67 
As to the Secretary's preemptive authority under section 361, “the 
purpose of Congress is the ultimate touchstone." Retail Clerks v. 
Schemnerhcn' n, 375 U.S. 96, 103 (1963). An early Supreme Court case 
which upheld a state's quarantine laws (alleged to be in conflict with 
federal law) , stated that “quarantine laws belong to that class of state 
legislation which is valid until displaced by Congress, and that such 
legislation has been expressly recognized by the laws of the United 
States almost from the beginning of government.'’ Compagnie Fran- 
caise v. Louisiana Board of Health. 186 U.S. 380, 389 (1902) ; Louisi- 
ana v. Texas , 176 U.S. 1, 2i (1899). In enacting the federal quarantine 
laws (subsequently superseded by section 361), the Congress appar- 
ently did not express a specific intent to preempt state laws on the 
subject. The Supreme Court has stated that “we start with the assump- 
tion that the histone police powers of the States were not to be super- 
seded by the Federal Act unless that was the clear and manifest pur- 
pose of Congress." Rice v. Santa Fe Elevator Corp.. 331 U.S. 218, 230 
(1947) : Jones v. Rath Packing Co.. 430 U.S. 519, 525 (1977) . The most 
recent Supreme Court decision concerning federal preemptive capacity 
set out the general principles : 
Often Congress does not clearly state in its legislation 
whether it intends to pre-empt state laws: and in such in- 
stances, the courts normally sustain local regulation on the 
same subject matter unless it conflicts with federal law or 
would frustrate the federal scheme, or unless the courts dis- 
cern from the totality of the circumstances that Congress 
sought to occupy the field to the exclusion of the States. 
Malone v. White Motor Co ., No. 76-1184 (April 3, 1978), slip 
opinion at 6. 
Absent expressed congressional intent, it is probable that Section 361 
does not give the Secretary of HETV T authority to preempt state laws. 
Additional legislation is needed to accomplish that purpose. 
In response to your additional questions regarding the Secretary's 
authority to license and inspect facilities, to extend guidelines to non- 
federally funded research, etc., we can not provide clear cut answers. 
Needless to say, all the powers you mention in your letter would sig- 
nificantly expand HEW’s role in public health regulation from what 
it has been. Under Section 361(a) the Secretary has the power “to 
make and enforce such regulations as in his judgment are necessary" 
to fulfill the section’s purpose. But again, for the reasons we have 
discussed throughout tins paper, we can not say that all DNA activity 
will be subject to the Secretary's control. For the research that is, little 
? uestion exists that the Secretary has the power to inspect and license 
acilities if it is in fact necessary and the constitutional and statutory 
rights of involved individuals are respected. As for intrastate regu- 
lation absent federal funding, there must be a clear relationship of 
the intrastate activity to some aspect of interstate commerce to justify 
federal regulation. If that nexus is established then the intrastate 
activity is subject to federal regulation as is necessary to accomplish 
the statutory purpose. See, Louisiana v. Mathews. Again, however. 
non-federalh r funded, wholly intrastate activity healing no relation- 
ship to interstate commerce is not within the regulatory ambit of 
section 361. 
23 - 890—7 
[Appendix B — 326] 
