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PHS Dispensary No. 32 (LC)
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[Longtime LHB readers will recall that for the exam in my legal history course I write an essay about some administrative regime I did not cover in class and ask students to compare it with ones we did. The topics of previous essays include federal grazing policy, motor carrier regulation, meat inspection, and the US Commerce Court. This year’s essay, on public health, follows. DRE]
Although public health measures date from ancient times, “the science of public health is of very recent origins,” wrote Henry Bixby Hemenway, a lawyer and doctor, in his leading treatise on public health law, published in 1914, For centuries, knowledge of the causes of disease was “crude and chaotic.” During the nineteenth century, however, doctors came to understand the true origins of infectious diseases and developed systematic methods to prevent them And not a moment too soon: Common knowledge might have sufficed when most Americans lived in rural areas, but by Hemenway’s day “a large proportion of the population is crowded within urban walls.” Illnesses could devastate an entire region’s economy by incapacitating its workers.
Hemenway thought that too many still scoffed at preventive methods, believing they could protect themselves or count on courts to abate disease-creating nuisances as they arose. They did not realize that “infectious diseases approach stealthily and work their injury before their presence is suspected.” Now “specially trained executives” were a necessity, and public health administration had to be “recognized as a special profession.” No government department touched “the life of every citizen” more closely, he maintained. “An efficient service means an efficient community."
Already, some municipalities had met the challenge. As the Wisconsin Supreme Court wrote in a 1909 decision, Milwaukee authorized its commissioner of health to “summarily abate nuisances of all kinds, destroy diseased or infected food, clothing, and other like articles, establish temporary hospitals in case of epidemics, and, in fine, to exercise very broad and autocratic powers in all matters relating to the conservation of the public health.” Indeed, the commissioner’s power to act without a prior hearing or even notice “at times must trench closely upon despotic rule.” But it could not be otherwise: “The public health cannot wait upon the slow processes of a legislative body or the leisurely deliberation of a court. Executive boards or officers who can deal at once with the emergency under general principles laid down by the lawmaking body must exist if the public health is to be preserved in great cities.”
Unfortunately, public health officials owed their jobs to the political party that controlled of city government. Indeed, just a few years earlier, Hemenway claimed, “a certain ward politician who was without any special training or education which fitted him for the place” ran Chicago’s public health department. “Until the importance of the health positions is generally appreciated by the citizens they will be used, in many cases at least, as means whereby political favors can be repaid,” he warned.
Ideally, Hemenway wrote, a single administrator, “expert in the line of official duty,” should run a health department. The administrator should, in turn, appoint subordinates, who should be experts, removable only for cause, and paid “an adequate salary, not by fees.” Departments should be organized to make every subordinate “definitely responsible for a definite portion of the work” and to assign at least one subordinate to “every point of danger.” Subordinates should “give personal attention to individual items,” not the top administrator.
The judicial response to public health administration tended to focus on health officials’ power to act in emergencies without prior notice and a hearing. As one court wrote, “The public health might suffer or be imperiled if action could be delayed until a protracted hearing could be brought to a termination.” But the courts insisted that the affected parties could contest the health officials’ actions in lawsuits filed after the fact. When the affected parties did in the nineteenth century, courts usually refused to treat health officials’ factual determinations as final and conclusive and instead tried them de novo. Thus, in Miller v. Horton (1891), the Massachusetts Supreme Judicial Court, in an opinion by Oliver Wendell Holmes, Jr., upheld a trial judge’s determination, in a subsequent bench trial, that a horse destroyed by the Board of Health did not have glanders, an infectious bacterial disease, after all.
In People ex rel. Copcutt v. Board of Health (1893), decided by the New York Court of Appeals, a board of health did give the owner of a wood mill a hearing before declaring his ponds a public nuisance, because of the sewage that seeped into them. When the millowner sought damages for the board-ordered destruction of the dams that created the ponds, a trial judge upheld the board’s action, but only after making his own determination that the ponds were public nuisances. The Court of Appeals affirmed, but in the process emphasized the need for de novo review after the fact. The board of health “could obtain its information from any source and in any way,” the court noted. If such factual determinations were “final and conclusive,” it continued, “the citizen would in many cases hold his property subject to the judgments of men holding ephemeral positions in municipal bodies and boards of health, frequently uneducated and generally unfitted to discharge grave judicial functions.” The court then approvingly quoted a treatise writer: “where the public authorities abate a nuisance under authority of a city ordinance ‘they are subject to the same perils and liabilities as an individual.’”
