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Public health officers have broad powers under law

Staff Writer | June 30, 2020 11:42 PM

GRANT COUNTY — Washington state law is clear that health officers, such as Grant County’s Alexander Brzezny, have vast powers to respond to pandemics like the COVID-19 outbreak.

And that includes the June 24 order from state Secretary of Health John Wiesman requiring every person in Washington to “wear a face covering that covers their nose and mouth when in any indoor or outdoor public setting.”

“In general, local governments have very strong health and safety powers,” said Hugh Spitzer, a law professor at the University of Washington who specializes in state and local government.

It’s known as “the police power,” Spitzer said.

While the federal government is limited to “enumerated powers” under the U.S. Constitution, Spitzer said state governments are assumed to have power unless constrained by law.

“States have very broad natural police powers. There’s no grant of police power; it’s just assumed, and courts have treated it as if it’s just there,” Spitzer said.

While states have broad powers, Spitzer said they have to grant power to counties and cities. Under Article 11, Section 11 of the Washington state Constitution, a county, a city or a town has the ability to “make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws.”

Wiesman also cited several sections of Washington law, including Chapter 70 of the Revised Code of Washington, that give local health officers the authority to control and prevent the spread of “contagious, dangerous or infectious diseases” or “take such measures as he or she deems necessary in order to promote the public health.”

Another section of state law — Chapter 43, which outlines the power of the governor and the executive branch — gives Wiesman the powers of a local health officer in emergencies when “the safety of the public health demands it.”

“I agree, it’s very broad,” said Grant County Commissioner Richard Stevens. “They can make people do things they don’t want to do for the good of the public.”

These powers have been tested by courts for more than 100 years, with federal and state judges generally deferring broadly to local police power.

For example, in 1905, the U.S. Supreme Court ruled in Jacobson v. Massachusetts that Massachusetts’ compulsory smallpox vaccination program was constitutional, though local governments exercising police powers in pursuit of public health must show “necessity, reasonable means, proportionality and harm avoidance” in order to maintain constitutional rights, according to a review of the case by Georgetown University law professor Lawrence Gostin in a 2005 issue of the American Journal of Public Health.

In 1992, the Washington state Supreme Court ruled in Spokane County Health District v. Brockett that the Spokane Health District’s needle exchange program designed to address the spread of the HIV virus was legal despite violating state anti-drug laws because “of the broad powers given local health boards and officers,” which authorized the program, according to the court ruling.

Spitzer said local health officers are generally accountable to local boards of health, or the legislature could constrain their ability to act.

“A health officer can take actions, but can be countermanded by a board of health,” he said.

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