Health Policy and Law Basics

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law is made, and once made, laws are not hidden from us; to the contrary, they are discussed in the media and catalogued in books and online services available for public consump- tion. (Indeed, one is expected to know what the law is, since its violation can have potentially severe consequences.) If you want to know more about law than the average person, you can study it formally in law and other schools, or you can consult with one of the million or so lawyers in practice today. In other words, although law is complicated, it is equally accessible in a way that may not be clear at first blush.

Furthermore, beyond the law’s sheer pervasiveness lies another simplicity: As the quotation at the outset of this chap- ter implies, the study of law is in essence the study of human beings, particularly their evolving customs, beliefs, and value systems. Because law is the key tool with which we regulate social behavior, it stands to reason that it also reflects our foremost values and normative standards. Indeed, law “takes an understanding, a norm, an attitude, and hardens it into muscle and bone”4(p29); however, this is subject to change, for as our society evolves, so too does our law. A relevant example of legal evolution can be seen in the updating of state public health laws, which before the tragic events of September 11, 2001 and the subsequent anthrax scare had not been updated in most states for over a century. Soon after the 2001 attacks, however, many states, concerned about new risks to the pub- lic’s health, reviewed and overhauled these laws.5

This chapter begins by briefly considering the role law plays in everyday life, and then turns to defining law and describing its multiple sources. It then discusses several key features of the legal system, including the separation of government powers, federalism, the role of courts, due process, and more.

LEARNING OBJECTIVES

By the end of this chapter, you will be able to:

Describe the role of law in everyday life•

Define the term • law

Identify the various sources of law•

Describe key features of the legal system•

“It is perfectly proper to regard and study the law simply as a great anthropological document.”

—Former U.S. Supreme Court Justice Oliver Wendell Holmes1(p 444)

IntroductIon The importance and complexity of law and the legal system in the United States cannot be overstated. Law’s importance stems from its primary purpose: to function as the main tool with which we organize ourselves as an advanced, democratic society. The complexity of law and the legal process is a func- tion of the multiple sources of law that may apply to any one of the millions of actions and interactions that occur daily in society, the division of legal authority between the federal and state governments and among the branches within them, the language the law and its players use to express themselves,a and more. For all its complexity, however, there is also an un- deniable pervasiveness and openness when it comes to law. We are not left to wonder where it comes from or how it is made. Generally speaking, we are privy to lawmakers’ rationales for the laws they write and to judges’ reasoning for their legal opinions, just as we are generally privy to the process by which

Law and the Legal System

chapter 3

grounded in a legal system designed to affirmatively produce outcomes based on fairness, justice, and equality.6

The main way the law governs the many kinds of rela- tionships in society is to recognize and establish enforceable legal rights and responsibilities that guide those relationships, and to create the institutions necessary to define and enforce them. Take constitutional law, for example. Constitutions are charters establishing governments and delineating certain in- dividual and governmental rights and obligations. However, constitutional provisions are triggered only when one party to a relationship works for or on behalf of the government, whether federal or state. Thus, constitutional law governs the relationship between individuals and their government—not, for example, the relationship between two private parties, even when one party’s actions are clearly discriminatory or wrong- ful. Thus, it takes affirmative action by a governmental actor to trigger constitutional protections. So, although it would be a violation of a public school student’s First Amendment right to be forced by his principal to pray in class, forced prayer in private schools passes constitutional muster.

A legal right (constitutional or otherwise) denotes a power or privilege that has been guaranteed to an individual under the law, not merely something that is claimed as an interest or something that is a matter of governmental discretion. Conceptually, legal rights derive from the fact that the gov- ernment sometimes creates what are called individual “prop- erty rights”—a generic term referring to an entitlement to personal or real property—for specified groups of persons.7 Importantly, legal rights also presuppose that their enforce- ment can be achieved through public institutions, including state and federal courts, because a person’s ability to secure a remedy when a legal right is infringed (e.g., denied, reduced, or terminated) goes to the very heart of what it means to be “en- titled” to something. Indeed, whether particular healthcare benefits rise to the level of being a legal “right,” and whether the healthcare right can be enforced in court, are two of the most fundamental legal questions in the area of healthcare law. For example, the federal Medicare program for the aged and disabled confers on eligible individuals not only the right to healthcare services, but also the ability to enforce their right to benefits when program violations occur.

the defInItIon and SourceS of Law defining “Law”

Although many legal scholars agree on the general function of law in society, there is far less consensus on how to define “the law.” As with many legal terms, there are several plausible interpretations of what is meant by the law, and thus there is

For some, reading this chapter may bring to mind a course you have taken or a book you have read on civics or government. In this case, the chapter should serve as a helpful refresher. For those of you new to the study of law, consider the following pages a condensed, but important, introduction to one of the most critical and influential aspects of the society in which you live. In either event, this chapter is designed to better position you to understand the law’s application to the specific fields of health care and public health and to digest the health policy and law concepts discussed in this textbook.

the roLe of Law The law reaches into nearly every corner of American life. Its impact is inescapable from the moment you wake up to the time you go back to sleep at night (and perhaps beyond, if your community has a curfew or other means of controlling activity and noise after dark). Have you ever stopped to think about the regulations pertaining to the flammability of the mat- tress you sleep on, or the safety of the water you shower with, cook with, and drink? How about the consumer protection laws regulating the quality of the food you eat throughout the day, and the quality of the establishments that serve it? Then there are the laws pertaining to the safety of the cars, buses, and subways you travel in each day, and the traffic laws that control their movement. You encounter laws daily pertain- ing to the environment, property ownership, the workplace, civil rights, copyright, energy, banking, and much more. And these are just the laws implicated by the relatively mundane actions of day-to-day life. Steering into activities that are not as common—say, international travel, or adoption, or being admitted to a hospital—you encounter the law swiftly and noticeably. If you need final proof of the ubiquitous nature of law, pick up today’s newspaper and count how many stories have some sort of legal angle to them. Then do it tomorrow and the next day. What you will almost certainly find is that a great majority of the stories concern law or legal process.

The law’s pervasive nature is no surprise, given the im- portant societal role we assign to it—namely, to serve as the tool with which we govern our relationships with one another, our government, and society at large. A society as sprawling and complex as ours needs formal, enforceable rules of law to provide a measure of control (for example, the need to regulate entities or actions that are potentially dangerous or invidious—a polluting power plant, or acts of discrimination based on race or gender). Furthermore, many people believe that law should be used not just to organize and control the society in which we live, but to achieve a more just society; in other words, according to this view, the country’s key organiz- ing principle should not simply be grounded in law, but rather

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primary laws. This section discusses each of the four types of primary sources of law.

