In January, when legislative sessions begin in state capitals across the country, we can expect a flood of bills to reform public health emergency authorities. Backlash legislation could hamstring officials for the next stages of the COVID-19 pandemic and tie state governments to the mast for a future crisis decades from now.
Compulsory social distancing and face covering orders have raised legal questions for which pre-pandemic precedents offered few answers: Who has authority to issue orders, by what criteria, and for how long? In 2020, the courts have issued hundreds of decisions defining the boundaries of governors’ emergency authority. Unsurprisingly, these cases have centered on the two central tensions in public health policy: the balance between the common good and civil liberties, and the balance between deliberative democracy and swift, expertise-driven responses.
In most states, executive orders closing businesses or limiting capacity, banning gatherings, restricting travel, and requiring face masks are not authorized in specific terms by public health statutes. As a result, governors have largely relied on more broadly defined grants of power in mid-century civil defense, natural disaster, and emergency management statutes drafted with hurricanes and anti-war protests in mind. In response to what they perceive as pandemic-response overreach, far-right legislators in dozens of states have introduced bills to strip governors of these essential powers.
Even if one believes officials have overreached in 2020, the next public health emergency could pose greater or different risks. It could have an even higher infection-fatality rate, as smallpox and SARS did. It could disproportionately kill or injure children, as mid-century polio outbreaks did. If our experience with reforms in the aftermath of past crises is any indication, new laws adopted in the next few years could prove critical for responding to future crises we can only begin to imagine. Lives will hang in the balance in statehouses this winter, including the lives of people whose parents haven’t even been born yet.
Stripping executive officials of emergency response powers entirely is a terrible idea. But reforms are needed to put future measures on firmer footing and ensure they reflect the policy priorities of the legislative branch.
Reforms Must Clarify, Not Eliminate, Public Health Emergency Powers
Public health emergency statutes should specifically authorize health officials (rather than governors, who tend to hold the reins on disaster and civil defense measures) to respond swiftly in a crisis. Specific authorities should be accompanied by legislatively determined principles to guide executive discretion. State public health emergency statutes already provide specific authorizations and statutory guardrails for health officials to order individually targeted measures such as isolation and quarantine. New legislation is needed to provide similarly specific authorizations and guardrails for school and business closures, travel restrictions, gathering bans, and face-mask orders. These sweeping authorities should only be triggered by public health emergency declarations. Unlike more general emergency and disaster declarations, these authorities should be contingent on a demonstrated threat of a serious communicable disease with epidemic potential—one that is believed to be caused by a novel or previously controlled infectious agent that is readily transmissible from person to person and likely to cause a large number of deaths or serious disabilities.
Reforms should facilitate democratic accountability for executive-branch decisions in addition to protecting individual rights. Six key principles should guide the development of new legislation.
Transparency Should Be Mandated By Statute
Statutes should mandate transparency, which is critical to provide accountability and secure the public’s trust. Public health orders that target specific individuals often trigger procedural rights to notice and judicial or administrative hearings where officials must present the evidence that backs up their interventions. These procedures ensure restrictions on liberty are justified by an individualized risk assessment. But individual rights to due process aren’t a good fit for generally applicable measures that restrict business operations or personal movement regardless of known contamination, infection, or exposure.
Transparency—or required reporting—is a better approach to ensure accountability and means-ends fit for compulsory orders to increase social distance and require use of face masks. To ensure orders are conditioned on a demonstrated threat of significant risk and a suitable fit between the means and clearly stated ends, mandated disclosures should include statements of the strategic purpose orders are intended to serve, the scientific understanding on which they are based, and the criteria for when they can be lifted. If achieving the state’s purpose will require federal action that isn’t already in place, that should be specified, too. Whether the stated criteria are attainable or not and whether they strike the right balance between disease control and other priorities must be left to constituents to judge and political responses to remedy.
Authorized Actions By Health Officials Should Be Time Limited But Renewable
Non-renewable time limits on emergency declarations and the special authorities they trigger (which some advocates prefer) could cripple emergency response capabilities. Most states are served by part-time legislatures that are ill equipped to ensure a nimble response. If, after 30 or 60 days, the default is to revert to zero interventions unless and until the legislature takes affirmative action, the public health consequences could be devastating. A better approach is for the legislature to authorize time-limited, but renewable, declarations, which will ensure that mandatory reporting of the current scientific basis for health officials’ response is updated periodically. If the legislature disagrees with the executive branch, it may take affirmative steps to intervene. But the default in the absence of legislative action should be ongoing authority for the executive.
Statutes Should Authorize A Scaled Response
Statutes should provide officials with a graded range of alternatives to ensure a sustainable emergency response that can be tailored to evolving conditions and understanding. To facilitate a scaled response that balances the risk of contributing to community transmission against other public priorities, classifications of services, businesses, and activities as essential or high priority should be developed in advance. All-or-nothing thinking dominated March lockdowns and May reopening plans. Legislation should permit officials to take a more nuanced approach. Specific authorizations and guidance from the legislature should give health officials more confidence that distinctions based on risk and priority will hold up in court.
Some advocates are calling for prohibitions on orders that apply to particular types of businesses or facilities, but not others. Such a bright-line rule against singling out swimming pools (for water-borne pathogens), food service establishments where people dine indoors (for respiratory viruses), and so forth could easily lead to an all-or-nothing response. Our experience with the 2020 coronavirus pandemic and past outbreaks of diseases such as polio and pandemic influenza teaches us that a targeted approach based on risk and public priorities minimizes disruption while maximizing benefit. Risk must be assessed by scientific experts in real time, but public priorities—services and facilities that should stay open even when they present significant risks—should be determined in advance, with legislative guidance.
