Part III - Government Response and Reaction to COVID-19

Prologue

Marcella Nunez-Smith

I COVID-19 and Health Equity

In 2020, the United States experienced a 1.5-year decrease in life expectancy due primarily to the COVID-19 pandemic, the largest decline since World War II.¹ But the toll of the pandemic has not been equal. Rather, it has exposed how our standard pre-pandemic policies and practices were inadequate to meet the needs of many Americans – particularly for people of color and marginalized communities. For Black Americans, life expectancy dropped 2.9 years in the same period, and in the Latinx community, life expectancy fell by a full three years.² That Black and Latinx families are more likely to live in more crowded households or multigenerational homes, or hold essential jobs with higher risks of exposure, accounts for some of these disparities. Similarly, Asian/Asian Americans, Native Hawaiians, and Pacific Islanders, those living outside metropolitan areas, and individuals with certain disabilities have experienced staggeringly high rates of COVID-19 infection, hospitalization, and mortality.

COVID-19 is therefore much more than a public health emergency. It is also a convergence of crises. Hospital workforces have long failed to reflect the diversity of the communities they serve, which has contributed to worse health outcomes for people of color. As COVID-19 spread, rural hospitals shuttered. And when vaccines became available, the public and private sectors did not distribute doses equitably or accessibly. Prior to the pandemic, structurally marginalized communities already struggled to access nutritious food, stable and high-quality housing, childcare, health insurance, transportation, and reliable Internet. The pandemic exacerbated these challenges, making it all the more difficult to adhere to public health guidelines around social distancing and quarantine. The inequities that existed before the pandemic were exploited by COVID-19.

II Closing COVID-19 Equity Gaps: A View from the Front Lines

COVID-19 presented several distinct challenges over time, and I was privileged to advise both the state of Connecticut and the Biden-Harris Administration. In the early months of the pandemic, testing and tracing were key – as was getting accurate data on how COVID-19 was impacting different communities. After vaccines became available, work shifted to the profound challenges of ensuring equitable access to vaccines and gaining the trust of individuals reluctant to take them. The pressing issues of the day became partnering with community leaders and others to meet people where they were, leading conversations with respectful understanding and providing accurate information. We developed solutions based on unique collaborative initiatives. Our collective efforts helped close the equity gap in vaccination and offer lessons for the future.

Data drives health care and policy. However, getting accurate data on COVID-19 was an early challenge. In an August 2020 paper I co-authored with my Yale colleague Cary Gross and others, we were among the first to show that COVID-19 mortality data stratified by race and ethnicity was largely unavailable in state reporting. We also found that when data were available and adjusted for age, the disparities were severe. For example, we found that the risk of dying from COVID-19 was significantly higher for the Black population than for the White population in twenty-two states (along with New York City). An absence of reliable data makes it harder to develop government policies and appropriately target needed resources.

In the early months of the pandemic testing and tracing were core priorities. In Connecticut, where I served on Governor Ned Lamont’s Reopen Connecticut Advisory Committee as co-chair of the community subcommittee, protecting people in congregate settings – such as long-term care facilities, carceral settings, homeless shelters, and shared housing – as well as essential workers was a priority. Contact tracing, while effective, proved to have its own difficulties. It is not enough to develop and deploy a successful program; it must be successful in all communities. We focused on ensuring that people had the right economic and basic needs supports, including food, housing (in those cases where separating and isolating from others in a home was not possible), and childcare, to properly quarantine or isolate as necessary. Months later, once vaccines became available, ensuring equitable access and building trust through community partnership became the next major health equity goal across the country.

