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M2abPowersofStateGovernmentsandConstitutionalDiscretion4.ppt
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State/Federal powers

  • U.S. Constitution enumerates powers of federal government
  • States retain powers not granted to federal government, but federal government is not limited only to only those explicit in the constitution & Interstate Commerce Clause
  • Interstate Commerce allows federal government to regulate commercial activity when it crosses state boundaries.

Interstate Commerce and Constitution

  • States have Tenth Amendment powers (health, education, policing, welfare)
  • Federal government has enumerated powers (defense, immigration)
  • Interstate Commerce Clause: When commerce crosses state lines, federal government can regulate that commerce. Results in seemingly dual state and federal regulation. Cannot force commerce (not make citizens eat broccoli) but can regulate existing commercial activity.


States’ rights or “police powers” as written in 10th Amendment of U.S. Constitution

  • Constitution grants any authority a state needs, but not obligates it, to legitimately preserve order and ensure the public health, safety, welfare, and morals
  • May not conflict with federal role as identified in the U. S. constitution.
  • May not abridge constitutional rights of individuals

Police Power and Individual Rights

  • May not abridge individual rights per 5th and 14th amendments

  • Rights in 14th and 5th amendments can be procedural (fair, reasonable, due process)

or

  • Substantive (freedom of speech, religion, and freedom from cruel and unusual punishment)

State Authority v Individual

  • When a state exercises its Tenth Amendment authority, an individual may contest that authority.
  • The court cases resolving those challenges have become established law.
  • States can require individuals to be vaccinated, wear masks or helmets, quarantine, hold licenses, attend school, have insurance, wear seat belts, etc.

Jacobson vs. Massachusetts (1905)

  • Compulsory small pox vaccination for adults upheld by Supreme Court citing
  • States may “enact health laws of every description” and “such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety.” Only need a “common belief” to do so.
  • Massachusetts had not violated the sphere of privacy.

State Police Powers that have been upheld over individual rights challenges

  • Examine, quarantine, and treat people with contagious diseases
  • Confine civilly the mentally ill and mentally retarded (intellectually disabled)
  • Require medical exams & vaccinations for children before school admission
  • Compulsory exam before marriage
  • Exams of people in certain occupations
  • Comply with fire and safety regulations

Other Cases

  • Helmet and seat belt laws: Consistently and unanimously held that state has power to control and regulate the use of the highways.
  • Reasoning to uphold helmet, seat belt law
  • Protect the individual (paternalistic)
  • Affects third parties
  • Protect public from economic burden (usually cited)

Buck v. Bell (1927)
Compulsory Sterilization

  • Virginia law allowing state to sterilize mental patients was upheld because:
  • “…many defective persons who if now discharged would become a menace but if incapable of procreating might be discharged with safety and become self-supporting with benefit to themselves and to society and ...heredity plays an important part in the transmission of insanity.”

Buck v. Bell (1927) con’d

“It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. (Jacobson) Three generations of imbeciles are enough.”

Buck v Bell

  • The cases may reflect out of date science and language from earlier time periods.
  • Current cases and enacted law are based upon the legal foundation of these historical cases.

Modern position on sterilization

  • Recent decisions never openly disagreed with Buck v. Bell
  • States theoretically have power to sterilize, but must justify a compelling reason
  • Some courts have stopped sterilization seeing it as punitive.
  • Some regard it as cruel and unusual.

Modern view of sterilization by courts

  • State must have a “compelling government interest” and show this remedy is the only one available and stand up to “close scrutiny” from the court since a right involved.
  • Court did not define what constitutes a state interest, and leaves door open for sterilization.

Compulsory Medical Treatment

  • Minors are “incompetent” to make legal decisions
  • Parents or guardians generally empowered to decide on behalf of child, respecting autonomy of family
  • When child’s health, well-being, or life threatened, every state allowed to assume custody or guardianship over objections of parents for some period.

Compulsory Medical Tx

  • Courts uphold states authority to provide medical treatment over objections of parents, even when based on religious grounds.
  • Parents can be criminally punished
  • Courts take active role in closely examining laws that limit parental role, especially on religious basis

Guardianship for adults who are legally incompetent

  • Guardianship is primary mechanism to provide involuntary medical treatment for adults with physical/mental disabilities unable to make informed decisions
  • Courts have unanimously upheld legitimacy of this procedure

Constitutional Discretion of the State and Federal Governments to Limit Social Welfare Benefits

M2b

Summary of Social Welfare in the U.S.

  • Labeled a complicated and fragmented patchwork of services understood by history of legal and political controversy.
  • Generally inadequate and inequitable
  • Categorically based, not need based

Federal Social Services

  • Social security and unemployment benefits created for financial security.
  • Medicaid and Medicare started in 1965
  • Universal healthcare laws never enacted in U.S. Even physicians in the American Medical Association (AMA), fought federal involvement in national health insurance, calling it “socialized medicine.”

State Level Social Services

  • Tenth Amendment of constitution grants states the authority but no obligation to offer education, police protection, health, or welfare services.
  • State discretion results in patchwork of fragmented services.
  • Citizens have no legal right to services.

History

  • Some states address wise allocation of limited resources, sometimes just cutting costs by cutting services
  • Decisions by states can be based not on how much is enough, but by politics and ideology
  • Eligibility is a political and legal privilege
  • And can be taken away

Two Tier Test

  • When a state enacts a law under its Tenth Amendment authority and an individual challenges it in court, how might the court approach resolving the dispute?
  • If there is a right involved determines how closely the court scrutinizes the law.