Constitutions

A constitution is a charter that both establishes a government and delineates fundamental rights and obligations of that government and of individuals who fall within the territory covered by the constitution. In this country, there is a federal constitution and separate constitutions in each of the 50 states. The Constitution of the United States, completed in 1787 and subsequently ratified in each of the original 13 states, took effect in 1789. It provided for a federal union of sovereign states, and a federal government divided into three branches (legislative, executive, and judicial) to operate the union. This governmental structure was not easily agreed upon. Prior to the creation of the federal Constitution, the colonies of the American War of Independence first adopted, in 1777, the Articles of Confederation, which represented the first formal governing document of the United States and which were rati- fied in 1781. However, a defining feature of the Articles was a weak national government; fairly quickly, a movement for a stronger central government took hold, the colonies elected to throw out their original plan, and the Constitutional Con- vention—and with it the Constitution—was born.

The federal Constitution is rather short and, for the most part, quite general. One explanation for this is that the fram- ers of the Constitution viewed it as a “document for the ages” that needed to include enduring principles to serve a growing, evolving society that has certainly proved to be more complex than it was at the time of the Constitution’s ratification. In the words of former U.S. Supreme Court Justice Robert Jackson, the Constitution is a compilation of “majestic generalities” that collect meaning over a span of many years.8

But the fact that some of the most important constitu- tional provisions are written in broad terms leads to many thorny legal controversies, because there are many compet- ing approaches and theories as to how courts should interpret ambiguous constitutional phrases. Broadly speaking, the lead- ing approaches to constitutional interpretation include the “living constitution,” the “moral constitution,” “originalism,” and “strict constructionism.” The living constitution model reflects a belief that the broadly written Constitution should be interpreted to reflect current moral, political, and cultural values in society, not the values that were predominant at the time of the Constitution’s ratification. Under this view, the meaning of the Constitution is not fixed, but instead evolves along with society. Moral constitutionalists infuse their inter- pretation of constitutional law with principles of moral philos- ophy. Originalism, technically, is an umbrella term referring

no single way to correctly define it. For example, Black’s Law Dictionary includes the following definitions in its primary entry:

That which is laid down, ordained, or estab- lished. A rule or method according to which phenomena or actions co-exist or follow each other. Law, in its generic sense, is a body of rules of action or conduct prescribed by controlling authority, and having binding legal force. That which must be obeyed and followed by citizens subject to sanctions or legal consequences is a law.3(p 884)

However, even these commonly accepted definitions are not entirely satisfactory, because “a body of rules” that “must be obeyed” in the face of “sanctions or legal consequences” necessarily envisions a process by which the rules are created, disseminated, enforced, violated, disputed, interpreted, ap- plied, revised, and so on. Considered in this way, “the law” essentially amounts to a “legal system”—and a system, by definition, entails regularly interacting or interdependent parts and subparts coming together to form a functional, unified whole. As you read this text, think of “the law” not just as words on a page or as codified statutes or regulations, but as the many interacting parts that are involved in draft- ing those words and statutes in the first place, and in bringing them to life once they have been enacted as laws. Note that this broad conceptualization of law as a system squares nicely with the primary purpose of law described above, since there must, by necessity, be a sizeable system in place if law is going to carry out its role as the primary organizing tool in society. This broad definition of law also encompasses key legal doc- trines, like separation of powers and federalism, described later in this chapter.

Sources of Law

Regardless of the breadth of the definition attached to the term law, there is an essential truth to the fact that at the core of the nation’s expansive legal system lays a body of enforceable written rules meant to maintain order, define the outer limits of our interactions with one another and with our govern- ments, and delineate legal rights and responsibilities. These rules derive from several sources, which collectively are called primary sources of law. The sources of primary legal author- ity include constitutions, statutes, regulations, and common (i.e., judge-made) law. There are also secondary sources of law, which are not laws in the technical sense, but rather are a collection of treatises, law review articles, reports, legal en- cyclopedias, and more that analyze, interpret, and critique

The Definition and Sources of Law 33

under current U.S. Supreme Court case law, the death penalty does not always violate the federal Constitution, but the Mas- sachusetts Supreme Court has ruled that the death penalty is prohibited under the state’s constitution in every instance. Maryland’s constitution requires that a jury be unanimous in order to convict a person of a crime, a standard that differs from federal criminal law. Furthermore, state constitutions are amended much more easily and frequently than their federal counterpart. For instance, Georgia’s constitution has undergone some 650 amendments.4(p34) Compare this with the fact that the language of the federal Constitution has not been dramatically altered since its inception—there have been just 27 amendments, and the 10 that make up the Bill of Rights were all added by 1791.

Statutes

Statutes are laws written by legislative bodies at all levels of government (federal, state, county, city) that, generally speak- ing, command or prohibit something. It is the fact of their being legislatively created that sets them apart from other sources of law, because legislatures are understood as creating laws that are forward-looking and apply to large numbers of people. Indeed, the two hallmarks of statutes are their pro- spectivity and generality. These hallmarks result mainly from the fact that legislatures are in the “regulation business” across an enormous array of issues, and as a result, legislators often lack both the time and the substantive expertise to regulate other than in broad fashion.

Because statutes tend to be written as broad policy state- ments (and because words on a page can never communicate intent with absolute accuracy), there are few statutes that are utterly unambiguous. This, coupled with the fact that our evolving society continuously presents situations that may not have been foreseeable at the time a statute was written, results in the need for courts to interpret and apply general statutes to millions of specific legal cases or controversies. This practice is called “statutory construction.” Although it is a tenet of the separation of powers doctrine (discussed later in the section on key features of the legal system) that legislatures represent the law-making branch of government and the judiciary’s role is to interpret law, it is commonly un- derstood that judges and courts “make” law as well through statutory construction, because the continual interpretation and application of broad policy statements (i.e., statutes) can put a “gloss” on the original product, potentially altering its meaning over time.

As discussed more fully below in the section on feder- alism, state legislatures have greater ability than does Con- gress to use statutes to regulate across a broad range of issues,

to a small group of constitutional interpretation theories, all of which share a common belief that constitutional provisions have a fixed and knowable meaning. For example, “original intent,” one well-known theory under the originalism um- brella, adheres to the position that constitutional interpreta- tion should be consistent with the intent of the Constitution’s original drafters. Finally, strict constructionists limit their interpretation to the Constitution’s actual words and phrases, and decline to consider contextual factors such as shifts in societal values or the commentaries or intent of the framers. The most well-known interpretational controversy in the area of health pertains to the breadth and reach of the due process clause of the federal Constitution’s 14th Amendment, which prohibits states from depriving “any person of life, liberty, or property, without due process of law.”9 This provision rests at the heart of the Supreme Court’s “right to privacy” jurispru- dence, including the right to obtain an abortion. For readers interested in theories of constitutional interpretation, there is a vast body of literature at your disposal.10

One of the general principles underpinning the Con- stitution is that citizens should not be subjected to arbitrary and oppressive government. Given that the Constitution was drafted on the heels of the Revolutionary War, this is no surprise. But one consequence of the prevailing mood of the framers toward the reach of a national government is that they drafted the Constitution with an eye toward limiting federal government, as opposed to viewing the Constitution as a ve- hicle for extending benefits to the public—in other words, that “[t]he men who wrote the Bill of Rights were not concerned that government might do too little for the people but that it might do too much to them.”11 This helps explain why sev- eral key constitutional provisions were drafted in “negative” terms—the First Amendment prohibits government from abridging free speech, the Fourth Amendment makes unrea- sonable searches illegal—rather than as conferring positive rights, like a generalized right to receive healthcare services. At the same time, the First and Fourth Amendments, along with eight others, make up the Bill of Rights, a series of im- portant, specifically guaranteed rights in the Constitution the framers believed to be inalienable.12

