Though courts have largely sided with governments in challenges to shutdown orders, experts say states should clarify the scope of emergency powers to avoid these disputes in the future.
(CN) — The United States’ response to the pandemic is a story of failed leadership, missed chances and untold tragedy. How did the law worsen this disaster? How can it help the country recover? Fifty legal experts tackled these questions in a comprehensive report released Tuesday.
Back in October, the world’s richest country won kudos from the world of academia. In a Global Health Security Index led by Johns Hopkins University, which looked at nations’ ability to prevent, detect and rapidly respond to epidemics, the U.S. ranked No. 1. out of 195 countries.
The index’s authors apparently believed because the federal government had prepared for a widespread viral outbreak—even conducting an exercise in August 2019 called “Crimson Contagion,” simulating a novel respiratory virus spreading from China across the globe—the preparation would easily be put into practice. The simulation predicted shortages of basic medical supplies, or personal protective equipment, during a global influenza pandemic
Skip ahead five months. It’s February and China’s in lockdown struggling to contain an outbreak of Covid-19, the respiratory disease caused by the novel coronavirus. A Department of Health and Human Services official warns his bosses he is alarmed about the scarcity of N95 masks, swabs and syringes. But they stop the Food and Drug Administration commissioner from telling companies to ramp up production because “such calls would alarm the industry and make the administration look unprepared,” the Wall Street Journal reported.
In late March, hospitals in New York were warning the public they did not have enough ventilators for all the Covid patients and stacking bodies out back in refrigerated trailers, as their staff recommissioned plastic garbage bags into protective gowns due to shortages of personal protective equipment, or PPE.
Every state had declared an emergency by then, giving their governors broad authority to issue directives to stifle the virus. The pandemic unleashed a torrent of litigation with business owners, churches, and citizens challenging state shutdown and mask orders as unconstitutional overreach.
Despite the pushback, the measures appeared to be working. In parlance that has become familiar to everyone, the restrictions flattened the curve of infections from March to May. Though as experts say in Tuesday’s report titled “Assessing Legal Responses to Covid-19,” it is difficult to disentangle the effects of specific requirements.
Then politics got in the way of public health. With tens of millions of people losing their jobs and filing for unemployment, President Donald Trump started leaning on states to reopen their economies.
“The quick removal of restrictions in many jurisdictions was prompted not by public health guidance, but rather by political pressure from President Trump and his supporters, protests organized by conservative groups, and a large number of lawsuits challenging stay-at-home orders and business closures,” wrote report contributor Lance Gable, a law professor Wayne State University in Detroit.
Texas, Florida, Arizona and Georgia, all led by Republican governors, reopened quickly and were forced to put some restrictions back in place as their cases spiked.
Texas Governor Greg Abbott recently said hospitalizations and the state’s rate of positive Covid-19 tests have to decrease before he will let bars reopen. This week, Texas became the fourth state with more than 10,000 Covid-19 deaths, joining New York, New Jersey and California.
Bar owners in Austin brought a federal lawsuit against Abbott on June 30, claiming shutting them down is unconstitutional. Though courts have largely sided with governments in shutdown-order challenges, Gable said in the report, states should clarify the scope of emergency powers to avoid these disputes in the future.
Gable told Courthouse News he believes states, not Congress, should address the issue through legislation.
“I do not think that a constitutional amendment granting immunity to state governments from legal challenges to their public health powers is feasible, necessary, or wise. I also do not think that this is an issue that even warrants congressional or other federal-level actions,” he wrote in an email.
According to Gable, another tragedy in the U.S. response is federal and state governments did not use the time when most people were abiding by stay-at-home orders to ramp up testing and contact tracing.
Experts say delays in test results have rendered contact tracing worthless as infected people can interact with dozens of others before it is known they have the virus.
Seton Hall University law professor Jennifer Oliva believes contact tracing apps developed by Apple and Google and other companies can fill the void for states. But she says Congress needs to pass laws to safeguard users because federal privacy rules do not apply to info collected by private companies.
