By Daniel Goldberg
Pandemic planning documents and materials from the early 2000s to the present anticipated a great deal of what the U.S. has been experiencing during the COVID-19 pandemic. The best of such plans documented exactly what be required to manage, respond, and control a pandemic spread by a highly communicable respiratory virus like SARS-CoV-2.
What the plans did not account for was what we are now experiencing: That governments would simply refuse to govern.
Few truly accounted for the possibility that the very entities charged with regulating for the health, safety, and welfare of their residents and citizens would simply decline to do so, choosing instead the public health law vacuums in which we find ourselves at the present time.
Law as a Social Determinant of Health
One of the foundations of the entire field of public health law is that law is a powerful social determinant of health.
The laws and social policies we have determine, to a very great extent, patterns of health in human societies. Laws and social policies not only shape patterns of absolute health in a given society, but also go a long way in determining which populations and communities have relative health gains/losses — in other words, they have important distributional effects.
Burdensome or inappropriate laws obviously can have an adverse impact on public health, but so too can the absence of critically needed public health laws. This latter phenomenon can be termed a “public health law vacuum,” and it has had, and continues to have, devastating consequences in the COVID-19 pandemic.
Federalism & Public Health Law
To understand exactly how and why these vacuums arise, it’s important to begin with federalism, or the sharing of power between the federal and the state governments. To oversimplify, federalism is essentially a vertical geography (Figure 1) – power to govern flows up and down the axis between federal and state governments.
While the federal government relies on its enumerated powers to regulate in the name of public health, states derive their public health authority from its plenary or police powers (those acknowledged in the Tenth Amendment to the U.S. Constitution).
Generally, the scope of state powers is vast. States’ power to regulate for the health, safety, and welfare of its residents is unenumerated, the fact of which dramatically expands the scope and reach of such authority. Unlike other government entities, state legislatures do not need to point to a particular grant of authority that permits them to act to protect the public’s health or welfare. Such authority is of course not infinite; state legislatures can narrow the scope of public health authority by statute, and civil liberties protections (in constitutions or statutes) also limit the reach and power of public health laws (e.g., to the extent public health laws impinge on fundamental rights or create suspect classes, they may be constitutionally impermissible).
Given the vast scope of state police power, challenges to public health orders derived from this source of authority typically are less a question of “Can they do that?” but rather “Who can do that?”
On the state level, such challenges often track Separation of Powers (“SoP”) questions rather than Federalism questions. SoP inquiries track horizontal, rather than vertical, geography (Figure 2). In other words, power is shared between three co-equal branches of government, and the question isn’t whether the proper authority is the state or the federal government (Federalism), but rather, which branch of state government has the authority to issue this order?
Typically, states understand that public health emergencies often require rapid response that is not well-suited to legislative action (unlike federal congressmembers, state legislators serve on a part-time basis and may only meet once every year or two). Therefore, legislatures typically delegate some of their police power to be exercised at the discretion of the executive during a declared emergency. This authorization enables the executive branch to respond quickly to public health emergencies using delegated emergency powers.
While virtually every governor in the U.S. has implemented public health orders in the face of the COVID-19 pandemic (i.e., closures of certain businesses, capacity restrictions for congregate settings, mask mandates, etc.), some state legislatures have pushed back on executive authority, arguing that the executive branch has exceeded the scope of the legislature’s delegation.
Courts in some states have sided with the legislatures. For example, relying on the language of the statute authorizing the governor to issue orders during public health emergencies, in May 2020 the Supreme Court of Wisconsin struck down Secretary-Designee Andrew Palm’s public health orders. The court observed that while “[c]onstitutional law has generally permitted the Governor to respond to emergencies without the need for legislative approval … in the case of a pandemic, which lasts month after month, the Governor cannot rely on emergency powers indefinitely” (p. 23-24).
In a similar dispute, in October 2020, the Supreme Court of Michigan ruled that some of Governor Gretchen Whitmer’s emergency orders violated the nondelegation doctrine, which essentially means that the legislature could not have delegated, constitutionally, so much of its police power without doing so in more specific terms that provide adequate guidance from the legislature regarding how executive discretion should be exercised.