In addition to the federal Constitution, each state has its own constitution. All state constitutions are like the federal one in that they provide for the organizational structure of the particular state’s government, and all contain some mea- sure of a state bill of rights. Here the similarities can end, however. Although state constitutions cannot limit or take away rights conferred by the U.S. Constitution (or by federal statutes), some state constitutions go further than federal law in conferring rights or extending protections. For example,

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provides procedural restrictions for agency rulemaking and adjudication. Compared to state administrative procedure acts, which tend to be technical and detailed, the APA is broad and sweeping, thus relatively more ambiguous and open to various interpretations by federal courts.16 Once Congress del- egates rulemaking authority to an executive branch agency via a statute (known as the “enabling statute”), the APA dictates how the agency must go about promulgating specific rules and regulations, unless the statute itself specifies the procedure an agency must follow. If the enabling statute dictates a formal rulemaking process, the APA requires the agency to follow cumbersome procedures, and it can only adopt rules after a trial-like hearing on the proposed rule. If Congress does not specify in an enabling statute how an agency must adopt rules, the APA permits the agency to follow a more informal rulemaking process. This requires the agency to publish the proposed rule in the Federal Register (the official daily publi- cation for rules, proposed rules, and notices of Federal agen- cies) and provide an opportunity for the public to comment on the proposed rule. The agency must take the comments under consideration (though it need not revise the proposed rule in response to them), and once it settles on a final rule, it must be published in the Code of Federal Regulations (which houses permanent federal regulations under 50 separate titles representing broad areas subject to federal oversight).

In delegating authority to an agency through an enabling statute, Congress must provide an “intelligible principle” that the agency can (and must) follow. That said, the amount of direction and discretion given to agencies varies widely. For example, the enabling statute for the Occupational Health and Safety Administration provides broad discretion by del- egating the authority to create and enforce workplace safety standards.17 Contrast this with the Americans with Disabili- ties Act, which has very specific provisions and does not allow agencies much discretion when implementing and enforcing the statutory language.

In addition to the power of rulemaking, Congress may also delegate adjudicatory and enforcement powers to ad- ministrative agencies. Adjudicatory power refers to claims of public rights, which are claims that involve private persons as one party and the government as the other party (exclud- ing criminal cases). Congress may set up a court, known as an administrative court, within an agency to adjudicate these claims. Because these courts are located in the execu- tive, rather than judicial, branch of government, they are not subject to the same rules and procedures as traditional courts, although they still must provide for the rights and protections prescribed by the Bill of Rights (e.g., the right to legal counsel). Administrative hearings are often much less

pursuant to states’ plenary authority under the Constitution. For instance, the number of state statutes regarding popula- tion health and safety (e.g., disease control and prevention, the creation of public health agencies, the ability of governors to classify public health emergencies) far exceeds congressional output on the same topic. Notwithstanding states’ broader regulatory power, however, federal statutes have primacy over conflicting state statutes.

Administrative Regulations

The fact that statutes are written in broad generalities has an- other consequence beyond their need to be interpreted and ap- plied in vast numbers of unique instances: Specific regulations must be written to assist with the implementation of statutory directives and to promote statutes’ underlying policy goals. This is where administrative agencies of the executive branch of government come in. Because these federal and state agen- cies—the U.S. Department of Health and Human Services, the U.S. Department of Labor, the California Department of Social Services, the Wisconsin Department of Commerce, and so on—are organized and created to deal with specific policy subject matters, they have more time and expertise than Con- gress or state legislatures to enforce statutes and promulgate regulations, rules, and orders necessary to carry out statutory prerogatives. It is important to note that assuming the process for creating the regulations was itself legal, and provided that the regulations do not stray beyond the intent of the enacted statute, regulations have the full force of law.

Administrative law is critically important in the area of health policy and law.13 For example, consider the Medicaid program, which functions primarily as a health insurance program for low-income individuals. The Medicaid statute embodies Congress’ intentions in passing the law, including standards pertaining to program eligibility, benefits, and payments to participating healthcare providers. Yet there are literally thousands of administrative regulations and rules pertaining to Medicaid, which over the past 40 years have be- come the real battleground over the stability and scope of the program. In a very real sense, the Medicaid regulations passed by the federal Department of Health and Human Services and state-level agencies are what bring the program to life and give it vitality. This “operationalizing” function of administrative law can be seen across a wide spectrum of important health issues, including the reporting of infectious diseases, the de- velopment of sanitation standards, and the enforcement of environmental laws.14

In order to be lawful, regulations must be proposed and established in a way that conforms to the requirements of the federal Administrative Procedure Act of 1946 (APA),15 which

The Definition and Sources of Law 35

importance and function of stare decisis in American law is discussed later in the section detailing the role courts play in maintaining stability in the law.

Although courts are expected to overturn their own prior decisions only in rare circumstances and lower courts can never overturn decisions by higher courts that have juris- diction over them, legislatures can modify or even overturn common law decisions interpreting statutes and regulations. Imagine that the U.S. Supreme Court interpreted a federal civil rights statute as protecting individuals from intentional acts of race discrimination, but not from conduct that has the unintended effect of discriminating against racial minori- ties. If Congress disagreed with the Court’s interpretation of the statute, it could effectively overturn the Court’s decision by amending the statute to make it clear that the law was intended to prohibit intentional discrimination and presum- ably neutral acts that nonetheless resulted in unintended dis- crimination. However, because the judicial branch has final authority to determine whether statutes violate the federal Constitution, Congress would be powerless to overturn a federal court decision that ruled the same civil rights statute unconstitutional.

Notice the “checks and balances” at play in this example, with one branch of government acting as a restraint on an- other. In the next section, we discuss the separation of pow- ers doctrine—including checks and balances—and other key features of the legal system. But first, see Table 3-1, which provides a summary of the sources of law.

Key featureS of the LegaL SyStem Recall the earlier description of the law as something more than just words on a page, something more than statutes and constitutional provisions. Although the laws themselves are obviously critical, they are just one component of a complex, interacting legal system that creates the laws in the first in- stance and brings them to life after they hit the pages of legal code books, texts, and treatises.

All legal systems rest on unique principles, traditions, and customs. This section describes a handful of the most important features and principles of the U.S. legal system, including the separation of powers doctrine, federalism, the role and structure of federal and state courts, judicial review, due process, and constitutional standards of review.

Separation of Powers

This country’s government, both federal and state, has an underpinning structure of three independent and equally powerful branches, a fact that sets it apart from parliamen- tary systems of government—such as those found in Canada,

formal than judicial trials: there are no juries, and although some evidence may be gathered through witness testimony, the majority of evidence derives from written reports. Deci- sions by Administrative Law Judges (known as ALJs) often do not represent the final word on the matter being adjudicated, as these decisions are subject to approval or rejection by the agency’s lead official, or by a traditional (judicial branch) fed- eral court. At the same time, federal courts generally apply a deferential standard of review to administrative decisions, reviewing only to see whether an agency has acted in an “ar- bitrary and capricious” manner.

