President Joe Biden at desk in Oval Office.

Federalizing Public Health

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.

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The United States Capitol building at sunset at night in Washington DC, USA

The End of Public Health? It’s Not Dead Yet

By Nicole Huberfeld

Once again, health law has become a vehicle for constitutional change, with courts hollowing federal and state public health authority while also generating new challenges. In part, this pattern is occurring because the New Roberts Court — the post-Ruth Bader Ginsburg composition of U.S. Supreme Court justices — is led by jurists who rely on “clear statement rules.” This statutory interpretation canon demands Congress draft textually unambiguous laws and contains a presumption against broadly-worded statutes that are meant to be adaptable over time. In effect, Congress should leave nothing to the imagination of those responsible for implementing federal laws, i.e., executive agencies and state officials, so everything a statute covers must be specified, with no room for legislative history or other non-textual sources.

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NEW YORK - CIRCA DECEMBER 2020: Crowd of people wearing masks walking in the street.

The Pandemic Policy Excuse of ‘Meeting People Where They Are’

By Daniel Goldberg

Too often throughout the COVID-19 pandemic, policymakers have justified controversial policy choices by stating that the world is not arranged in a way to make certain actions feasible. While practical difficulties matter, permitting such difficulties to exhaust the scope of our ethical obligations is a grave mistake that moves us farther away from a just and equitable world.

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Freeway on-ramp

The Government Needs to Construct On, Not Off, Ramps to Combat the Latest Wave of COVID

By Jennifer S. Bard

Over the past two weeks, the news coming in about the spread of COVID-19 has been eerily familiar. Cases are rising all over Europe, not just in under-vaccinated Eastern European countries, but in England, the Netherlands, and Germany — all of whom have much higher rates of vaccination than the U.S. At the same time, cases across the U.S., including in cities like LA, DC, and Chicago have stopped falling, and are rising rapidly in the Mountain West, including the Navajo Nation. Hospitals in Colorado have already reached crisis capacity.

Whether the increase is attributable to the emergence of yet another variant, or perhaps is a natural artifact of waning immunity, it is very real and demands a level of attention from our federal government that, once again, it is failing to provide.

Yet in the face of now too familiar signs of resurgence, already being called a “Fifth Wave,” not only are the usual minimizers advocating reducing existing measures to prevent spread, but cities and states are rolling back what few protections remain intact. It is in the face of this foolish movement to drop our guard that the federal government is, again, failing to use the powers it has beyond vaccine mandates to create much needed on-ramps for mitigation measures as the country heads into winter.

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NEW YORK, NEW YORK - APRIL 05: Emergency medical technician wearing protective gown and facial mask amid the coronavirus pandemic on April 5, 2020 in New York City.

Déjà Vu All Over Again

By Jennifer S. Bard

The COVID-19 pandemic has shown us time and time again that whatever progress we make in curbing transmission of the virus is tenuous, fragile, and easily reversed.

And yet, we continue on a hapless path of declaring premature victory and ending mitigation measures the moment cases begin to fall. We need only look back to recent history to see why relaxing at this present moment of decline is ill-advised.

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Los Angeles, California / USA - May 1, 2020: People in front of Los Angeles’ City Hall protest the state’s COVID-19 stay at home orders in a “Fully Open California” protest.

Social Distancing, Social Protest, and the Social Constitution of a New Body of Law

By Lindsay F. Wiley

COVID-19 mitigation orders, court decisions adjudicating challenges to them, and legislation adopted to constrain similar orders in the future are constituting a new body of law governing social distancing.

The emerging law of social distancing is vital to the future of public health. It also offers more general lessons about how law interacts with individual behavior, social norms, and social contestation of what we owe each other as members of a community.

Social protests — including massive protests for racial justice and against police violence as well as much smaller anti-lockdown protests — are playing an important role in these developments.

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The White House, Washington, DC.

6 Actions the Federal Government Should Take in Response to the Delta Variant

By Jennifer S. Bard

Today, the U.S. Centers for Disease Control and Prevention took an important step in protecting the nation’s health by reinstating indoor masking for both vaccinated and unvaccinated alike, in particularly high-risk circumstances. That’s good. And so is the jump in institutions like the Veterans Health Administration requiring COVID-19 vaccination.

But we need to take more forceful action, and it needs to happen faster.

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The White House, Washington, DC.

What Can the Federal Government Do When States Make Dangerous Decisions?

By Jennifer S. Bard

The threat posed to the welfare, economy, and security of the United States by the rapidly spreading COVID-19 virus is as serious as any we have ever confronted.

But, at the same time that the federal government is spending billions of dollars on distributing vaccines, and exerting their authority by prohibiting evictions and requiring masks on public transportation, many individual states are not just refusing to take effective measures to stop the spread, but also are pouring gasoline on the fire by doing all they can to undermine even the remaining, weak guidelines published by the CDC. Some have gone so far as to restrict the flow of information by prohibiting public health officials from disseminating news about the vaccines provided by the federal government.

The effects of these actions not only promote the spread of COVID-19, but also fuel its mutation into new forms, and cannot be confined by any existing geographic or cartographic boundary. So how is the federal government allowing this to happen? It’s not for lack of authority.

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lady justice.

The Only Constant is Resistance to Change: A Flaw in the US Response to Public Health Crises

By Jennifer S. Bard

Law can be a wonderful tool for promoting and protecting the public’s health. But its inherent bias towards stability is poorly suited to the challenges of addressing rapidly evolving public health crises.

Two current examples — the ongoing opioid overdose crisis, and the COVID-19 pandemic — illustrate the issue starkly.

In both cases, the measures needed to address these two serious crises are hampered by one of the core weaknesses of the U.S. legal system when it comes to addressing serious, ongoing public health crises: there is no mechanism to make swift, responsive adjustments to the law in the face of changing information.

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Reston, USA - April 9, 2020: Social distancing sign at cashier check-out aisle inside Trader Joe's grocery shop store during coronavirus with woman employee in mask.

Passing the Buck: What the CDC Guidance on Masks Gets Wrong About Public Health

By Carmel Shachar

As Americans shed their masks in response to recent U.S. Centers for Disease Control and Prevention (CDC) guidance, the most vulnerable among us face an unfair choice: either to enforce public health hygiene or forgo being in public spaces entirely.

The new guidance, which states that fully vaccinated people can resume activities without wearing masks or socially distancing, is too nuanced for a country in which a significant percentage of adults continue to refuse vaccination and there are no mechanisms to enforce masking or social distancing for the unvaccinated.

Ultimately, this shift in policy unfairly burdens small businesses and individuals to be the guardians of public health, when it should be our community leaders responsible for enforcing public health norms.

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