Oliva wrote in the report, “Traditional contact or ‘case’ tracing is a long-standing pillar of public health infectious disease prevention and mitigation dating back at least 500 years to medieval European bubonic plague outbreaks.”
She said even if much less than 60% of the population used a contact tracing app, Covid infections and deaths would be reduced.
“Every contact traced has the potential to save lives,” she said in an email.
The pandemic has led to a major increase in absentee voting as Georgia, Iowa and Michigan mailed ballots to all their registered voters for this year’s primary elections and California will do the same for the November presidential election.
Politics also has entered the fray, with Trump claiming widespread use of mail-in ballots will open the door for fraudsters and undermine the public’s confidence in the results. Democrats claim Trump installed his ally Louis DeJoy to lead the Postal Service in May to roll back the regular delivery of mail so people’s ballots will not be received in time to be counted.
David Becker of the Center for Election Innovation and Research said in Tuesday’s report that although Congress gave states $400 million in election support funding in pandemic relief legislation, they need more.
“Holding elections during a pandemic is more costly. As voting rules may change (sometimes at the last minute), polling places are relocated, and there are new options for voters (like voting by mail), the need for constant communication with voters becomes more critical and more expensive,” he wrote. (Parentheses in original.)
Becker predicts election watch parties will go longer than one night this November.
“Officials should reset expectations regarding the time that may elapse before results are known,” he wrote.
There is no mention of partisanship in the legal experts’ report but many of their recommendations align with those of Democratic lawmakers.
With millions of people losing their employer provided health insurance when they lost their jobs, the experts recommend an expansion of Medicaid. They say to give the 14 states that have declined to expand their Medicaid programs under the Affordable Care Act an incentive to do so, the federal government should offer to cover 100% of their Medicaid costs for three years.
Republicans are trying to strike down the Affordable Care Act, President Barack Obama’s signature legislation. The U.S. Supreme Court is expected to hear oral arguments this fall. To fortify their safety nets in the event the federal law is struck down, the experts say states should enact individual health insurance mandates, prohibit insurers from refusing to cover people with preexisting conditions and provide a publicly funded option for people who don’t qualify for Medicare or Medicaid, or have health insurance through their employer.
The experts also called on Congress and state legislatures to extend eviction and foreclosure moratoriums; increase funding for SNAP food benefits and repeal laws prohibiting drug felons from receiving them; provide funding for businesses to give workers more paid sick leave; extend unemployment benefits to undocumented immigrants; and release nonviolent people from immigration prisons.
Nursing home residents have been hit hard by the pandemic, by some estimates accounting for 40% of Covid deaths in the U.S. The report says the Occupational Safety and Health Administration, or OSHA, should crack down on owners who do not keep their facilities clean.
Given nursing homes’ struggles containing the virus, state and federal legislators have proposed granting them immunity from lawsuits. Not a good idea, University of Arizona law professor Tara Sklar said in the report.
“A central argument of industry groups requesting immunity is the national shortage around PPE and testing kits that limits their ability to control the spread of Covid-19 in facilities,” Sklar wrote. “While there are valid concerns regarding the unprecedented nature of Covid-19, these concerns do not justify granting immunity to an industry with a history of misconduct that has failed to implement basic health and safety procedures.”
Besides strengthening OSHA’s regulatory teeth, the experts say Congress should make the Centers for Disease Control, now part of the Department of Health and Human Services, an independent agency, to insulate it from political interference.
Covid-19’s disproportionate toll on people of color has been well-documented. In Texas, for example, Hispanics are 40% of the population, but as of July 30 they accounted for 48% of the state’s Covid deaths. The report says the CDC and states should improve data collection so demographics can be analyzed and inform policy decisions.
Johns Hopkins University’s Global Health Security Index will be released again this fall and the U.S. will undoubtedly fall from the top spot. Across the globe, the United States is No. 1 in Covid infections (5.44 million) and deaths (170,558), according to the university’s Coronavirus Resource Center.
The 50 legal experts who weighed in place the blame at the top.
“This is not a failure of resources…This is not a failure of individual courage … This has been, first and foremost, a failure of leadership and the implementation of an effective response,” the 260-page report states.