The third type of authority granted to agencies by Con- gress is that of enforcement. As this authority already in- herently resides in the executive branch under the federal Constitution, Congress uses its power to specify which agen- cies have authority to enforce certain statutes and substantive areas of law.

Once Congress grants power to agencies to promulgate rules, adjudicate claims, and enforce statues, its ability to constrain agency action is limited. Because agencies are lo- cated in the executive branch, they are under the control of the President and Congress is limited to passing a new statute overturning the questioned agency action or investigating agency action for impropriety and making public the infor- mation obtained from the investigation.

Common Law

In each of the prior discussions about constitutions, statutes, and administrative regulations, we pointed out the general- ity and ambiguity of much of law, and the corresponding responsibility of courts to interpret and apply law to specific cases. It is via the common law—essay-like opinions written by appellate courts articulating the bases for their decisions in individual cases—that courts carry out this responsibility. Common law is also referred to as case law, judge-made law, or decisional law.

Common law is central to legal systems in many coun- tries, particularly those that were territories or colonies of England, which is how the United States came to rely on common law as part of its legal system. Both historically and in modern times, case law is premised on the traditions and customs of society, the idea being that courts could continu- ously (and relatively efficiently, compared to the legislative process) interpret and apply law in such a way as to match the values of a society undergoing constant evolution. At the same time, the common law is heavily influenced by legal precedent and the doctrine of stare decisis, which refers to the legal principle that prior case law decisions should be accorded great deference and should not be frequently overturned. The

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taBLe 3-1 Summary of the Primary Sources of American Law

Source of Law Key Points

Constitutions Establish governments and delineate fundamental rights and obligations of government and individuals. There is a federal constitution and separate constitutions in each state. Federal constitution restrains government more than it confers individual rights; however, the Bill of Rights

specifically guarantees several important individual rights. The Supreme Court has the final word on the constitutionality of laws created by the political branches of

government. Statutes Created by legislatures at all levels of government.

Two hallmarks: prospectivity and generality. As broad policy statements, statutes are often ambiguous as applied to specific cases or controversies, requiring

courts to interpret them through the practice of statutory construction. State legislatures can use statutes to regulate across a broader range of issues than can Congress; however, federal

statutes have primacy over conflicting state statutes. Regulations Created by executive branch administrative agencies to implement statutes and clarify their ambiguities.

Play a particularly critical role in health policy and law. Common Law Court opinions interpreting and applying law to specific cases.

Also referred to as case law, judge-made law, or decisional law. Based on the traditions and customs of society, yet heavily influenced by legal precedent and the doctrine of stare

decisis.

Germany, the United Kingdom, and many other countries—in which the legislature appoints the executive. The legal doc- trine that supports the arrangement of shared governance among multiple branches is the separation of powers doctrine. This doctrine is considered one of the most important aspects of both federal and state constitutional design. The framers of the U.S. Constitution were well aware that nothing was more likely to foster tyrannical government than the concentration of governing powers in one individual or political party. To guard against a concentration of political power, the framers did two related things: they divided governmental powers and responsibilities among separate, co-equal branches, and they structured the elections of officials for the two political branches of government (legislative and executive) so that they would take place at different intervals and through different mechanisms (e.g., the President is elected through the electoral college system, whereas members of Congress are not).

Inherent in the separation of powers doctrine is the im- portant concept of checks and balances. “Checks” refers to the ability and responsibility of one branch of government to closely monitor the actions of the other two, including when one branch grasps at an amount of power not envisioned by the Constitution. The “balance” at work in the separation of powers framework prevents one branch from exerting power in an area of responsibility that is the province of another branch.

The constitutional doctrine of separation of powers rep- resents, in the words of one legal scholar, an “invitation to struggle for the privilege”18(p171) of governing the country. (Alexis de Tocqueville, a French philosopher and political theorist who studied American government in the 1830s, viewed the concept of checks and balances in much starker terms: “The president, who exercises a limited power, may err without causing great mischief in the state. Congress may de- cide amiss without destroying the union, because the electoral body in which the Congress originates may cause it to retract its decision by changing its members. But if the Supreme Court is ever composed of imprudent or bad men, the union may be plunged into anarchy or civil war.”19(p152) ) For example, at the time of this writing, a debate is taking place in the media and between Congress and President Barack Obama over the meaning of separation of powers and the appropriate role of checks and balances in the context of the nation’s soaring debt and the appropriateness of raising the debt ceiling. Some columnists and policymakers maintain that the President can act unilaterally to raise the debt ceiling and allow the federal government to borrow more money, while others argue that such a move is beyond the scope of presidential power.

Throughout this text, there are health policy and law questions that distinctly highlight our government’s di- vided powers. For instance, how will the struggle between the Executive Branch and some members of Congress over

Key Features of the Legal System 37

immunization standards, infectious disease data collection mandates, and environmental hazard regulations. Further- more, under the 10th Amendment, states historically have had the power to regulate the practice of medicine and the licens- ing of hospitals and other health care institutions.

Recall, however, that the federal government also plays a role in regulating health care and public health. The national government’s enumerated powers include the ability to tax, spend, and regulate interstate commerce, all of which have been utilized in ways to improve health care and promote public health. For example, Congress has used its taxing power to increase the cost of cigarettes (in the hopes of driving down the number of smokers) and to generate funds for programs such as Medicare, and congressional spending powers are the legal cornerstone for federal health programs like Medicaid. Furthermore, the sharing of power under the 10th Amend- ment notwithstanding, the Constitution’s supremacy clause declares that federal laws—the Constitution, statutes, and treaties—are the “supreme” law of the land, and thus preempt state laws that conflict with them.23

While federalism is built solidly into the nation’s political branches through separate federal and state legislatures and executives, it is also on display in the structure of U.S. courts. There are both federal and state court systems, and each has unique authority and jurisdiction: federal courts are limited to ruling only in certain kinds of cases, including those in- volving federal constitutional or statutory law, those in which the United States is a party to the lawsuit, and those specified by statutory law; state courts, by contrast, have jurisdiction to hear just about any case (unless explicitly precluded from doing so by federal statute), including those over which federal courts also have jurisdiction. State court jurisdiction includes cases implicating state statutory and regulatory law, the state constitution, and the U.S. Constitution.