Shapiro v Thompson (1969)

  • Supreme Court: Decided making someone wait (residency) to get welfare was government discrimination prohibited by the Equal Protection Clause of the 14th Amendment.
  • Outcomes:
  • Cannot put burden on new residents as it prohibited right to travel freely
  • Cannot favor “old residents” over “new”
  • State can reduce costs if compelling interest and constitutional
  • Courts will have broad role in reviewing social welfare legislation

Two Tier Test established in Shapiro v.Thompson

Does legislation of state affect constitutionally protected right or‘fundamental interest’ or create suspect classifications?

If so, court will closely scrutinize the purpose of the state and the means for achieving those purposes and hold constitutional only those where state has a‘compelling interest.’

2. Where no ‘fundamental interest’ is involved, court must find only that the state legislation is rationally related to a legitimate purpose.

Two tier (short version)

  • Two Tier Test
  • Tier One:
  • Court first asks, “Is there a fundamental right involved?”
  • Tier Two:
  • If so, courts apply close scrutiny and state must show a compelling interest.
  • If not, state only needs to be rational or reaonable.

.

Dandridge v Williams (1970)

  • Since 1970’s court has found few fundamental rights involved in state authority, so the rational, not the close scrutiny, has been typically applied. Court has not subjected states to much close scrutiny.

Other cases applying two tier test

  • Fullington v Shea (1971)
  • Colorado allowed to use Medicaid only to categorically needy, not medically needy.
  • San Antonio Schools v Rodriquez (1973)
  • Texas schools allowed to fund districts resulting in ‘poor’ districts. Education is not a fundamental right, so state law only had to be rational, the Supreme Court held.

Other cases applying two tier test

  • Memorial Hospital v Maricopa (1974)
  • Residency requirement for state medical care unconstitutional (like Shapiro)
  • Saenz v California (1999)
  • Not allowed to limit new residents to a benefit amount equal to that they received in the state they came. Required state to show compelling interest and meet close scrutiny.

Two tier test of equal protection & government funding for abortions

  • Right to life lobby resulted in states amending Medicaid to limit funding for abortions to medically necessary
  • Beal v Doe & Maher v Roe
  • Upheld state laws restricting Medicaid funding of abortions
  • Does this lack of funding by Medicaid disadvantage impede a fundamental right? If not, state law only has to be rational.

Hyde amendment & Harris v McRae (1980)

  • Restricted use of any federal dollars for abortion unless life of mother threatened or rape or incest.
  • Was argued this violated right to privacy, but restriction held constitutional
  • Can have abortion, but not constitutionally entitled to funding for it, i.e. no fundamental interest recognized
  • Used 2 tier basis—no fundamental right to dollars for abortion, therefore only required to be rational

Two Tier Test & Gov’t Discretion to limit/condition spending programs

  • Webster case upheld state limiting public employees in abortion activity and limiting use of public facilities in abortion. Right of privacy not limited if public people or buildings are not available. Can still get abortion.
  • Rust v Sullivan (1971) a regulation from DHHS forbid Title X employees or money from supporting abortion.
  • Was upheld as not affecting privacy interest or decision to have abortion.

Rust v. Sullivan (1991)(Con’d)

  • Plaintiffs argued that ‘gag rules’ on Title X funded employees prohibited speech concerning abortion.
  • Chief Justice Rehnquist’s response for majority of court was employees free speech is not violated by government as employees can advocate and promote abortion on their own time, but not under auspices of Title X funding or employment.

DeShaney v. Winnebago County Department of Social Services (1989)

  • Victim of child abuse cannot sue state for the state failing to take action against his abusive parent.
  • Constitution confers no affirmative right to an individual to get government aid even where such aid may be necessary to secure life, liberty or property interests

Constitutional right to health care?

  • Constitutionally government can omit Medicaid or other government programs or not provide medical assistance, whether funding it or providing it directly.
  • No constitutional right to health care, at least under the federal Constitution? Did Affordable Care Act give Americans right to healthcare?

Qualifiers to government funding limitations

If government decision can be characterized as a penalty or obstacle to right, it can be unconstitutional

-Denying eligibility to someone who exercises a constitutional right would be viewed as imposing a penalty on that person.

  • Government can choose to not fund the exercise of a fundamental interest, but cannot use funding to penalize those who do so with their own resources.
  • Government can use the powers of the purse to penalize other activities that to do not involve constitutionally protected rights or fundamental interests.

Legal bases to challenge government decisions in social welfare situations

States must comply with federal statutory requirements such as those that come with voluntary participation in Medicaid

States must comply with own statutes and constitutions. Some states held referendum votes resulting in denial of same sex marriage. That vote was then in some states overturned by courts as contradicted by that state’s constitution.

Applications

  • Does testing Medicaid recipients for illegal drug use violate individual right to privacy?
  • Can we deny Medicaid from those (and the family) who are found using illegal drugs?
  • Can we deny their right to vote if Medicaid recipient found using illegal drugs?

Future

  • Court seems to respect its role in balance of powers, even if it sees the individual merits of a case, deflecting controversies over abortion funding and welfare limits from the courts to the political arenas of the state and federal legislatures, where some Court members thinks it belongs

  • Slides developed in part using Wing’s The Law and the Public’s Health, 7th ed. 2007