Health Law and Policy Midterm

What is a right?

Implies an obligation by the government, creates an entitlement

Procedural court decision examples

Motion to dismiss, certifying a class action, granting or denying ceriorari (seeking review of lower court’s decision), staying a lower court decision

Substantive court decsion

Court decides case “on the merits” with a final judgment

How does a case get to the Supreme Court?

Grant of certiorari (reviewing lower court’s decision) — 4 justices must agree to take the case

“Shadow Docket”

Emergency “stay” applications — Supreme Court decides a procedural issue with no briefing or oral argument. Usually reserved for emergencies, such as pausing an execution.

Textualism

Follow the “plain meaning” of the Constitution’s words

Originalism

Follow the “original intent” of the framers or the “original public meaning” of the Constitution (what it was understood to mean at the time it was written)

Constitutional principles method of interpretation

What meaninig is unclear, draw on the structure and core principles/values of the Constitution (e.g. self-government)

Pragmatism

When the meaning is unclear, look at the consequences of the decision and consider its effects

Precedent/Tradition (stare decisis)

Follow the way courts have interpreted an issue in the past

Key components of public health law

Focus on populations, not individuals; is empirically grounded; is imbued with the principles and values of social justice

Infrastructural public health laws

Laws establishing powers, structures, and duties of public health agencies

Interventional public health laws

Laws intended to influence health outcomes or mediators

Incidental public health laws

Laws that, regardless of topic or purpose, are having an impact on public health

Health impact pyramid (from smallest to largest impact)

Counseilng and educaiton —> clinical interventions —> lasting protective interventions —> changing context to support health default decision making —> socioeconomic factors

Deontological approach to public health ethics (Kantian)

Utilitarian approach to public health ethics (consequentialism)

Ethical questions in public health

Weighing benefits and burdens, autonomy and “least restrictive means,” equity, fair process (transparency about decision-making, evidence and reasoning)

Paternalism

Restricting the freedom and responsibilities of subordinates in the subordinates’ supposed best interest

Libertarianism

Upholds liberty as a core principle. Maximizing autonomy, individualism, and political freedom; minimize the state.

John Stuart Mill’s theory of paternalism and libertarianism

The government should restrict individual liberty only when the person causes harm to others

Beauchamp’s theory of paternalism and libertarianism

Individual doesn’t or can’t always know their own best interest; they have dual status — private rights balanced with the political community (body politics)

Old public health law vs. new public health law

Epstein’s opinion of “new public health law”

New public health extends regulation into inappropriate places

Rothstein’s opinion of “new public health”

Practical problems (training and budget) and “self-defeating strategy of annexing human rights into the public health domain”

Defenses of new public health law

Individals do not exist in a vacuum, collective responsibility matters as much as personal responsibility, social epidemiology (law and policy can address causal pathways)

Questions related to paternalism

When, if ever, should the government restrict personal choice? Should we force or encourage behavior change? How strong of an evidence base is required for intervention?

Behavioral economics

Combines elements of economics and psychology to understand how and why people behave the way they do in the real world, often irrationally

Choice architecture

Designing the environment to nudge people to make the right choices

Key facts of Benning v. State

Benning challenged a Vermont state statute that required motorcyclists to wear helmets on the grounds that the state constitution ensures freedom, idependence, and liberty. The Supreme Court decided, based on Picou v. Gillium, that there is no constitutional “right to be let alone” by government, and the state acted within its police powers to protect all highway users whose safety could be threatened by non-helmeted cyclists.

List of legal strategies

Mandates, licensing, litigation, taxes, economic incentives, built environment

Hierarchy of laws and the body that produces each

Satute (passed by congress and signed by the president) —> regulations (developed by agencies, requires public comment process) —> guidance (developed by agencies, no public comment process, includes Executive Orders)

Administrative Procedure Act

Establishes the procedures that federal agencies use to develop and issue regulations, allows lawsuits and judicial review of federal agency rulemaking

Congress can “hold unlawful” certain agency actions if they are:

Arbitrary and capricious, contrary to constitutional rights, in excess of statutory authority, and without observence of procedure required by law

What are the metrics for a regulation to be considered “arbitrary and capricious?”

Fundamental question is whether the regulation is permitted by statute, also if it was created using reasoned decision-making (considers problems, alternatives, data)

What must a litigant show in order to challenge an agency regulation?

That they suffered an actual or imminent injury from the law (that is not hypothetical), that the injury directly results from the law, and that the injury can be remedied by the court’s favorable decision

“Ultra Vires” (define)

“Beyond the powers” — an agency exceeded its authority through its interpretation of the underlying statute

The Chevron test / Chevron deference

An agency can’t write a rule that contradicts the express intent of Congress. But if the statute is silent or ambiguous about the agency’s authority, as long as the agency’s interpretation is reasonable, the court should defer to the agency.