Over the years, defining the boundaries of federalism (i.e., defining the federal government’s sphere of authority and determining the scope of state sovereignty) has been a contentious legal and political issue. At the dawn of the coun- try’s independence, after the colonies scrapped the Articles of Confederation in favor of a stronger central government, the Supreme Court decided federalism cases with a nod to- ward expansive national powers (much to the dislike of some states). Two famous cases make the point. In the 1819 case of McCulloch v. Maryland,24 the Supreme Court enhanced the power of the U.S. government by establishing the principle that federal governmental powers are not strictly limited to those expressly provided for in the Constitution. At issue in the case was whether Congress had the power to charter a na- tional bank to help the federal government shoulder wartime

implementation of the Affordable Care Act—the former at- tempting to implement the law quickly and thoroughly, the latter trying to thwart implementation through fiscal, policy, and legal channels—play out? And how has the Supreme Court applied its constitutional right to privacy jurisprudence to the matter of abortion in response to federal and state legislative enactments? As you consider these and other health policy and law questions from a separation of powers angle, consider the peculiar roles of each branch of government, taking into account their duties, powers, and limitations. Through this prism, continually reflect on which governmental body is best equipped to effectively respond to health policy problems.20

federalism: allocation of federal and State Legal authority

In the legal system, the powers to govern, make and apply law, and effectuate policy choices are not just apportioned among three governmental branches at both the federal and state levels; they are also divided between the federal govern- ment and the governments of the various states. This division of authority—which also plays a key role in the development of health policies and laws—is referred to as federalism. Like the separation of powers doctrine, federalism derives from the U.S. Constitution.

Under the Constitution, the federal government is one of limited powers, while the states more or less retain all powers not expressly given to the federal government. In essence, this was the deal consented to by the states at the time our federal republic was formed: They agreed to surrender certain enu- merated powers (like foreign affairs) to the federal government in exchange for retaining many aspects of sovereignty.

The Constitution’s 10th Amendment states that “the pow- ers not delegated to the United States by the Constitution . . . are reserved to the States respectively.”21 For example, because the Constitution does not explicitly define the protection and promotion of the public’s health as a power of the federal government, public health powers are primarily held by the states. (In fact, compared to the federal government, the states handle the vast majority of all legal matters in this country. Consider just a sampling of typical legal affairs overseen by state government: marriages, divorces, and adoptions; law enforcement and criminal trials; schooling; driving, hunting, medical, and many other licenses; consumer protection; and much more.4(pp10–11) Furthermore, 97% of all litigation occurs in state courts.22) As a result, all states regulate the area of public health through what are known as their “police pow- ers,” which allow state and local governments to (among other things) legislate to protect the common good. Examples of the kinds of laws passed under this authority include childhood

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nationwide appellate jurisdiction over certain kinds of cases, such as patent and international trade disputes. For many individuals, losing a case in a federal circuit court represents the end of the line for their case, since litigants have no entitle- ment to have their case heard by the U.S. Supreme Court, the highest court in the country. Although parties have a right to petition the Supreme Court to hear their case, at least four of the nine justices on the Court must agree to grant the pe- tition. Although the Supreme Court is undeniably the most important court in the country in terms of its authority, it by no means renders the most decisions. The Supreme Court grants approximately 150 petitions annually, whereas the 13 circuit courts collectively decide approximately 62,000 cases annually. This fact is more than trivial; it effectively means that in the huge majority of federal cases, lower appellate courts, and not the Supreme Court, have final say over the scope and meaning of federal law.

As mentioned, each state also has its own court system, most of which are organized like the federal system: one trial court, followed by two separate appellate courts (generally termed “[name of state] court of appeals” and “[name of state] supreme court”). However, some state systems provide for only one appellate court. State systems also tend to include courts that are “inferior” even to their general trial courts; these handle relatively minor disputes (think of the small claims courts frequently shown on daytime television). Furthermore, state trial courts are sometimes divided by specialty, so that certain courts hear cases that involve only family matters, juvenile matters, and the like.

Within the federal and state court system hierarchy, ap- pellate courts have two powers unavailable to trial courts: reviewing lower court decisions to determine whether there were errors of law made during the trial that necessitate a new one, and establishing legal precedents that lower courts are bound to follow. But appellate courts lack trial courts’ pow- ers to actually conduct trials, including empanelling juries, hearing testimony from witnesses, reviewing evidence, and the like. Instead, appellate reviews are limited to the written record created at trial by the lower court.

Adjudication refers to the legal process of resolving dis- putes. It is in the context of resolving specific legal disputes that the judiciary interprets and applies the law, and also in- directly “makes” law under its common law authority. The re- sults of adjudication are the common law decisions described earlier. Because U.S. courts are generally not permitted to issue advisory opinions, courts effectively only act in response to a specific “case or controversy” brought before them. (Where permitted, advisory opinions are released by courts not in response to a particular legal dispute, but in response to a

debt. In 1824, the Court for the first time had the opportunity to review the Constitution’s commerce clause (which grants Congress the authority to regulate interstate commerce) in the case of Gibbons v. Ogden,25 which resulted from a decision by the state of New York to grant a monopoly to a steamboat operator for a ferry between New York and New Jersey. Again, the Court ruled broadly in favor of the federal government, stating that the commerce clause reserved exclusively to Con- gress the power to regulate interstate navigation.

By the mid-1800s, however, this approach to defining the relative power of the federal and state governments gave way to one that was more deferential to states and more willing to balance their sovereign interests against the interests of the federal government. This approach, in turn, lost ground during the New Deal and civil rights eras, both of which were marked by an acceptance of federal authority to pro- vide social services and regulate the economy. The arrival of Ronald Reagan’s presidency in 1981 marked yet another turning point in the evolution of federalism. For eight years, the Reagan administration acted to restrict national authority over the states, a process that took on even more force after the Republican Party took control of Congress in the mid- 90s. Indeed, since the early 1980s and continuing into the new millennium, a defining feature of federalism has been the purposeful devolution of authority and governance over social and economic policy from the federal government to state legislators and regulators.

the role of courts

Elsewhere, we have discussed the structure and powers of two of the political branches of government: the legislative and executive branches. The third branch is that of the judiciary, made up of justices, judges, magistrates, and other “adjudica- tors” in two separate court systems—one federal, one state. Although the federal and state court systems have critically distinctive authority, they do not look very different struc- turally. The federal court system has three tiers, with cases proceeding from the lowest-level court (a trial court) to two separate, higher-level courts (appellate courts). Federal trial courts are called district courts, and they exist in varying numbers in each state, with the size of the state determining the actual number of “districts,” and thus the number of fed- eral trial courts. In total, there are nearly 100 federal district courts. After a district court renders a decision, the losing party to a lawsuit is entitled to appeal the decision to a fed- eral circuit court of appeals. There are 13 U.S. circuit courts of appeals—12 with jurisdiction over designated multi-state geographic regions, or “circuits,” and a court of appeals for the federal circuit (residing in Washington, DC), which has

Key Features of the Legal System 39

Among the most important rights courts are expected to uphold and enforce is the constitutional right to due process, which protects individuals from arbitrary and unfair treat- ment at the hands of government. Both the Fifth and Four- teenth Amendments to the Constitution make clear that no person can be deprived of “life, liberty, or property, without due process of law,” with the Fifth Amendment applying to the federal government and the Fourteenth applying to the states. An important component of due process is the principle that when government establishes a legal right or entitlement for individuals, it may not then decide to deny the right or entitlement unfairly.

