13

Others argue that the comparative advantage of local agencies is speed, not expertise:

Local executives can act quickly to launch a quick policy experiment in a limited geographic area. The science justifying these experiments should follow rather than precede the local policy. . . . Yes, there is a danger that some local experiments will misfi re. . . . But the alternative might be that we remain locked in a status quo in which no one does anything, because the executive actors are bogged down by a judicially created quagmire of process and non-delegation canons, while the legis- lative actors are stuck in the gridlock of partisan acrimony and fear of risk-taking. A nation locked into such dreary regulatory uniformity by judicial demands for detailed legislative delegations of power cannot generate the data necessary to determine whether further legislation is a good idea. The likely result is a vicious circle of court-induced Catch-22: Courts suppress local experiments citing lack of high-quality data, but those local experiments are precisely the data needed for scientifi c expertise to determine the eff ects of those local policies.14

13. See Lawrence O. Gostin, “Bloomberg’s Health Legacy: Urban Innovator or Med- dling Nanny?” Hastings Center Report, 43, no. 5 (2013): 19–25, and subsequent exchange commentaries by Roger Magnusson; Peter D. Jacobson and Wendy E. Parmet; David P. Borden; Emily Whelan Parento; and Michelle M. Mello and David M. Studdert, Hastings Center Report, 44, no. 1 (2014): 3–8.

14. Ethan Leib, “Local Separation of Powers?” PrawfsBlawg, March 15, 2013, http:// prawfsblawg.blogs.com/prawfsblawg/2013/03/local-separation-of-powers-.html.

governments would probably opt out of state and federal regulations in order to attract business interests to their jurisdiction. Lack of federal supremacy over state law and state supremacy over local law could easily result in a race to the bottom. Similarly, while ample agency power is important for achieving public health goals, it is also troubling and per- plexing in a constitutional democracy. The very strengths of public health agencies (e.g., neutrality, expertise, and expediency) can become liabilities if they appear politically unaccountable and aloof from the real concerns and needs of the governed. This is why governors’ offi ces, rep- resentative assemblies, and courts struggle over the political and consti- tutional limits that should be placed on agency action.

Courts and legislatures contemplating the proper limits of agency and local government authority should be guided by essential principles of good governance. In particular, administrative law and local govern- ment law should be developed and interpreted in ways that promote

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civic participation and public accountability while preserving a legiti- mate role for administrative expertise. Public health offi cials should encourage the input of interested parties in the formulation of policy. Responsiveness to citizens’ concerns is a crucial aspect of fairness and justice. Civic participation also gives citizens a stake in their own health so that they can take responsibility for their behavior and provide mutual support for members of their community.

Striking the balance between civic engagement and the legitimate role of scientifi c expertise is a central quandary in public health law. It is no easy task. In 2010, for example, the Washington Supreme Court grappled with diffi cult questions regarding the relationship of local gov- ernment to the electorate in a case where public risk perception clashed with mainstream scientifi c expertise.103 The Port Angeles city council, acting on long-standing expert opinion that the risks of water fl uorida- tion are outweighed by the benefi ts, and working in partnership with a public health foundation, voted to fl uoridate the local water supply. In response, community groups sponsored two citizen initiatives to halt fl uoridation. The city council refused to place these initiatives on the ballot and sought a declaratory judgment from the state courts that they were invalid, in part because the state had vested responsibility for the local water system with the city council, rather than with the city itself. The Washington Supreme Court ultimately sided with the city council, fi nding that the initiatives were beyond the reach of a local ballot initia- tive. Good government is both evidence-based and accountable to the electorate. Courts face diffi cult choices when these commitments are in tension with one another.

Public accountability certainly occurs through a democratic process as the public considers public health policies at the ballot box. But it also comes from checks and balances among the three branches of gov- ernment. Thus, public health offi cials are politically accountable to the chief executive, must act within the scope of legislative authority, and are subject to judicial oversight. Public accountability also comes from having to justify government decisions to the public generally and to aff ected communities in particular. Finally, public accountability comes from protection of whistle-blowers—people within agencies who speak out about illegal, improper, or secretive conduct. Since the public can- not know when public offi cials are concealing important information, it is imperative to encourage insiders to reveal matters of public concern.

Particularly in recent decades—under the infl uence of anti–public health spin by regulated industries—many people have begun to view

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policy makers who pursue innovative public health measures as over- reaching nannies. In an ideal world, public health laws and policies should not be seen as an imposition by external forces on a resistant public but rather as “what we as a society do collectively to assure the conditions in which people can be healthy.”104 The resonance of this positive, participatory vision of public health in the face of well-funded industry opposition will be determined in part by the extent to which public health agencies and other relevant government entities adhere to principles of good governance.

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