Arguments for Chevron Deference

– Provides appropriate weight to agency authority

– Maintains uniformity in the administration of laws

– Keeps the courts out of policymaking

Arguments against Chevron Deference

– Gives agencies too much power without specific grant from Congress

– Allows courts to see ambiguity in most statutes and to abdicate the

judicial responsibility

FDA v. Brown and Williamson

Issue: Did Congress delegate to the FDA the authority to regulate cigarettes under the Food, Drug and Cosmetic Act, when it gave the FDA authority to regulate drugs and devices affecting “the structure and any function of the body.” Court ruled that the FDA lacked the necessary authority to regulate cigarettes, as Congress had passed specific regulations about cigarettes, indicating a desire to keep them on the market.

NY Statewide Coalition v. NYC Dept of Health

Alabama Assoc. of Realtors v. HHS

CDC placed a moratorium on evictions in Sept 2020. Realtors challenged the rule as exceeding the CDC’s authority under the Public Health Services Act, in which Congress gave CDC authority to make any regulations necessary to prevent spread of communicable diseases. Court decided the moratorium was beyond the scope of the CDC’s authority. FILL IN INFO ABOUT COURT’S FINDINGS / ARGUMENTS FOR AND AGAINST

Major Questions Doctrine

Courts should look skeptically at an agency that is regulating around issues of “vast economic and political significance” and strike down regulations that seek to address new problems under existing legislation

National Federation of Independent Business v. Dept of Labor (2022

OSHA regulation requiring that large employers ensure that their employees are vaccinated against COVID or regularly tested and masked. FILL IN OPINION

West Virginia v. EPA

Does the EPA have the authority to regulate greenhouse gas emissions under the Clean Air Act? West Virginia challenged EPA emissions rules, assuming the Biden admin would issue similar regulations to Obama. But the majority opinion ignored the fact that there was no “live controversy” (Biden’s EPA had not yet issued regulations!) and the Court applied the major questions doctrine to say that Congress didn’t intend for the EPA to be able to regulate greenhouse gases ("EPA took “unprecedented power over industry”).

Non-delegation Doctrine

Congress cannot delegate its legislative authority to another branch (executive) based on Article 1 (all legislative powers shall be vested in Congress)

Loper Bright Enterprises v. Raimondo

An act set catch limits to prevent overfishing and required boats to have government-appointed observers onboard to monitor compliance. Federal agency regulations required that the fishing vessel pay fees associated with the costs for the observers. Companies challenged the regulations as exceeding agency authority. The Court overruled Chevron, said it was inconsistent with the Administrative Procedures Act and Article III by allowing agencies, not courts, to interpret what the law means. Dissent: majority assumes there is only one “true” meaning of the statute that only they can decipher; agency officials are the subject experts, courts are not.

Humphreys Executor v. US

Upheld statutory limits on removing independent agency heads/comissioners without cause

Trump v. Slaughter

Overturned Humphreys Executor, allowing the President to fire at will leaders of independent agencies (Court said this violated the separation of powers under the Constitution)

Trump v. Cook

Kept in place a lower court stay (pause) on Trump’s firing of Lisa Cook, a member of the Federal Reserve Board. Court distinguished this case from Slaughter, saying the Federal Reserve is diff from other independent agencies because of the Founders’ belief that “monetary policy should not be subject to political interference”

Executive orders

Used to manage internal operations of federal agencies and employees under president’s control

Executive Order topics that relate to public health

Gender affirming care (threatening to cut off funding to health care systems that provide it, or issuing subpoenas to hospitals for for records of patients receiving it), health disparities research funding (refusing to fund projects involving DEI and “gender ideology”), environmental protection, firearm safety, childhood vaccine administration

Trump v. CASA

Federal courts cannot issue nationwide injunctions of administrative actions

Definition of federalism

Limited powers of congress

10th Amendment

“Powers reserved to the States…or to the people”

State Police Power

Authority to enact laws and adjudicate to protect health, safety, and porals and restrict private interests (personal or economic)

Commerce Clause Power

Congressional authority to regulate commerce “among the several states and with Indian tribes”

Cases related to commerce clause

US v. Lopez, Gonzalez v. Raich

US v. Lopez

Gonzales v. Raich

Power to Tax and Spend (who has it, and what does it allow?)

Congress. Power to enact taxes to encourage/discourage behavior, appropriate funds for certain activities, conditional spending (strings attached)

Key components of the ACA

Individual mandate and tax penalty, employer requirements, health insurance marketplaces, medicaid expansion to low-income adults, coverage requirements (essential health benefits)

NFIB v. Sebelius

Supremacy Clause

Constitution is the “supreme law of the land.” Federal laws supersede state laws (and state laws supersede local laws) when they conflict

Express preemption

Express preemption occurs when a higher-level government explicitly states in a law or statute that it intends to override or displace lower-level laws

Implied preemption

When state law can be used to invalidate a lower level authority even though explicit preemptory language does not exist

Floor preemption

“You have to do xyz, but you can do more”

How do Courts approach preemption?