When courts consider due process claims, they are often thought of as reviewing how laws operate and why laws have been established in the first place. This results from the fact that the due process clause has been interpreted by the Supreme Court as including procedural due process (the “how”) and substantive due process (the “why”). Procedural due process requires that laws be enacted and applied fairly and equitably, including procedural fairness when individuals challenge government infringements on their life, liberty, or property. Thus, due process requirements might be triggered if a law is too vague or is applied unevenly, if government threatens to withdraw a previously granted license, or if an individual’s public benefits are withheld. For example, before a physician can lose his state-granted license to practice medicine, the state must provide the physician advance notice of the ter- mination and a formal hearing before an impartial examiner with all the usual legal trappings (right to legal representation, right to present evidence in one’s defense, right to appeal the examiner’s decision, etc.). Similarly, Medicaid beneficiaries must be given notice of, and an opportunity to challenge, benefit coverage denials made by a managed care company participating in the Medicaid program. And the courts’ most well-known jurisprudence in the area of health-related due process rights concerns abortion, specifically whether federal and state laws impermissibly infringe on the right to terminate a pregnancy, which is part of the right to “liberty” under the due process clause.

But that clause has been interpreted by courts to require more than just procedural fairness when a law deprives an individual of life, liberty, or property; it also requires that government provide a sound reason for having invaded per- sonal freedoms in the first place. This is termed substantive due process. This form of due process serves as a proscription against arbitrary government activity. For instance, when states have been unable to adequately explain the reason- ing behind statutes requiring involuntary confinement of

request from another branch of government regarding the interpretation or permissibility of a particular law. Federal courts are bound from issuing advisory opinions because the Supreme Court has ruled that constitutional provisions establishing the federal courts prevent them from reviewing hypothetical or moot disputes. Although a couple exceptions exist, state courts are likewise prohibited from issuing advi- sory opinions.) This essentially means that in order for a court to rule in a particular case, an individual initiating a lawsuit must assert an enforceable legal right, a measurable violation of that right, actual damage or harm, and a court-fashioned remedy that could appropriately respond to the lawsuit.

Courts play a vital role in the legal system. This role stems in large part from their responsibility to determine what, ul- timately, the Constitution means, permits, and prohibits. In discharging this responsibility, courts are asked to protect and enforce individual legal rights, determine whether the politi- cal branches of government have acted in a way that violates the Constitution, and maintain stability in the law through the application of legal precedent. The judicial branch is viewed as uniquely able to fulfill these key responsibilities, at least at the federal level, because it is the branch of government most insulated from politics: Federal judges are appointed, not elected, and granted life tenure under the Constitution to shield them from political influences that might otherwise interfere with their impartially.b Most state judges, however, are now subject to popular election,22 either at the time of ini- tial selection or subsequently, when it is determined whether they will be retained as judges.c

Enforcing Legal Rights

As described earlier, two main functions of the legal system are to establish legal rights and to create institutions to enforce those rights. The primary enforcers of individual legal rights, and those in the best position to create remedies for their vio- lation, are the courts. For example, the federal courts (and the Supreme Court in particular) were critical to the success of the civil rights movement, during which time federal judges expansively interpreted civil rights laws and maintained close oversight of the implementation of their rulings. At the same time, however, the Supreme Court has not often been at the forefront of advancing individual rights. Certainly, there have been times when the Court has played an enormous role in advancing societal expectations with respect to individual equality—Brown v. Board of Education26 being the most obvi- ous example—but this decision, and a few others, are actually quite anomalous, and the Court has been more a follower of evolving attitudes and expectations.

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Marbury was able to ask the Court directly for the writ be- cause the recently enacted Judiciary Act also authorized the Supreme Court to issue writs of mandamus.

The Supreme Court’s decision in Marbury v. Madisond first established the important principle that for every viola- tion of a legal right, there must be a corresponding legal rem- edy. With this principle in place, the Court ruled that Marbury was in fact entitled to his commission and to a legal remedy for Jefferson’s decision to withhold it, “since [Marbury’s] commis- sion was signed by the President, and sealed by the secretary of state . . . and the law creating the office, gave the officer a right to hold for five years, independent of the executive, the appointment[.] To withhold his commission, therefore, is an act deemed by the court not warranted by law, but violative of a vested legal right.”29

The Marbury Court then did something monumental: It established and justified the power of judicial review. This outcome f lowed from the fact that Marbury had filed his legal petition directly with the Supreme Court, and the Court needed to determine whether Congress acted constitutionally in granting the Court power under the Judiciary Act to issue writs of mandamus as a matter of “original jurisdiction.” (Original jurisdiction refers to cases on which the court rules before any other court does so, contrasted with situations in which the court reviews a decision of a lower court, which is called “appellate jurisdiction.”)

It was not apparent that the mandamus component of the new Judiciary Act was constitutional because Article III of the Constitution—which established the judicial branch of the federal government, including the Supreme Court— says that “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party, the Supreme Court shall have original Jurisdiction. In all the other Cases [subject to Supreme Court jurisdiction], the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regula- tions as the Congress shall make.”30 Interpreting this clause, Chief Justice Marshall determined the Court could issue a writ of mandamus under the Constitution only as an exercise of appellate—but not original—jurisdiction, and that Congress had no power to modify the Court’s original jurisdiction. As a result, the Court held that the Judiciary Act of 1801 was in conflict with Article III, and thus unconstitutional.

Marbury represented the first time the Supreme Court exercised the power of judicial review and declared uncon- stitutional a law passed by Congress. Over the years, the Court has exercised this power sparingly, exclaiming in 1867 that although it clearly had the authority to strike down

mentally ill individuals who were not dangerous to themselves or others, courts ruled the laws unconstitutional on substan- tive due process grounds. Substantive due process is unques- tionably more controversial than its procedural counterpart, because many critics argue that the former gives courts un- restrained power to invalidate, on constitutional grounds, government actions with which they simply disagree. In other words, some view this form of due process “as a potentially limitless warrant for judges to impose their personal values on the Constitution.”27(p474)

Reviewing the Actions of the Political Branches

An important piece of the separation of powers puzzle, and one that grants the courts wide authority to enforce individual legal rights in this country, is the doctrine of judicial review. Judicial review refers to the power of the courts to declare laws unconstitutional and to determine whether the actions of the legislative and executive branches of government are lawful. The theory behind judicial review is that, as the branch of government most independent of the political process, courts can pass judgment on the actions of the political branches free of partisanship.

Judicial review has its roots in the famous 1803 case of Marbury v. Madison,28 in which the Supreme Court ruled that it had the power to review acts of Congress and determine their constitutionality. The facts of the case are fascinating. In 1800, Thomas Jefferson won the presidential election, best- ing incumbent John Adams. In the final days of President Adams’s term, the Federalist-controlled Congress passed, and Adams signed into law, a statute called the Judiciary Act of 1801. Among other things, the law created several new judgeships, and the idea was to fill the new judicial posts with Federalists before Jefferson assumed the presidency. Among the new judicial appointments made by Adams and approved by the Senate before Jefferson took office were 42 justices of the peace, including one for William Marbury. Prior to Jef- ferson’s taking office, Marbury’s commission was signed by Adams and by John Marshall—who at the time was Secretary of State under Adams—but not delivered. After his inaugura- tion, Jefferson ruled that Marbury’s commission (and those of several other Adams-appointed justices of the peace) were invalid because they had not been delivered during the Adams presidency, and therefore directed his new Secretary of State, James Madison, to withhold delivery. Marbury sued to force delivery of his commission, petitioning the Supreme Court directly to issue a writ of mandamus, which is an order by a court compelling a government officer to perform his duties.