The critical point is that, in all of these cases, the question is not ‘can these orders be issued?’ but is rather ‘who is the right party for issuing these orders?’
Depending on the particular ways a state has chosen to arrogate public health authority, the power to regulate for a public health emergency may belong to the executive branch (e.g., the governor, state agencies, etc.), the legislative branch, or shared between the two. While public health powers are not boundless, there is little doubt that states have ample legal authority to prepare for and respond to an ongoing pandemic in numerous ways.
The undeniable ethical tragedy is that in many cases, actors with the sovereign authority to respond to the COVID-19 pandemic have abdicated. They have chosen to thwart the efforts of those exercising their public health powers, and have chosen not to exercise their own authority to act.
In its May 2020 decision, the Supreme Court of Wisconsin was obviously aware of the implications of striking down the governor’s authority to respond to the pandemic, explicitly encouraging the legislature to work with the executive branch to enact sensible public health governance for pandemic response and control:
we trust that the Legislature and Palm have placed the interests of the people of Wisconsin first and have been working together in good faith to establish a lawful rule that addresses COVID-19 and its devastating effects on Wisconsin. People, businesses and other institutions need to know how to proceed and what is expected of them. Therefore, we place the responsibility for this future law-making with the Legislature and DHS where it belongs (p. 32).
Between May 14 and the time of this writing, the Wisconsin Legislature has not enacted a single piece of public health legislation. Instead of affirmatively acting to take over the reins of emergency response from the governor using the means prescribed in their own duly enacted statutes, the legislature asked the courts to lift public health orders and offered little in their place.
The resulting absence of governance is a public health law vacuum. The executive branch in Wisconsin tried to regulate in the name of public health by issuing emergency orders. The judicial branch ruled that the executive had overstepped the authority delegated by the legislature. The legislative branch, by virtue of its police power, is therefore the branch empowered to respond as needed to the unfolding COVID-19 pandemic. Yet it has chosen not to act. Consequently, since mid-May, public health governance has been limited in crucial ways, and officials have had to strain to implement public health orders using more limited authority.
Of course, the federal government has also created a public health law vacuum on a national level. Although its powers to regulate for public health are in some sense more limited by the federal structure, there is no question that the federal government has had enormous opportunity to govern in a variety of different ways for pandemic response and control, e.g.,
- Using its deficit spending and purchasing power and authority to coordinate international and interstate supply chains to good effect in competitive markets, international supply chains for PPE, raw materials for vaccine production, and other important tools for pandemic response;
- Using the Defense Production Act to ramp up needed supplies and tools;
- Enacting laws and regulations providing (just by way of example):
- housing relief;
- wage loss compensation;
- disability benefits and assistance;
- unemployment benefits;
- financial assistance to small business owners;
- direct financial assistance to towns and cities;
- federal financial assistance for state and local public health infrastructure;
- student loan relief;
- Coordinating and implementing COVID-19 vaccine rollout and penetration with the states.
These examples are obviously illustrative. There is much more the federal government could have done and still could do to regulate in the name of public health emergency response (and preparedness for the future).
Historians of public health understand that virtually everything is precedented. While obviously outbreaks and epidemics vary considerably from place to place, there is much that is predictable about what a given episode will demand of the society in which it unfolds. Indeed, if this were not the case, it would make little sense for the field of public health emergency preparedness to even exist, because by definition the resources needed to respond would be ex ante unpredictable!
But even the best pandemic planning cannot account for elected representatives refusing to govern in the name of public health. And this is precisely what is happening in the U.S. during the COVID-19 pandemic at national, state, and local levels.
We can make different choices, of course. We can choose to govern. Many towns, cities, and states have already been doing so. We will need more of these kinds of choices in the next 6-12 months.
The author would like to thank Lindsay Wiley, JD, MPH, for reading and commenting on an earlier draft.