By Elizabeth Weeks
The most promising path forward in public health is to continue recognizing federal authority and responsibility in this space. I carefully choose “recognizing,” rather than “expanding” or “moving” because it is critical to the argument that federal authority for public health already exists within the federalist structure and that employing federal authority to address public health problems does not represent a dimunition of state authority. Rather than a pie, of which pieces consumed at the federal level necessarily reduce pieces consumable at the state level, we should envision the relationship as a Venn diagram, where increasing overlap strengthens authority for promoting and protecting public health broadly.
That approach successfully transformed public and private health care — albeit not without challenges for coordination and political resistance — through the Patient Protection and Affordable Care Act of 2010. Nicole Huberfeld has long advocated even greater federalization of Medicaid because the traditional cooperative federalism frame serves neither the program beneficiaries nor federalism values well. We deliberately organized our health law casebook (since our first edition, and now on the brink of our third) to reflect that shift in emphasis toward federal authority, particularly in regulating health insurance markets that traditionally were the domain of state business and consumer protection laws. President Biden deployed a similar approach immediately following his inauguration to address the ongoing COVID-19 pandemic through an array of federal requirements.
Historically, public health law primacy resides with states via their core, Tenth Amendment reserved police powers to address residents’ health, safety, and welfare. The COVID-19 pandemic was no exception, with states and localities responding variously in implementing stay-at-home orders, social distancing requirements, mask mandates, and, later, vaccine mandates, resulting in a scattershot timeline and protections across the country. For all the values of federalism (i.e., reducing risk of federal tyranny, enhancing democratic rule through government closer to the people, and allowing states as laboratories of democracy), a highly communicable, novel disease that necessarily does not abide state boundaries is not a scenario in which the public or the structure of government is well served through decentralized approaches.
In January 2021, the number of COVID-19 cases in the United States were trending back to early pandemic levels and on-pace to be deadlier than 2020. But as we moved into the second year of the pandemic, tolerance for state-ordered closures and mitigation measures was waning and political resistance was rising. Yet the threat was far from gone. The Biden Administration’s approach was comprehensive, broad scale, and creative. One can almost imagine a brainstorming session in which every possible authority, every possible federal hook, every exceptional procedural path was given credence. On Inauguration Day, January 20, 2021, President Biden issued Executive Order 13991, requiring federal workplace compliance — including on-site and on-duty federal employees, contractors, and other individuals in federal buildings and on federal lands — with Centers for Disease Control and Prevention (CDC) guidance regarding social distancing, mask-wearing, and other public health measures. On September 9, 2021, Executive Order 14043 further required all federal employees to be vaccinated by November 2022. A separate Executive Order 14042 issued the same day required vaccination of all public or private employees working on or in connection with certain federal contracts.
Not only through Executive Orders but also via congressionally delegated authority to executive branch agencies, the Administration sought to reach even greater swaths of workers. A particular subtype of federal contractors, health care entities participating in the federal Medicare program, faced a new condition of participation for the program — requiring employees to be vaccinated. This was accomplished by the U.S. Department of Health and Human Services’ Centers for Medicare and Medicaid Services (CMS) issuing an interim final rule on November 5, 2021, shortcutting the full-blown notice and comment rulemaking process. The Occupational Health and Safety Administration (OSHA) issued an even broader, exigent agency action, an emergency temporary standard, requiring employees of large employers to be vaccinated or mask and test weekly. The CMS and OSHA rules, combined, would affect over 100 million individuals: 17 million at approximately 76,000 health care facilities, and another 84 million at OSHA large employers (defined as having 100 or more employees). Each of these workplace orders faced robust legal challenges, including two cases proceeding to the U.S. Supreme Court, and only the CMS mandate survived.
Another interim final rule, issued November 30, 2021, applied to federally funded Head Start programs, requiring vaccinations for staff, certain contractors, and volunteers, universal masking indoors, and outdoor masking if in close contact with others and not fully vaccinated. The Head Start order remains effective. The Secretary of Defense in August 2021 mandated vaccinations for all armed services members, which had resulted in the discharge of 8,400 troops for refusing to comply, and which the Biden Administration, reluctantly, recently lifted.
Beyond the workplace, the CDC, via Notice of Agency Order, in February 2021 required masks for all personnel and passengers aged two or older on airplanes, trains, buses, ships, and other modes of public transportation and in transportation hubs within the United States. An April 2022 court order struck down the transportation order, effective immediately. In a briefly lived Agency Order, the CDC further sought to address the spread of the virus through housing law, extending and broadening a congressional moratorium on evictions to all residential properties nationwide (rather than just properties under federal assistance programs or subject to federally backed loans, as Congress had provided in the CARES (Coronavirus Aid, Relief, and Economic Security) Act for non-payment of rent or housing payments. On August 26, 2021, the U.S. Supreme Court also ended this order.
Given the rather dismal track-record of the Biden Administration’s assertion of federal authority to protect the public’s health during the COVID-19 pandemic, one might fairly question my opening proposition that federalizing public health is the most promising path forward. Certainly, federal authority will not replace or consume state and local authority. But just as we endured decades of partial or failed federal attempts to address inequities and inefficiencies in health care, we likewise can characterize the recent activity in public health as critical steps along a path forward, a compulsion to intentionally assess the scope of federal public health authority, and an opportunity for increased public awareness of the values of centralized, coordinated response.
Elizabeth Weeks is Associate Provost for Faculty Affairs at the University of Georgia and the Charles H. Kirbo Chair in Law at the School of Law.