June 20, 2024

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States Adopt Dangerous Legal Reforms Undercutting Public Health Emergency Powers

Some of the procedural checks that states adopted could be helpful, the authors noted—for example, requirements that officials provide explanations for the health orders they issue. But other legal reforms could hobble emergency response, especially reforms that take key community-mitigation interventions like vaccination and mask mandates and stay-at-home orders off the table.

They also argue that some legal reforms “contort federalism” in ways that may undermine emergency response and exacerbate inequities. In three states, for example, federal orders won’t be enforced if state officials believe them unconstitutional, regardless of court rulings. Other states have adopted “pre-emption” rules barring local governments from adopting stricter disease-control measures than their state. 

Such provisions “undermine communities’ ability to defend themselves in the face of inaction at the state level—for example, by deciding that their schoolchildren must wear masks,” the authors wrote. Although “legal reforms should reflect a coherent vision of federalism …, these reforms merely advance a political ideology privileging `health freedom’ over health protection.”

Failures of Legal Infrastructure

The researchers note that even prior to these reforms, the nation’s legal infrastructure contributed to three key problems with the U.S. response to the pandemic:

  1. There is nothing in the constitution or any emergency powers statutes that requires federal or state officials to act in response to health threats. This allowed some states to delay shutting down schools or lift stay-at-home orders too early, allowing the disease so continue to spread.

    “The federal response was also slow and riddled with missteps, leaving states to fill the gap,” the researchers wrote. “This reliance on states for action had predictably varied results, in many respects along lines that reinforced pre-existing socioeconomic and health inequalities and contributed to the pandemic’s disproportionate burdens on disadvantaged communities.”

    2. “When the federal government did attempt to mount a robust response to COVID-19, it found itself constrained by the courts,” the authors wrote.  As Mello noted in this NEJM perspective, the Supreme Court limited the ability of federal agencies to implement mitigation measures, calling on Congress to give them the authority to do so.

    3. Finally, state emergency powers are not set up to meet the challenges of a multiple year pandemic. “The laws were designed for short term, localized emergencies such as a bioterrorist incident,” the authors wrote. “Most do not clearly provide authority to impose orders that limit the activities of large groups of people for extended periods.”

An accompanying editorial in the BMJ’s COVID-19 series notes the nation’s pre-existing structural and systematic features contributed to the devastating pandemic outcomes. 

“These include gaps in healthcare and public health systems, the absence of social safety nets and workplace protections, social inequality, and systematic racism,” the authors of the editorial wrote, adding that even while the U.S. had many scientific resources—such as the rapid development of vaccines—the government couldn’t communicate reliable information and then translate it into policy. 

Legal Reforms Moving Forward

Mello and her coauthors argue that future legal reforms should focus on enhancing accountability rather than reducing powers. 

“Emergency powers laws were designed to give officials broad discretion to choose the means to combat threats because of the impossibility of knowing what may be needed,” they wrote. “Dissatisfaction with how this discretion was wielded during the covid emergency should inspire conversation about procedural checks—not elimination of crucial public health legal tools.”

Appropriate procedural reforms can also help build trust in public health law, the authors concluded, a “crucial” priority going forward.

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