Statutory Standards Should Promote Neutral Orders That Do Not Discriminate On The Basis Of Religion
Statutes should provide substantive standards to ensure orders do not discriminate on the basis of religion. Under the new US Supreme Court majority’s decision in Roman Catholic Diocese of Brooklyn v. Cuomo, orders that “single out houses of worship” for restrictions that do not apply to other settings—including commercial establishments, factories, and public services deemed “essential”—will be subjected to strict scrutiny. But prohibitions that define gatherings in terms of the risks posed by multihousehold groups spending sustained time talking and singing together indoors would probably pass muster if applied to secular settings as well as houses of worship.
There’s a risk that new legislation will single out houses of worship and religious gatherings for near-total exemption from public health orders. That would be terribly short-sighted. Legislation directing executive officials to craft their orders using risk-based distinctions and to define “gathering” in more specific terms would be a far better approach.
Statutes Should Require Provision Of Supports, Legal Protections, And Accommodations Of Safer Alternatives
To enable widespread voluntary compliance and minimize unjust distribution of the benefits and burdens of public health intervention, statutes should mandate that restrictions must be accompanied by financial and other material supports, legal protections, and accommodations for safer alternatives to restricted activities to the greatest extent possible within available resources.
Supports, legal protections, and removal of legal barriers to safer alternatives to restricted activities should be implemented in multiple settings. Governmental responsibility should be exercised immediately to secure the health and safety of people in custody, detention, and foster care, including through de-densification. Upon initiation of school and business closures and orders to stay at home, governments should act immediately to ensure safe, sanitary, and accessible housing conditions. Officials should strongly consider halting eviction and utility shutoffs to secure housing stability in the midst of a crisis. People experiencing homelessness should be exempted from enforcement of mandatory orders to shelter in place. Moreover, safe, sanitary, and uncrowded shelter that is physically accessible for people with disabilities should be offered to people who are unhoused or living in communal settings.
Supports, accommodations, and legal protections are also needed to shield people exposed to work-related risks, including critical-infrastructure workers, low-wage workers, and people who share a home with workers exposed to on-the-job risks. Protections should include provision of high-quality personal protective equipment, policies to reduce exposure to co-workers and customers, paid sick leave for people who are infected or exposed, and on-the-job accommodations or income replacement for people whose age, disabilities, and medical conditions (or those of a household member) put them at high risk for severe illness or death.
Officials should provide guidance and support for the general public and any particularly affected groups, businesses, or organizations regarding safer alternatives to restricted activities, including by providing access to public spaces and facilities and logistical support. This guidance and support should be provided in coordination with other federal, state, local, and tribal government authorities and private organizations.
A statutory mandate to take reasonable steps within available resources would require health officials to demonstrate that they are making an effort to provide supports without overly constraining their ability to impose restrictions. I have borrowed this approach—referred to as “progressive realization”—from international human rights instruments that require member states to demonstrate that they are taking steps to fulfill their affirmative obligations.
Criminal Enforcement Against Individuals Must Be Justified As The Least Restrictive Alternative
Finally, statutes should authorize criminal enforcement against individuals who violate social distancing orders only if executive-branch officials establish that such enforcement is the least restrictive alternative available to achieve compliance with the orders. Officials should be required to exhaust other options—such as inspections and administrative penalties for businesses—before turning to the police to enforce public health orders using criminal sanctions.
Before stay-at-home and travel quarantine orders became widespread in the United States, many advocates argued that such personal confinement must always be justified as the least restrictive alternative—and that no enforcement, whatever the mechanism, should be permissible without such justification. However, in dozens of 2020 court opinions, most judges have found that stay-at-home orders and travel restrictions are not necessarily subject to strict judicial scrutiny. Their reasoning has relied in part on judges’ understanding that enforcement of these restrictions against individuals has been minimal, nonexistent, or even expressly disavowed by governors. But there have been enforcement actions in some jurisdictions, and there are indications they’ve been racially discriminatory.
Rather than relying exclusively on civil rights protections to guard against racially discriminatory enforcement or police violence, a better approach would be to adopt a statutory standard that treats criminal enforcement of social distancing and mask requirements against individuals on par with criminal enforcement of individually targeted interventions such as isolation of the infected and quarantine of the exposed. In other words, the “least restrictive alternative” test should apply when health officials pursue criminal enforcement against individuals, but not when orders are either hortatory (no enforcement, only education) or enforced through civil administrative penalties against licensed businesses and institutions. Legislatures need not take criminal enforcement completely off the table, but a statutory requirement for health officials to justify reliance on police as the least restrictive alternative available to achieve the restrictions’ purpose would encourage a scaled response that puts education and support before policing.
A new wave of public health emergency reform driven by lessons learned during the COVID-19 pandemic is on the horizon. In the decade after the jetliner and anthrax attacks of 2001, Congress and state legislatures across the country passed hundreds of bills to specify the public health powers available to health officials and provide statutory protections for individuals subjected to compulsory medical examinations, testing, quarantine, isolation, and vaccination. Social distancing and face-mask orders, which had not been widely used in the United States in more than a century, got little attention from reformers bent on “modernization.” Post-2001 reforms have been largely useless in 2020. The time has come for legislatures to weigh in again, to guide executive action for the coming months of this crisis and the next one.