After the turn of the twentieth century, appellate courts still required after-the-fact review of the emergency actions of boards of health, but some started to instruct trial courts to give public health officials the benefit of the doubt. Valentine v. City of Englewood (1908) was a suit for wrongful imprisonment brought by the father of a girl quarantined for having scarlet fever. New Jersey’s highest court agreed that the board of health’s determination was not final and conclusive, but it also instructed trial courts simply to determine whether the board had “reasonable and probable cause” for its factual determination. Although some evidence suggested the girl did not have scarlet fever, the board of health had “acted with care, and not hastily, for it decided only after a conference between its own physician, a reputable physician of Englewood called in by the plaintiff, and a specialist from the city of New York.” The appellate court therefore affirmed the trial court’s dismissal of the father’s lawsuit.
In contrast, in North American Cold Storage Company v. Chicago (1908), the U.S. Supreme Court seemingly held the line on de novo review of a public health official’s finding of fact. Acting without a hearing, the Commissioner of Health of the City of Chicago had demanded that the complainant, the owner of a cold storage warehouse, turn over for destruction forty-seven barrels of poultry because, in the words of the Municipal Code, the poultry “had become putrid, decayed, poisonous, or infected in such a manner as to render it unsafe or unwholesome for human food.” When the warehouseman refused, the city blocked all deliveries to or from his establishment. The warehouseman sought an injunction against the blockade, the trial court dismissed his suit, and the warehouseman appealed to the U.S. Supreme Court.
Rufus Peckham wrote the Court’s opinion, from which only David Brewer dissented, without opinion. Not surprisingly, Peckham, a dissenter in Jacobson and the author of the Court’s Lochner opinion, volunteered that Chicago’s total blockade of warehouse “would seem to have been arbitrary and wholly indefensible.” The issue before the Court, however, was whether the lack of a hearing before the commissioner acted violated the warehouseman’s right to due process under the Fourteenth Amendment. After quoting Holmes’s opinion in Miller, Peckham concluded it did not, but only because “the ex parte finding of the health officers as to the fact [of the poultry’s unwholesomeness] is not in any way binding” in a subsequent judicial proceeding. “If a party cannot get his hearing in advance of the seizure and destruction, he has the right to have it afterward, which right may be claimed upon the trial in an action brought for the destruction of his property, and in that action those who destroyed it can only successfully defend if the jury shall find the fact of unwholesomeness.”
Yet Peckham rejected the warehouseman’s argument that he could only be denied a hearing if an emergency existed, that courts should determine whether one existed, and that none had existed in his case, because poultry in cold storage remained unchanged for up to three months. Peckham countered that the Municipal Code left the existence of an emergency to “the reasonable discretion of the legislature,” which had delegated it to the commissioner. Whether an emergency existed was not “a subject for review by the courts.”
Writing in 1914, Hemenway expected more judges to defer to the factual determinations of public health officials. After all, he wrote, “the judge devotes his attention to law and its interpretation; it is not to be presumed that he knows the relative merits of different food preservatives.” But he also thought judges would be tempted to intervene anyway if affected parties could not appeal an unfavorable order up the chain of command within a public health department. To prevent the temptation from arising, Hemenway argued, health departments should provide for internal appeals from subordinates to superiors.
The administration of public health also was the subject of controversy at the federal level. The first federal public health agency was the Marine Hospital Service, which ran hospitals for sailors in the nation’s seaports and was created within the Treasury Department. Over time, the Service acquired other duties, including the administration of quarantines, inspecting immigrants, and preventing the interstate transmission of disease. To recognize these functions, the agency was renamed the Public Health Service (PHS) in 1902. Two years later, at the suggestion of President Theodore Roosevelt, the National Academy for the Advancement of Science (NAAS) created a committee to study how the PHS and other health-related agencies might be combined to “make a more efficient health machine in the Federal Government.” TR backed the effort in his last message to Congress in December 1908. “This nation cannot afford to lag behind in the worldwide battle now being waged by all civilized people with microscopic foes of mankind, nor ought we longer to ignore the reproach that this government takes more pains to protect the lives of hogs and of cattle than of human beings,” Roosevelt declared.