They have a general presumption against presumption; they want to preserve the ability for states to legislate

FCLAA (1964)

23-34 94th St. Grocery v. NYC Board of Health

Moyle v. US

Preemption and EMTALA case in Idaho - Biden sued Idaho for an extremely restrictive abortion ban that only protected life, not health in violation of EMTALA. Court sent it down to the appeals.

Moyle v. US

Ceiling preemption

“You can’t do anything. We’ve set the limit.”

Vacuum preemption

When a state prohibits cities from doing something without setting any standards of its own.

Federal Cigarette Labeling and Advertising Act (1964)

Case related to preemption

Federal Cigarette Labeling and Advertising Act (1964)

Equal Protection (what amendment, what does it say, and how has the court interpret it)

14th Amendment: No state shall deny to any person “equal protection of the laws.” Court has interpreted this to mean “similarly situated” people must receive similar treatment (i.e. adults)

Who deserved greater constitutional protections, according to the Court in the past?

Minorities who have historically been discriminated against, ahve an immutable or visible trait, and are generally powerless to protect itself through the political process

What must the government do to treat people differently?

Demonstrate its rationale in doing so

What standard does the Court use to determine if a government action violates the Equal Protection Clause?

“Standard of Review”

What groups of people receive strict scrutiny under the standard of review for equal protection cases, and what must the state show to treat them differently?

“Suspect class:” Race, religion, national origin. State must show a compelling interest, least restrictive means, narrowly tailored approach.

What groups of people receive intermediate scrutiny under the standard of review for equal protection cases, and what must the state show to treat them differently?

“Quasi-suspect class;” gender, sexual orientation. State must show important government interest, means are substantially related to that interest, not based on stereotypes

What groups of people receive “rational basis” scrutiny under the standard of review for equal protection cases, and what must the state show to treat them differently?

“Non-suspect class;” disability, poverty, age, disease type. State must show legitimate interest, means are rationally related to the ends.

What case is evidence for equal protection?

Jew Ho v. Williamson

BASIC facts of Jew Ho v. Williamson (1900)

San Francisco bubonic plague quarantine in Chinatown. Law was both underinclusive and overinclusive.

Craig v. Boren

Oklahoma law prohibited males under 21 from 3.2% alcohol

beer but females 18-20 could. State justified the law using traffic accident statistics, which are higher among men. This was found to be a violation of the equal protection clause.

U.S. v Skrmetti

West Virginia v. BPJ

West Virginia’s exclusion of transgender girls from girls’ sports does not violate the Equal Protection Clause because the state’s interests in safety and competitive fairness are important government objectives and the sex-based classification was substantially related to those interests

Title VI of the Civil Rights Act

Prohibits discrimination based on race, color, and national origin in programs that receive federal funding (including healthcare facilities)

Title VII of the Civil Rights Act

Prohibits discrimination based on race, color, religion, sex, and national origin. Covers both disparate treatment and impact

Bostock v Clayton County (2020)

Court held that discrimination based on “sex” includes gender identity and sexual orientation

Standard of Proof for disparate treatment

Must show proof of discriminatory INTENT (need a smoking gun!!!) and disproportionate adverse impact for a protected group

Alexander v. Sandoval (1966)

The Court said individuals may not bring a disparate impact lawsuit alleging that an entity receiving federal fnding has violated Title VI; only the federal government can.

Brown v. Board of Education (1954) as it relates to the two principles of the equal protection clause

Anti-classification (by race) and anti-subordination (segregation based on white supremacy, subordination of Black people in law and society)

Students for Fair Admissions v. Harvard and UNC (2023)

Affirmative action programs in higher education that consider race in admissions violate both Title VI and the Equal Protection Clause because they treat people differently based on race. The Court rejected the idea that affirmative action programs support diversity.

Louisiana v. Callais (2026)

Using race to intentionally create a Black majority Congressional district violates the Equal Protection Clause as race-based discrimination (so you can’t redistribute districts to make them fairer solely based on race). Can only show that a state legislature’s map violates the Voting Rights Act if you show that it intended to discriminate against minorities

State Action Doctrine

Government actions (not private actions) are subject to the Constitution’s provisions and protections

Due Process Clause amendments and language

5th Amendment and 14th Amendment: No state (federal or state) “shall deprive any person of life, liberty, property, without due process of law”

5th Amendment

Due Process Clause applies to FEDERAL government actions