By Marshall B. Kapp
During the COVID-19 pandemic, the Public Health Establishment (PHE)/legal enterprise collaborative fell short of constitutional standards in a number of situations, resulting in adverse judicial rulings of which the PHE and its like-minded academic advocates now complain.
This unhappiness with judicial oversight is an opportunity for introspection. Rather than blaming nefarious or deplorable other forces, a better approach to rehabilitating and enhancing public health law in the future lies instead in the PHE taking stock of itself and committing to a more open-minded, humility infused, and objective approach to the definition of science, the role of expertise, and the better targeted and clearly justified employment of legal force in the next major public health emergency context.
There are several plausible explanations for the loss of credibility suffered by the PHE with much of both the judiciary and the public, including: the establishment’s poor readiness to respond operationally to a very rare event, despite innumerable prior table top simulations and planning conferences designed to prepare for such an emergency; social mission creep that diverted attention from the PHE’s primary responsibility to protect the public’s welfare from just the sort of threat posed by COVID; and the unfortunate but inevitable (and bipartisan) intrusion of political agendas into PH policy making and implementation.
The loss of credibility with, and previous virtually unquestioning deference by, the judiciary was reflected in several case decisions holding that government actions had overreached and exceeded legal boundaries, either by attempting to regulate via executive branch action without adequate statutory authority or by violating constitutionally protected individual liberty, religious, or property rights in the absence of outweighing societal justification. The temerity of the courts in properly fulfilling the judiciary’s institutionally assigned oversight role (let alone the cheek of a portion of the general populace to question the PHE’s supposed experts’ assertions) has not set easily with a surprised and personally offended PHE and its academic fandom and media publicists. What explains this dismayed reaction to the judicial branch’s chutzpah in questioning the usual “public health is different” claimed exception to otherwise accepted constitutional norms, and why is this reaction counterproductive?
A large part of the explanation resides within the PHE itself. Relying pre-COVID pandemic on the judiciary’s dependably and excessively expansive application of the century-old Jacobson v. Massachusetts landmark precedent, the PHE had become complacent about its regulatory command-and-control power in the sacred health arena, and therefore frankly arrogant and often condescendingly off-putting (“I am the Science”). The assumption that reciting the incantation “Public Health Emergency” enough times and with sufficient decibel level thereby commanded the courts and the public to automatically defer to the establishment’s “experts” even when the scientific knowledge at that juncture was unsettled or at least ambiguous had become the PHE’s norm. A significant component of the remedy to restoring the PHE’s credibility and respect lies in endowing public pronouncements and actions with at least a smidgeon of humility, recognizing and acknowledging that deference to the experts must be earned. Namely, it must be earned by convincing the courts and the public that, not only does society/the state have a legitimate or even compelling interest in addressing a particular emergency, but also that the weight of scientific knowledge (which may and often does encompass competing honest, non-frivolous viewpoints) available at any point in time demonstrates at the least a rational relationship between the state interest and the means chosen to protect and promote that interest.
By no means should the PHE be unduly shackled during a true public health emergency (as opposed to one that is declared or subsequently extended indefinitely mainly for raw political purposes), and the PHE is not so shackled today. Citizens expect and deserve vigorous leadership at all levels of government during an emergency. But, as numerous commentators have observed, the Constitution and the Separation of Powers doctrine that it enshrines and has served this country well do not take a vacation even in times of public health danger. Law-making authority still must be exercised by elected, publicly accountable legislative bodies whose policymaking decisions take into account both the anticipated benefits and costs of specific interventions, and by executive branch agencies and officers operating within the boundaries of particularized rule-making responsibility that has been clearly delegated by the legislative branch.
Moreover, when the PH establishment partners with the law to command and control the populace during an emergency, some constitutionally protected personal and property rights of individuals often (and sometimes unavoidably) will be infringed. It is altogether fitting today that, in such situations, legislative and executive actions undertaken under the banner of public health be put to its proof that the public interest, as best that interest can be realistically estimated with the tools and data available at that time, outweighs the infringement, and that the specific legal requirements imposed are tightly enough connected to likely achievement of the public objectives.
Marshall B. Kapp, J.D., M.P.H. is Professor Emeritus, Florida State University College of Medicine; Adjunct Faculty, FSU College of Law.