In 1910, with the support of TR’s successor, William Howard Taft, Oklahoma Senator Robert Owen introduced a bill to create a Department of Public Health. Owen called health “a National Asset” and estimated the annual loss to the United States from preventable illness and death at $4 billion. He considered the fight against preventable disease to be “a contest between intelligence and ignorance” and insisted that “all the authority, dignity and power of the general government must be put behind the truth.” Irving Fisher, a Yale economist who chaired the NAAS committee, argued that the PHS would never get the resources it needed if it remained a mere bureau. “As long as we have a Bureau of Health subordinate to a department of something else, health will always be regarded as subordinate to something else,” he maintained.
To illustrate his point, Fisher referred to an earlier incident. In March 1900, Joseph J. Kinyoun, a bacteriologist serving as Federal Quarantine Officer in San Francisco for the PHS’s predecessor, identified an outbreak of the bubonic plague and ordered a quarantine. Outraged politicians complained the quarantine “inflicted incalculable injury upon the state, both in reputation and financially,” because it had resulted in the shunning of all things Californian. The governor denied that the plague was ever in San Francisco and accused Kinyoun of injecting cadavers with plague bacilli to justify his fallacious findings and conducting a malicious conspiracy against the state. The governor, it was said, mobilized “all the political machinery ... at his command to discredit Kinyoun and secure his removal.” He dispatched a delegation of powerful businessmen to Washington to lobby the Secretary of the Treasury. Although the head of Kinyoun’s Service warned that dismissing him would be “an abject surrender to the local political elements” and ruin the Service’s reputation, the Secretary removed Kinyoun from his post anyway.
Fisher, the allopathic doctors who dominated the American Medical Association, and other supporters probably anticipated smooth sailing for the Owen bill. After all, Democrats and Republicans had each called for the improvement of he federal public health administration in the last presidential campaign. Instead, as a journalist wrote, “a merry war among our medical brethren” broke out, as homeopaths, eclectics, osteopaths and other heterodox physicians warned that the allopaths would use the new department to make their practices the national standard and thereby create a “doctors trust.” In reply, Fisher protested, “All that we are in favor of is ... to get the light of science on medicine. We do not care where it comes from.” But Congress, “amazed at the intensity and character of the opposition,” abandoned the bill and left PHS in the Treasury Department, where it remained until 1939.
PHS finally escaped the Treasury Department after the passage of the Reorganization Act of 1939. President Franklin Delano Roosevelt had first asked for a law to enable him to reorganize the federal government in January 1937, but Congress refused, on the ground that it would delegate too much power to the president and limit its members’ influence over patronage appointments. It passed a reorganization act in 1939 only because it put some agencies off limits and by its terms expired in two years. The statute also allowed Congress to block the president’s reorganization plans by passing a Concurrent Resolution within sixty days.
Reorganization Plan No. 1, which became effective in the summer of 1939, grouped various authorities, administrations, boards, and bureaus into three “superagencies”: the Federal Security Agency, the Federal Works Agency, and the Federal Loan Agency.
FDR put his proposal in a global context. “In these days of ruthless attempts to destroy democratic governments,” he told Congress, “it is baldly asserted that democracies must always be weak in order to be democratic at all; and that, therefore, it will be easy to crush all free states out of existence.” His proposed reorganization would enable “the people’s Government” to carry out “the people’s will” and “make democracy work. . . . We are not free if our administration is weak.” FDR’s critics saw it differently. The Chicago Tribune warned that the reorganization would abet FDR’s continued transferal of “the resources of the country from private enterprise to political management” under “what the Germans call the Fueher.” If FDR was not stopped, the result could only be “the absolutism which exists in Germany, Italy, and Russia."
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