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Old law supports governor’s public health power

Malaria used to be endemic in the United States. But before 1919, no one bothered to calculate its toll.

In that year, Kenneth F. Maxcy of the federal Public Health Service began compiling figures. He discovered the death rate for malaria in Florida, Mississippi and South Carolina topped 30 victims per 100,000 population.

A disease that killed at that rate would rank as a top-10 cause of death today. Even so, malaria had “far greater impact in terms of chronic illness than in terms of mortality,” to quote a 2012 paper by political scientist Daniel Sledge.

And what an impact. The most common symptoms of uncomplicated malaria, according to the Centers for Disease Control and Prevention, are recurring bouts of fever, chills, nausea, headaches, body aches and malaise. Severe cases are much worse.

Scientists arrived at an understanding of the lifecycle of the malaria parasite and its transmission by mosquitoes during the 1880s and 1890s. As the century turned, the federal government energetically followed the science in Panama, where it was building the canal, and in its new possession Puerto Rico, and also in occupied Cuba. In those tropical locales, its public health measures greatly reduced the incidence of disease.

But the government didn’t follow the same program in the American South. The obstacle was the United States Constitution, as then interpreted. Sledge explains: “Public health was understood, above all else, as a police power, left to the states under the 10th Amendment to the Constitution.”

The 10th Amendment provides that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Constitutional conservatives throughout our history have preferred to ignore the final four words of the amendment.

From the early days of the Republic, the United States Supreme Court held that the states possessed a “police power” that gave them authority to enact “health laws of every description.” (That’s from an 1824 opinion.) The states have always had broad authority to enact laws to “protect the public health and the public safety” (1905).

But during the 19th century, and into the first decades of the 20th, it was understood the federal government shared none of this police power, because it wasn’t specifically delegated by the Constitution.

So while the federal government had the expertise and means to control malaria in the South, it didn’t do so. It left the job to the states, which were short on both expertise and means. Moreover, the states were constrained by political boundaries the disease didn’t respect.

Is this beginning to sound familiar?

The event that changed our constitutional understanding regarding public health was World War I, as Sledge convincingly argues. The military established training bases across the South and immediately confronted the problem of service members falling seriously ill.

Congress approved vigorous public health measures as part of the war effort. Such measures couldn’t be limited to the bases themselves but were extended across large “extra-cantonment zones.” Within two years, physicians in Hattiesburg, Mississippi reported a 90% drop in malaria cases.

With such a dramatic demonstration of practical effectiveness, lived experience began to count for more than arid theory. One way of looking at the expansion of the federal government during the twentieth century is that the courts finally permitted the people to exercise the powers reserved to them by the 10th Amendment.

Which brings us to New Mexico’s frequently updated public health emergency order. We’ve gotten used to calling it the governor’s order, but the powers she exercises were granted by the Legislature, which passed the All Hazard Emergency Management Act in 1959 and the Public Health Emergency Response Act in 2003.

Legal challenges to the governor’s order have foundered on the long line of U.S. Supreme Court decisions affirming the state’s police power. While it’s now universally recognized that the federal government also has authority to protect the public health, old cases recognizing the power of the states to enact “health laws of every description” remain on the books.

When a coalition of business owners sued to stop enforcement of the governor’s order, our state Supreme Court drew on that line of cases to declare that “the New Mexico Legislature possesses the police power, the ‘broadest power possessed by governments,’ to protect public health and welfare.”

That being so, the court unanimously concluded, the governor acted lawfully when she issued the order. Accordingly, she could enforce it with civil penalties.

Everything we’re experiencing feels unprecedented. But America’s state-by-state response to the pandemic follows an old pattern, and the constitutional doctrine undergirding the governor’s order is positively ancient.

Joel Jacobsen is an author who in 2015 retired from a 29-year legal career. If there are topics you would like to see covered in future columns, please write him at


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