There are 3 levels of government in the U.S.: federal, state, and local. All levels of government must obey the U.S. and State Constitutions. The U.S. Constitution gives the federal government certain powers and assigns all other powers to the state governments. State governments establish the local governments within their territories and delegate certain powers to them.
Each level of government is divided into 3 branches: the legislative branch (makes the laws), the executive branch (carries out the laws), and the judicial branch (applies the laws to specific court cases and interprets the laws).
The federal government produces currency, regulates taxes, establishes federal welfare programs and foreign policy. It oversees the defense of the country and makes laws that affect the nation as a whole. The federal government ensures cooperation of state and local governments by providing funds to operate federal programs, such as affordable health insurance, building roads, airports, highway systems, and pollution control.
The state government oversees affairs within state borders. It raises income taxes and oversees state welfare programs, such as Medicaid. It also controls the state criminal code, maintains state roads, and carries out federal laws and programs at the state level. State and local courts hear cases and interpret the state constitution and laws. State and local governments work together to operate schools and ensure they meet state standards.
Local Government – Counties/Cities & Towns. States are divided into areas which carry out state laws within a specific geographic location. Cities, town, and counties are granted specific powers by the state. In Virginia, counties and cities are separate units, independent of each other. However, towns are part of a county. Citizens of each county, town, or city elect representatives to govern them. A county has a board of supervisors. Towns or cities have mayors and councils to oversee the delivery of public services. Local government responsibilities include managing most public services, such as parks, libraries, schools, police, and fire services. Local governments solve common problems, such as funding police and fire departments and education. They also work to lessen air pollution
Table of Contents
- Overview
- Additional Resources
Contact
- Rachel Morgan, director of Health and Human Services committee, NCSL Washington, D.C., Office, 202-624-3569
- Joy Johnson Wilson, director of Health and Human Services policies, NCSL Washington, D.C., Office, 202-624-3579
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The preservation of the public health has historically been the responsibility of state and local governments.
Clarity in leadership is crucial in a joint federal, state, and local response to any event which could cause harm to the public's health. The public health authority of the states derive from the police powers granted by their constitutions and reserved to them by the 10th Amendment to the U.S. Constitution. The basis for the federal governments’ authority to prescribe a quarantine and other health measures is based on the Commerce Clause, which gives Congress exclusive authority to regulate interstate and foreign commerce.
To be specific, a comprehensive public health response to avert the spread of highly contagious diseases may call for the isolation of people, the quarantining of a community exposed to the infectious disease or both. Quarantine typically refers to the “separation of individuals who have been exposed to an infection but are not yet ill from others who have not been exposed to the transmissible infection.”[i] In contrast, isolation refers to the “(s)eperation of infected individuals from those who are not infected.”[ii] Primary quarantine authority typically resides with state health departments and health officials; however, the federal government has jurisdiction over interstate and foreign quarantine.
In addition, the federal government may assist with or take over the management of an intrastate incident if requested by a state or if the federal government determines local efforts are inadequate.[iii] Federal government leadership response roles are shared between the Department of Homeland Security (DHS) and agencies within the Department of Health and Human Services (HHS). Once a federal declaration of emergency has been issued, state law will be preempted to the extent that they conflict with federal law. The following information is intended to provide the major relevant legal federal authorities associated with preparedness and response.
Federal Government AuthoritiesActionable Authorities | Federal Branch/ Department/ Agency | Citation | Authorities Granted |
Declaration of Emergency | Executive | 42 U.S.C. §§ 5121–5207 |
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Secretary of Health & Human Services | 42 USC § 247d |
1) a disease or disorder presents a public health emergency; or 2) a public health emergency, including significant outbreaks of infectious diseases or bioterrorist attacks, otherwise exists.
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Legal Authority without Declaration of a Public Health Emergency | Secretary of Health & Human Service | 42 USC §243 | Even without the HHS Secretary declaring a public health emergency, the secretary has broad legal authorities to provide assistance to states and local entities and to conduct studies. |
Deployment of the Public Health Service (PHS) | Executive | 42 USC 6A Part A §217 | Use of Service in time of war or emergency
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1135 Waivers | Secretary of Health & Human Services | 42 U.S.C. § 1320b-5 | Authority to Waive Requirements During National Emergencies –Section 1135 of the Social Security Act (SSA) authorizes the secretary of HHS to waive or modify certain requirements of Medicare, Medicaid, and the State Children's Health Insurance Program during certain emergencies. Section 1135 waivers require both: 1) a declaration of national emergency or disaster by the president under the National Emergencies Act or the Stafford Act and 2) a public health emergency determination by the secretary under the PHS Act. Waivers may be requested by affected healthcare providers in the emergency area during the emergency period. –The secretary may make a waiver retroactive to the beginning of the emergency period or any subsequent date thereafter. –In addition, the secretary may specify that the waivers terminate 60 days from publication, which may be extended, provided that neither the original 60-day period nor any extension extends beyond termination of the applicable declaration or determination. –Waivers related to the Emergency Medical Treatment and Active Labor Act (EMTALA) and the Health Information Portability and Accountability (HIPAA) Privacy Rule are subject to different requirements and may terminate after 72 hours. |
Isolation & Quarantine | U.S. Surgeon General with approval of the HHS Secretary | 42 USC 6A Part G §264 | Regulations to control communicable diseases
(A) to be moving or about to move from a state to another state; or (B) to be a probable source of infection to individuals who, while infected with disease in a qualifying stage, will be moving from a state to another state. Regulations may provide that if upon examination any individual is found to be infected, he may be detained for a time and in a manner as may be reasonably necessary.
