Pandemic powers: Examining law and policy efforts

In recent months, the terms “COVID fatigue” or “pandemic fatigue” have been used to describe the exhausted state of mind many people have endured because of lifestyle changes brought forth by the global pandemic. The public health crisis has become politically charged, adding to the complexities and nuances of fighting and preventing the spread of a deadly virus.

The legal landscape is also changing, rapidly, as new policies and mitigation efforts are introduced and challenged in court. Most recently, President Joe Biden announced new federal vaccine requirements that affect as many as 100 million Americans. For weeks, private businesses have been implementing vaccine mandates for employees, while school districts have been advocating for mask mandates to keep children safe.

At the center of the crisis is public health law and policy — important work necessary to keep communities safe. A number of questions have arisen alongside this work about how much power a state or the federal government might have in a time such as this.

To help answer some of these questions, ASU News spoke with James Hodge, the Peter Kiewit Foundation Professor of Law at the Sandra Day O’Connor College of Law and the director of the Center for Public Health Law and Policy at Arizona State University, and Jennifer Piatt, a research scholar at the Center for Public Health Law and Policy at ASU.

Question: The COVID-19 pandemic is unlike any other pandemic we’ve seen in our lifetimes. What legal duties do governments have to keep people safe?

James Hodge

James Hodge: With over 660,000 American deaths due directly to COVID-19, the pandemic is unquestionably the greatest public health threat the U.S. has faced in over a century. Since the 1918–1919 Spanish flu pandemic, we’ve clarified the legal duties of federal, state, tribal and local governments to protect the public’s health from stealthy, communal diseases. There may be no greater responsibility across all levels of governments than assuring the health and safety of populations. It’s embedded in constitutional theory, reflected in statutory and regulatory laws, and recognized by courts in balance with individual rights and interests. Yet, as the pandemic drags on, it has sorely tested our political will to use these powers effectively and fully to save lives and prevent excess morbidity. 

Q: In a public health emergency, how much power do the federal or state governments have to help keep people safe? 

Hodge: Federal and state governments are well-positioned with a bevy of public health emergency powers to respond to the pandemic. While the federal government’s powers are constitutionally enumerated, their invocation is supreme over conflicting state laws. Both Presidents Trump and Biden have declared, or sustained, multiple levels of emergency with coextensive powers and resources. They have also classified the pandemic as a national security threat, invoking exclusive federal roles and responsibilities.

States are major players in pandemic response efforts as well. As sovereign governments, they possess what are known as “police powers,” which allow them to act in the interests of public health and safety. State police powers are expansive and encompassing, subject to federal supremacy and constitutional limitations. They authorize distinct emergency efforts. This past year all 50 states declared various states of emergency in response to COVID-19 — the first time this has ever happened. Some states’ governors that rescinded their emergency declarations in early summer have had to re-declare them again in response to the spread of the delta variant.

Q: Many businesses are issuing vaccine mandates, especially as full FDA approval is granted for specific COVID-19 vaccines. What rights do businesses have to impose these mandates, and will challenges hold up in court?

Jennifer Piatt

Jennifer Piatt: Private employers have long been able to require employee vaccination. Employers must comply with federal protections pursuant to the Equal Employment Opportunity Commission (EEOC) and other applicable laws in their implementation of mandates. Toward the end of last year, employers began wondering whether the emergency use authorization (EUA) status of COVID-19 vaccines would change that approach. On June 12, 2021, a federal district court in Texas gave an answer — federal language in the Food, Drug, and Cosmetic Act specifically addressing EUA products does not prevent employers from mandating EUA vaccines. On July 26, the federal Department of Justice’s Office of Legal Counsel concurred with the court’s judgement in an opinion letter. Other cases addressing federal constitutional arguments have also generally supported vaccine mandates, though state laws recently enacted may affect permissible approaches in a specific state. That said, legal issues surrounding vaccination are continuing to shift in real time. The Biden administration recently announced that the Occupational Safety and Health Administration (OSHA) is currently at work on an emergency standard which will require all businesses with more than 100 employees to mandate COVID-19 vaccination.

Q: Many of the preventative measures used in the beginning of the pandemic like mask mandates are now being blocked legally in select states. How are health officials and the public responding to these efforts legally?

Piatt: As addressed in our recent piece “Legal Interventions to Counter COVID-19 Denialism,” forthcoming in the Journal of Law, Medicine and Ethics, certain states have acted to limit public health powers, target mask mandates and prevent vaccination requirements, but there are several legal avenues still available for public health or other actors. Some limiting actions may face constitutional challenges. For example, a court preliminarily blocked application of a Florida law against Norwegian Cruise Line which would have prevented the business from requiring proof of COVID-19 vaccination. The court found the law violated First Amendment free speech protections and unconstitutionally burdened interstate commerce. Federal preemption and spending powers, as well as other laws prohibiting discrimination, may also limit or supersede conflicting state measures. CMS (Centers for Medicare & Medicaid Services) recently announced that nursing facilities would be required to implement staff vaccination to continue receiving funds. Other pathways include utilizing emergency waiver powers, or even reconsidering limiting actions against the specter of potential liability. In sum, though legal interventions may seem to curb public health action in certain states, avenues to challenge, supersede or avoid those denialistic actions remain available, and are continuing to change the legal landscape in real time.

Q: Based on what we've learned from COVID-19, what types of public health policy changes do you think need to be made to prepare for future disease outbreak or pandemics?

Hodge: Every major public health emergency event over the last two decades since the 9/11 terrorist attacks has led to systematic legal reforms designed to strengthen preparedness and response efforts. The unprecedented health impacts of the COVID-19 pandemic, however, are a catalyst for the most significant changes in the legal landscape ahead. In my view these include: 1) A substantial shift toward federal powers and prominence to quell pandemics; 2) Major health system reforms to ameliorate gross health disparities in pandemic response efforts; and 3) A recalibration of individual rights against the backdrop of critical public health emergency powers. Americans came into this pandemic with a perception of their constitutional rights. They’ll leave with a different view of these interests under a burgeoning body of court jurisprudence.

Piatt: A few of the most consistent themes I’ve seen emerging across all fronts during the COVID-19 pandemic are: 1) The necessity to implement a health-in-all-policies approach; and 2) The importance of prioritizing equity in all actions. The COVID-19 pandemic has continued to demonstrate the effects of policies which do not consider potential health repercussions, when those repercussions ultimately come to fruition, and has laid bare the disparities that must be confronted in future policy actions to ensure that all U.S. residents may truly be healthy.

For media inquiries, please contact Jimena Garrison, ASU media relations officer, at Jimena.Garrison@asu.edu.

Top image by Nataliya Vaitkevich from Pexels