Key Features of the Legal System 41

In order to pass constitutional muster under intermediate review, a statute must serve an important government ob- jective and be substantially related to that objective. A good deal of legislation reviewed under this standard is found to be unconstitutional.

Finally, the Court has at its disposal in equal protection lawsuits a review standard known as strict scrutiny. The Court reserves this standard for laws that tread on fundamental constitutional rights (defined in part as those that are firmly established in American tradition), including an individual’s right to be free of governmental discrimination on the basis of race. In theory, otherwise discriminatory laws that are neces- sary to achieve a compelling government interest—meaning that the law in question is the least discriminatory way to meet the legislature’s compelling objective—can survive this intense form of scrutiny. However, of all the equal protection claims measured against this standard, only one survivor has emerged—when the Supreme Court permitted the federal government to intern individuals of Japanese descent during World War II34—and now it is almost universally agreed that this decision was terribly off the mark.35

Maintaining Stability in the Law

In addition to enforcing legal rights and passing on the consti- tutionality of actions of the two political branches of govern- ment, courts are expected to maintain a measure of stability, continuity, and predictability in the law. This expectation derives from the idea that those subject to the law should not have to contend with continuous swings in the direction law takes. In theory, the relatively nonpolitical judicial branch of government is in the best position to bring this expectation to fruition.

The way courts implement their responsibility to main- tain legal stability is through application of stare decisis, a Latin legal term meaning “let it stand.” Stare decisis is a policy of the courts to stand by existing legal precedent; that is, where rules of law have been established in prior judicial decisions, these decisions should be adhered to in subsequent cases where the questions of law and fact are substantially similar to those in the original case. Stability in the law is considered so important that stare decisis is usually applied, and the origi- nal judicial decision given deference, even when the original decision is subsequently determined to be wrongly decided or not legally sound. This is especially true where the original decision is an old one on which society has come to rest, as opposed to a relatively young decision with few deep roots in terms of societal expectations. The role of legal precedent has been described in this way:

congressional legislation repugnant to the Constitution, this “duty is one of great delicacy, and only to be performed where the repugnancy is clear, and the conflict unreconcilable.”31 For example, the Supreme Court invalidated few congres- sional acts in the first 50 years after Marbury, although the pace picked up somewhat after that, to an average of about one invalidation every two years. During William Rehnquist’s term as Chief Justice (1986–2005), however, the Court ruled unconstitutional more than 30 laws or statutory provisions, with most of these decisions occurring between 1995 and 2005. This up-tick in the Court’s use of its most powerful judicial review tool has led to a discussion about the Court’s proper place in the separation of powers framework. As one opinion piece exclaimed, “[d]eclaring an act of Congress unconstitutional is the boldest thing a judge can do. That’s because Congress, as an elected legislative body representing the entire nation, makes decisions that can be presumed to possess a high degree of democratic legitimacy.”32(pA19)

When determining whether a statute violates the Consti- tution, courts necessarily take into account the subject of the regulation and Congress’ purpose in regulating. Certain kinds of laws—say, affirmative action laws, or a law that classifies people on the basis of their gender—require a greater level of governmental justification and thus are held to a higher constitutional standard of review. In other words, these laws are scrutinized more closely by the Court and thus stand a greater chance of failing the constitutionality test.

By way of example, the Supreme Court has developed a tiered standard of review framework for equal protection ju- risprudence. Under the Constitution’s equal protection clause, states are prohibited from denying “to any person within its jurisdiction the equal protection of the laws.”33 The Court employs one of three standards when it reviews whether a particular law satisfies this constitutional mandate. The first, termed rational basis or rational relations review, is applied to everyday legislation pertaining to things like public safety, tax rates, and consumer protection and thus is the review stan- dard most frequently used. It is nearly impossible for a law to run afoul of this standard, because as long as the challenged statute is rationally related to any legitimate government pur- pose in passing the law, it will be upheld as constitutional.

The second standard is that of intermediate review. This is the Court’s choice when the measure under review classi- fies individuals or groups on, for example, the basis of gender. The assumption here—and the point of the heightened review standard—is that when politicians legislate with gender (or another potentially baseless characteristic) in mind, there is a greater likelihood they are doing so for nefarious reasons.

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ever-more-complex society, and it does this in part by regulat- ing a variety of relationships among parties with oftentimes competing interests (e.g., individual citizen and government; patient and physician; beneficiary and public program or private insurance company; physician and managed care organization; individual and her family). This helps explain why in the context of a specific relationship, one party has a legal right and the other party has a legal responsibility to refrain from acting in a way that infringes that legal right. It also helps explain why an individual can justifiably claim a particular legal right in the context of one specific relation- ship, but not in others (for example, a patient who believes that he has been treated negligently might have a legitimate legal claim against the physician who provided his care, but not against the hospital where the care was provided).

A second detail worth reflecting on periodically is that law is established, enforced, interpreted, and applied by human beings, and thus one must accept that law and the legal process comprise a certain amount of imperfection. This helps explain why statutes and regulations are sometimes difficult to under- stand; why laws are sometimes enforced sporadically or not at all; why reasonable jurists can disagree about the intended meaning of statutory and constitutional provisions; and why law is too often applied unevenly, or inequitably.

Finally, bear in mind the fact that laws and the broader legal system are reflective of the beliefs and values of the so- ciety from which they flow. This fait accompli, perhaps more than anything else, provides an object lesson in the role of law across a wide range of subjects, including matters related to health care and public health.

referenceS 1. Holmes OW. Law in science and science in law. Harvard Law Rev.

1899;12:443–444. 2. Friedman LM. Law and its language. George Wash Univ Law Rev.

1964;33:563, 567. 3. Black HC, et al. Black’s Law Dictionary. 6th ed. St. Paul, MN: West;

1990. 4. Friedman LM. Law in America: A Short History. New York, NY: The

Modern Library; 2002. 5. Center for Law and the Public’s Health, Georgetown and Johns Hop-

kins Universities, Available at http://www.publichealthlaw.net/ Resources / Modellaws .htm#TP.

6. Smith SD. Reductionism in legal thought. Columbia Law Rev. 1991;91:68,73–75.

7. Reich CA. The new property. Yale Law J. 1964;73:733. 8. Fay v. New York, 332 U.S. 261, 282 (1947) (Jackson, J., concurring). 9. U.S. Const. amend. XIV, § 1. 10. See, e.g., Thomas E. Baker, “Constitutional Theory in a Nutshell,”

William and Mary Bill of Rights Journal 13 (2004): 57; Richard H. Fallon, Jr., “How to Choose a Constitutional Theory,” California Law Review 87 (1999): 535.

