Document Type

Article

Publication Date

2022

Abstract

Legislators, agency officials, and the public have a lot to learn from the United States’ experience in responding to the COVID-19 pandemic. If policymakers take seriously their responsibility to identify past mistakes, and then act now to prepare for future viral outbreaks, the nation can do better in the next crisis. One needed change will take the form of clarifying the essential role for the national government and its leadership in responding to pandemics. The United States needs to create a structure for a pandemic federalism that temporarily but responsively allows for a reconfiguration of public health authority, such that the federal government can lead a rational, nationally coordinated strategy that meets the challenges posed by an interstate public health emergency. That national coordination worked best with the United States’ rapid development and availability of COVID-19 vaccines. But in all other respects, the nation’s track record with the pandemic has been otherwise abysmal, as the nation has suffered more than a million deaths along with inestimable grief, pain, and economic dislocation. The United States’ federalist tradition of governance—which has historically given states the primary role for addressing public health—has contributed to the nation’s unnecessarily excessive losses. Federalism has complicated governance and contributed to a disorganized and fractured public health response. States’ assertions of sovereign authority during the pandemic have repeatedly muddied, if not undermined, effective risk communication, as national and state officials delivered conflicting messages to Americans about the importance of mask-wearing and vaccination. Federalism also enabled national officials to disclaim their own responsibility in responding to the crisis, such as by leaving states early in the crisis to fend for themselves in procuring personal protective equipment. Key court decisions, handed down with federalist principles expressly in mind, have also constrained the national government’s authority to act to protect the public health in the face of an interstate emergency. Congress will need to enact legislation to supersede these legal decisions and clarify the national government’s vital authority and responsibility to act in response to future viral outbreaks.

Keywords

Public health, national and state government, policy coordination, SARS-CoV-2 virus, viral outbreaks, cross-border movement, state police power, public administration, health governance

Publication Title

Wayne Law Review

Publication Citation

68 Wayne L. Rev. 1 (2022)

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