By Jennifer S. Bard
Yet, throughout this pandemic, they have taken no steps beyond issuing stark warnings, which have been only marginally effective. For example, this Thanksgiving, estimates indicate that almost 5 million flew and up to 50 million drove to join others. Dr. Deborah Birx is warning that everyone who did so should consider themselves infected.
The CDC’s historic reluctance to institute the politically unpopular measure of restricting travel could be countered by adding a self-executing amendment to 42 U.S. Code 264 requiring that the option be assessed at the beginning of an outbreak and periodically reviewed. More specifically, this amendment should create a review committee and set metrics for travel restrictions.
Background on Travel Restrictions
Restricting the movement of people to stop the spread of disease is one of the oldest known public health measures. While traditionally such measures are taken at international borders to stop the spread of disease from one country to another, there is mounting evidence that limiting travel within the United States after SARS-Cov-2 (COVID-19) began to spread across the nation in January 2020 could have avoided millions of cases and hundreds of thousands of deaths.
The failure to implement such restrictions is not due to lack of information. By July 2020, the CDC had already issued a report calling the case of SARS-COV-2 (COVID-19) “highly contagious” and documenting its ability to spread rapidly. That same month, using CDC Data, the Children’s Hospital of Philadelphia could trace spread along the interstate highway system.
Acting on this information, governors in many states sought to protect their citizens by screening “non-residents and requiring lengthy quarantines of those who had traveled to states with high rates of community spread. But the majority did not, and, since then, every major U.S. holiday has been followed by a spike in infections, hospitalizations, and deaths.
The CDC’s decision to refrain from creating national travel restrictions when it was clear that the virus was going to spread across the nation and state-level action was insufficient did not stem from lack of legal authority.
The Public Health Service Act – and its accompanying regulations, 42 U.S. Code 264 and 42 CFR 71, which were redrafted following uncertainty over the extent of the CDC’s authority during the U.S. Ebola outbreak – gives the Centers for Disease Control authority to take whatever steps necessary to stop the spread of infectious disease.
Specifically, the “CDC is authorized to detain, medically examine, and release persons arriving into the United States and traveling between states who are suspected of carrying these communicable diseases.”
The events of these last nine months illustrate that having legal power is not the same thing as using it.
The process for using this power, as set out by Congress by adding a requirement in statute that travel restrictions be considered as soon as a threat is recognized, could make it easier for future administrations to act quickly in the face of spreading pandemic.
Adding this language would both remove any ambiguity about the scope of the power of the Executive Branch, which includes the CDC, to limit the movement of people to stop the spread of disease, and trigger early discussion of the issue.
By writing that language into statute, Congress would create a self-executing law that is not subject to future agency rulemaking, which could make it so difficult to invoke as to render it neutral. It would also relieve future administrations of the responsibility of raising the issue because, much like the mandatory process of starting presidential transitions during the election, the holding of the meeting will be mandatory.
As Professor Adam Samah explained in a 2015 article, the effect of a self-executing standard is to avoid any possibility of discretion either in the regulation drafting process or the later implementation. Therefore, these “statutes announce legal norms that govern as of the statute’s effective date, while other statutes announce no such norm in advance of agency or other official action.”
There are examples of self-executing statutes throughout the federal code, such as those that require the Department of Transportation to collect and share information regarding a pilot’s qualifications. The statutes reach across regulated industries; for example, self-executing federal standards address the risks of “controller fatigue” in gas pipeline control, and ensure the security of drug supply chains.
Creating a Mechanism for Considering Travel Restrictions
In addition to adding language to the Public Health Service Act requiring the early and ongoing consideration of travel restrictions, Congress could also amend the existing regulations to develop a mechanism for doing so through an advisory board, similar to the mechanism through which the FDA and CDC evaluate new vaccines via advisory boards (the Vaccines and Related Biological Products Advisory Committee [VBRBAC] and Advisory Committee on Immunization Practices [ACIP]). Congress could, if it wanted, be even more specific and detail the composition of the review committee, as the Public Health Services Act does for the ACIP, and even set the criteria for review, as it does for evaluation of human subject research.
Adding a self-executing requirement that the CDC advisory panel meet when specific criteria for the risk of interstate spread are met would not force federal action, nor would it guarantee that a future executive branch follow scientific guidance. But it would make the initiation of a review process mandatory. States at first reluctant to issue what they know will be unpopular restrictive orders may be likely to do so when faced with the threat of CDC takeover. Governors would be relieved of making politically unpopular decisions. And even future presidents reluctant, for political reasons, to take action would have to justify their decision to an independent review committee. Going further to develop a mechanism for this review, such as setting specific metrics for using these extraordinary powers in the case of a rapidly spreading pandemic, would increase the likelihood of state cooperation with national directives and expedite the use of these measures in the face of continued recalcitrance.
Proposed legislative language (additions underlined and italicized) that could be appropriated and/or combined and introduced in Congress:
Section 361 of the Public Health Service Act (42 U.S. Code § 264).
The Surgeon General, with the approval of the Secretary, is authorized to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession. In the event of it is necessary to control the spread of communicable disease, the Surgeon General shall, within five days of ascertaining the existence of such a risk, empanel an advisory committee to consider orders restricting movement of people between or within states. For purposes of carrying out and enforcing such regulations, the Surgeon General may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary.
42 CFR § 70.2 Measures in the event of inadequate local control.
Whenever the Director of the Centers for Disease Control and Prevention determines that the measures taken by health authorities of any State or possession (including political subdivisions thereof) are insufficient to prevent the spread of any of the communicable diseases from such State or possession to any other State or possession, he/she may take such measures to prevent such spread of the diseases as he/she deems reasonably necessary, including inspection, fumigation, disinfection, sanitation, pest extermination, and destruction of animals or articles believed to be sources of infection. On making this determination, the Director shall convene the travel advisory committee to advise on what restrictions, if any, to travel within or between states are required to prevent the spread of disease. Any travel restrictions imposed by the CDCTAC shall expire in twenty days unless renewed. A request for renewal beyond 60 days triggers an automatic review.
Definitions the Centers for Disease Control and Prevention Travel Advisor Committee shall be composed of 11 members. The membership should include the chair of the national governor’s association, the chair of the U.S. Conference of Mayors (if located in a different state), a representative of tribal authorities, and three members selected by each of the two majority political parties.