Legal doctrines are shaped like family trees. Each generation of decisions is derived from ones that came before as, over time, each branch of the law grows and spreads or, occasionally, withers and dies away. The most recent deci- sions almost always draw their strength by trac- ing back through an ancestral line, choosing among parents, uncles, and cousins according to the aptness of their bloodlines. Rarely, a branch of doctrine is disowned, repudiated, and left vestigial until perhaps revived in another legal era.27(p77)

At the same time, legal precedent is not completely sacred, and prior decisions are sometimes reconsidered and, on oc- casion, overturned. For instance, changes in societal values might outweigh strict application of stare decisis, as was the case with the Supreme Court’s 1954 decision in Brown v. Board of Education to overturn the invidious idea of “separate but equal” from the Court’s 1896 decision in Plessy v. Ferguson.36 Stare decisis is, however, generally understood to trump mere changes in a court’s makeup. In other words, courts are ex- pected to remain anchored to precedential rules of law even when current individual members may not be.e Indeed, in a well-known Supreme Court case, former Justice John Marshall Harlan II once wrote:

A basic change in the law upon a ground no firmer than a change in our membership invites the popular misconception that this institution is little different from the two political branches of the Government. No misconception could do more lasting injury to this Court and to the sys- tem which it is our abiding mission to serve.37

concLuSIon

This chapter led you on a short journey through the complex world of the legal system. Along the way, you visited several of its essential elements and doctrines: legal rights, the vari- ous types of law, separation of powers, federalism, judicial review, and more. To be sure, the trip was abbreviated and in some cases concepts were oversimplified, but above all this is a function of needing to concisely cover a complex and expansive topic.

As you encounter myriad health policy and law topics and concepts that are complex in their own right, bearing in mind a few important details about law might help you achieve a greater measure of clarity. First, law’s primary purpose is to organize and control an ever-changing, ever-expanding,

References 43

35. For a fuller discussion of how the equal protection standards of review operate, see Lazarus, Closed Chambers, 293–294.

36. 163 U.S. 537 (1896). 37. Mapp v. Ohio, 367 U.S. 643, 677 (1961) (Harlan, J., dissenting).

endnoteS a. Although the important role that language plays in law is not a topic

we delve into in this chapter, it is, particularly for students new to the study of law, one worth thinking about. Words are the basic and most important tool of the law and of lawyers. Without them, how could one draft a law, legal brief, contract, or judicial opinion? Or engage in oral advocacy on behalf of a client, or conduct a negotiation? Or make one’s wishes known with respect to personal matters near the end of life? As one renowned legal scholar puts it, “law is primarily a verbal art, its skills verbal skills.”2

Of course, one problem with the language of law is that it is full of legal jargon, making it difficult sometimes for lay people to understand and apply to their own particular situation. For example, if government regulation is to be effective, the language used to do the regulating must be understandable to those being regulated. Another problem relates to the interpretation of words and terms used in the law, because both ambiguity (where language is reasonably capable of being understood in two or more ways) and vagueness (where language is not fairly capable of being understood) are common to laws, leaving those subject to them and those responsible for applying them unclear about their true meaning. Furthermore, as the Preface to Black’s Law Dictionary, under the heading “A Final Word of Caution,” states: “The lan- guage of the law is ever-changing as the courts, Congress, state legislatures, and administrative agencies continue to define, redefine and expand legal words and terms. Furthermore, many legal terms are subject to variations from state to state and again can differ under federal laws.”3(p iv)

b. However, since the 1980s, the selection (by the president) and ap- proval (by the U.S. Senate) process for federal judges has become highly politicized. There is an extensive body of literature on this topic, as evidenced by a simple Internet search.

c. The potential implications of increasingly injecting politics into the court system are very troubling, and there is likewise extensive literature on this topic.

d. The decision was written, as it turned out, by Chief Justice John Marshall—the very same person who, as Secretary of State, signed Marbury’s commission. Marshall was sworn in as Chief Justice of the United States just before Jefferson took office.

e. This understanding is often put to the test, however, as seen in the national discussion of the right to abortion that takes place each time a new U.S. Supreme Court nominee is announced whose political stripes seem to clash with the prevailing law that abortion is a constitutionally protected right.

11. Jackson v. City of Joliet, 715 F.2d 1200, 1203 (7th Cir. 1983). 12. For an overview of the Bill of Rights in a public health context, see

Lawrence O. Gostin, Public Health Law: Power, Duty, Restraint (Berkeley, CA: University of California Press, 2000), 62–65.

13. For a full description of the intertwined nature of administrative and health law, see Timothy Stoltzfus Jost, “Health Law and Administra- tive Law: A Marriage Most Convenient,” Saint Louis University Law Journal 49 (2004): 1.

14. Mensah GA, et al. Law as a tool for preventing chronic diseases: expanding the spectrum of effective public health strategies. Prev Chronic Dis: Public Health Res Pract Policy. 2004;1(2):1–6.

15. 5 U.S.C. § 551 et seq. 16. For an in-depth discussion of the relationship between the APA and

state administrative procedures, see Arthur Bonfield, The Federal APA and State Administrative Law, 72 Va. L. Rev. 297 (1986).

17. See Occupational Health and Safety Act of 1970 § 6, 29 U.S.C. § 655.18. Corwin ES. The President: Office and Powers, 1787–1957. New York, NY: New York University Press; 1957.

18. Corwin ES. The President: Office and Powers, 1787–1957. New York: New York University Press; 1957.

19. de Tocqueville A. Democracy in America. New York, NY: Vintage Books; 1990.

20. For a full discussion of each of the government branches’ role in health policy making, see Lawrence Gostin, “The Formulation of Health Policy by the Three Branches of Government,” in Society’s Choices: Social and Ethical Decision Making in Biomedicine, eds. Ruth Ellen Bulger, Eliza- beth Meyer Bobby, and Harvey V. Fineberg (Washington, D.C.: National Academy Press, 1995).

21. U.S. Const. amend. X. 22. American Bar Association, Governmental Affairs Office. An inde-

pendent judiciary: report of the ABA Commission on Separation of Powers and Judicial Independence. Available at http://www.abanet.org/govaffairs /judiciary/r5.html. Accessed August 1, 2006.

23. U.S. Const. article VI, paragraph 2. 24. 17 U.S. (4 Wheat.) 316 (1819). 25. U.S. (9 Wheat.) 1 (1824). 26. 347 U.S. 483 (1954). 27. Lazarus E. Closed Chambers: The Rise, Fall, and Future of the Modern

Supreme Court. New York, NY: Penguin Books; 1999. 28. 1 Cranch (5 U.S.) 137 (1803). 29. Marbury, 1 Cranch (5 U.S.) at 162. 30. U.S. Const. art. III, § 2, Clause 2. 31. Mayor v. Cooper, 73 U.S. 247, 251 (1867). 32. Gewirtz P, Golder C. So who are the activists? The New York Times.

July 6, 2005: A19. 33. U.S. Const. amend. XIV, § 1. 34. Korematsu v. United States, 323 U.S. 214 (1944).

44 chapter 3 Law and the Legal System