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US Surgeon General | 42 USC 6A Part G §265 | Suspension of entries and imports from designated places to prevent spread of communicable diseases Whenever the surgeon general determines that by reason of the existence of any communicable disease in a foreign country there is serious danger of the introduction of a disease into the U.S., and that this danger is so increased by the introduction of persons or property from a country that a suspension of the right to introduce persons and property is required in the interest of the public health, the surgeon general, in accordance with regulations approved by the president, will have the power to prohibit, in whole or in part, the introduction of people and property from a countries or places as they will designate in order to avert the danger, and for a period of time as they may deem necessary. | |
Secretary of Health & Human Services | 42 U.S.C. § 271 | Penalties for Violation of Quarantine Law
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Emergency Use Authorization (EUA) | Secretary of Health & Human Services | 21 USC §360bbb-3 | Authorization for medical products for use in emergencies
(A) is not approved, licensed, or cleared for commercial distribution, or (B) is approved, licensed, or cleared, but which use is not an approved, licensed, or cleared use of the product. |
Strategic National Stockpile and Security (SNS) | Secretary of Health & Human Services | 42 U.S.C. § 247d-6b; 42 U.S.C. § 300hh-10(c)(3)(b) | The SNS (including drugs, vaccines, biological products, medical devices, and other supplies) is maintained by the secretary of HHS, in collaboration with the Centers for Disease Control and Prevention (CDC) director, and in coordination with the secretary of the Department of Homeland Security (DHS), to provide for the emergency health security of the U. S. The secretary may deploy the SNS to respond to an actual or potential public health emergency, protect the public health or safety, or as required by DHS, respond to an actual or potential emergency. The responsibility and authority to coordinate the SNS has been assigned to the assistant secretary for Preparedness and Response. |
Liability Protections for Volunteers | 42 U.S.C. §§ 14501–14505 | Volunteer Protection Act of 1997
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Constitutional Authority | ||
The Police Power | Police powers were reserved in the federal constitution for states’ use when needed for the preservation of the common good. When applied, they allow states to pass and enforce isolation and quarantine, health, and inspections laws to interrupt or prevent the spread of disease.[i] See Medtronic, Inc. v. Lohr, 518 U.S. 470, 475 (1996) ("Throughout our history the several states have exercised their police powers to protect the health and safety of their citizens. Because these are primarily, and historically, matters of local concern, the states traditionally have had great latitude under their police powers to legislate as to the protection of the lives, limbs, health, comfort, and quiet of all persons." (internal citations omitted)); Black’s Law Dictionary 1196 (8`H ED. 2004); Ernst Freund, The Police Power: Public Policy and Constitutional Rights iii, 3 (1904). The police power supports the authority of a state to enact and enforce “health laws of every description.” Jacobson, supra, 197 U.S. at 25. | |
The Parens Patriae Power | The parens patriae power is the power of the state to serve as guardian of persons under legal disability, such as juveniles or the insane. See Heller v. Doe, 509 U.S. 312, 332 (1993) (" [T]he state has a legitimate interest under its parens patriae powers in providing care to its citizens who are unable to care for themselves....") (internal citations omitted; Black's Law Dictionary 1144 (8th ed. 2004) | |
State Constitutional Powers | Authorities granted under each individual state constitution. |
Additional Resources
- NCSL State Quarantine and Isolation Statutes
- Federal and State Quarantine and Isolation
Authority (CRC) - Office of the Assistant Secretary for Preparedness and Response (ASPR)
- Legal Authorities, Policies, and Committees
- ASPR Public Health Declarations Questions & Answers
- CDC Public Health Law Program
- Selected Federal Legal Authorities Pertinent to Public Health Emergencies
- Public Health Preparedness Capabilities: National Standards for State and Local Planning
- State, Tribal, Local, and Territorial Public Health Professionals Gateway
- Funding and Guidance for State and Local Health Departments
- CDC Ebola Resources
[iii] 42 U.S.C. § 264; 42 C.F.R. § 70.2. During the 2003 outbreak of severe acute respiratory syndrome (SARS), U.S. patients were isolated until they were no longer infectious, allowing them to receive medical care and helping to contain the spread of the illness. However, there were no individual or population-based quarantines of persons who may have been in contact with infected persons. The CDC advised persons who were exposed, but not symptomatic, to monitor themselves for symptoms and further advised home isolation and medical evaluation if symptoms appeared. CDC, Isolation and Quarantine Fact Sheet, 2004,
[i] Public Health Reports, Jorge E. Galva, J.D., MHA, Christopher Acthison, MPA, and Samuel Levey, PHD, SM, “Public Health Strategy and the Police Powers of the State.” 2005 Supplement I, Vol. 120.