By Katie Moran-McCabe
Throughout the COVID-19 pandemic, legislators in almost every state have introduced bills that would limit state executive authority to respond to the current pandemic or future public health emergencies. Between January 1, 2021, and November 5, 2021, one or more of these bills were enacted into law and became effective in 19 states.
This finding is a product of a new legal mapping method called Sentinel Surveillance of Emerging Laws and Policies (SSELP), developed by researchers from our Center for Public Health Law Research at Temple University (CPHLR), with support from the Robert Wood Johnson Foundation.
This mapping method is intended to quickly capture and track emerging laws and legal innovations impacting public health, and to instigate faster evaluation of their effects on health and health equity.
The process aspires to establish the foundation for ongoing policy surveillance, allowing researchers to determine priority candidates for future scientific legal mapping in a timely manner, which ultimately supports the creation of robust legal data that can be used to evaluate emerging laws and policies. This process also aims to provide an up-to-date picture of the evolving legal landscape and movement of these legal approaches across jurisdictions and over time.
The data are meant to provide a high-level overview of laws and policies that gives policymakers, advocates, researchers and others a snapshot of a new or rapidly evolving legal landscape, rather than intended for use in evaluation like policy surveillance data. The relatively rapid process aims to allow the datasets to be updated regularly to maintain data in near real-time.
The first SSELP dataset, which CPHLR initially released in October 2021 and updated on December 2, 2021 (we said quick and we mean it!), tracks laws that limit the authority of a governor, state health agency, or state health official, regarding public health emergency orders. The dataset covers all 50 U.S. states and the District of Columbia, and includes laws that were enacted since January 1, 2021, and were effective on or before November 5, 2021. Research for the dataset was provided by the Association of State and Territorial Health Officials.
The data shows that among the 19 states that enacted laws limiting executive authority to respond to public health emergencies, 11 limited the governor’s authority, the authority of a state health agency or official, and the authority of a local health agency or official.
Some of these laws limit the duration of a state of emergency or limit emergency orders to a specific number of days (e.g., Arkansas). Others require elected officials to approve health officer actions (e.g., North Dakota), or prohibit the governor or health officials from requiring vaccination (e.g., Tennessee).
Based on history, expertise, and existing research, which is not yet conclusive or complete, there is reason to believe that laws limiting reasonable and expert public health authority may pose a threat to health. These laws that restrict state executive authority to act in times of emergency could significantly impact public health by limiting the ability to take actions necessary to respond to or mitigate crises in a swift and flexible way. While such laws may be dangerous for all people living in the United States, they are likely to have a particularly harsh effect on Black, Indigenous and other people of color due to the disproportionate impact COVID-19 has had on these communities in the United States, both in terms of their health and economic well-being.
Legislative reforms are necessary to provide guidance and standards for protecting the public during future public health emergencies. However, these reforms should be the result of careful reflection, discussion, and collaboration among a range of stakeholders. Legislative changes should allow for nuanced responses to public health emergencies that are based on evidence and the expertise of trained public health officials, and that balance mitigation measures with individual rights.
It is still too early to definitively assess the effectiveness of specific mitigation measures, or to draw firm conclusions about the optimal division of emergency powers among the branches of government. Rigorous research is needed on the role of law in shaping the powers of public health agencies, and the emergency authority of governors, in order to evaluate the impact of these powers on public health. It is also critical to know the health impacts of laws limiting state executive authority, as well as what legislative reforms could be beneficial when it comes to executing public health authority in an emergency. The new dataset released by CPHLR provides a helpful overview of the policy landscape on this topic and lays a foundation for policy surveillance datasets that would create some of the legal data necessary to evaluate these impacts.
Katie Moran-McCabe, JD, is a special projects manager at the Center for Public Health Law Research.