The Biden-Harris Administration aimed to provide equitable access across the continuum of COVID-19 life-saving resources. I was privileged to serve as co-chair of the Transition COVID-19 Advisory Board and later as Senior Advisor to the White House COVID-19 Response Team and Chair of the Presidential COVID-19 Health Equity Task Force in the Department of Health and Human Services. To reach the hardest-hit and highest-risk individuals, four direct federal vaccine allocation programs were launched in the first three weeks of the Administration. The four programs – Community Health Center Partnerships, the Retail Pharmacy Program, Community Vaccination Centers, and Mobile Vaccination Sites – complemented the work that states were doing and centered equity as a key priority, keeping considerations such as location and extended hours in mind. Further, metrics such as the Centers for Disease Control and Prevention’s social vulnerability index were used to help target these resources to communities. And the Administration always centralized the need to work closely with community and faith-based organizations to be most effective in connecting with their clients and members. Federal vaccination centers were barred from inquiring about citizenship and made sure that everyone knew vaccines were free to them. Pharmacy partners were engaged to ensure they were reaching hard-to-reach populations. Collaborations were key, including with community-based organizations, local public health departments, faith-based communities, and others. The Administration partnered with churches, schools, and even barber shops to reach people where they were. Throughout, the approach was guided by an understanding that both the message and the messenger matter. Messages must be tailored to their audience, and messengers must be trusted and trustworthy within a given community.

The Biden-Harris Administration put this understanding into practice through several necessary programs, in addition to the ones already mentioned. I had the opportunity to co-chair the National Public Education Campaign for COVID-19, which included the COVID-19 Community Corps. Starting with approximately 6,000 members before growing substantially, it comprised community leaders and others across the country who came together to get accurate information from Administration officials about vaccines and other pandemic matters on a regular basis. I was also honored to host a series of stakeholder roundtables, organized across multiple agencies and offices in the White House and the Department of Health and Human Services. These roundtables opened clear lines of communication about the pandemic, including about testing and vaccines, with a wide range of constituencies. They were intimate and off the record, and represented a space designed to elevate the wisdom of those with lived experience. Participants told Administration officials what they needed, while offering feedback on which Administration strategies were and were not effective, helping inform next steps. The Administration listened and acted on what they heard.

But bringing vaccines to communities and building confidence that the vaccines were safe and effective was just the beginning. The close relationships we built through dialogue helped us tackle a core problem: getting individuals who were willing to receive the vaccine but unable to access it a path to vaccination. The next issue was addressing structural barriers to vaccination. Through ongoing dialogue with our partners, we learned that people were facing a series of challenges – some did not have access to transportation or childcare, while others did not have paid time off from work. The Administration introduced policies and initiatives that addressed each of these problems – such as giving tax credits to businesses to make sure people got paid time off, supporting the provision of childcare, and encouraging rideshare companies to provide free rides. These solutions came from public–private collaborations. It was essential to ensure that accurate information was always being shared in a respectful way and to engage with community and local public health leaders. Taken together, this collaborative work paid off. By September 2021, we consistently saw that there were no longer gaps by race and ethnicity in adult vaccination rates.

Throughout the pandemic, what set effective interventions apart and really made a difference from prior moments in the health equity space was the presence of political will, stemming from the very top. The personal commitment of President Biden and Vice President Harris to both understand what was needed to close equity gaps in the pandemic and to act on that understanding was transformational.

III The Pandemic’s Legacy and Lessons for the Future

The pandemic has caused incalculable grief, stress, and other mental health challenges. More than 100,000 children have lost caregivers to the pandemic. Black, Brown, and LGBTQIA+ communities have reported skyrocketing rates of anxiety and depression. So, too, have older adults, for whom social isolation and loneliness increases the risk of cognitive dysfunction, heart disease, and mortality. COVID-19 also drove a significant spike in opioid overdoses. Even as mental health worsened in the country, stay-at-home orders and the widespread job-related loss of insurance made it harder for individuals to access behavioral health services. Meanwhile, people of color were more likely than their White counterparts to be essential workers, putting themselves and their families at increased risk.

The disproportionate burden of COVID-19 morbidity and mortality have resulted in a “grief gap” among communities of color and other marginalized populations. A broad lens is necessary to center equity across the groups the pandemic most affects: people living with disabilities, those who are involved with the justice system, cherished elders, rural neighbors, mixed-status families, LGBTQIA+ people, Black and Brown people, Indigenous people, Asian/Asian Americans, Native Hawaiians, Pacific Islander people, and those struggling on the margins of the economy.

The pandemic’s lesson is that while high-quality health care is essential, health equity goes beyond health care. It includes housing stability, food and nutrition security, and ensuring equitable access to technology. People need pathways to educational and economic opportunities. The prominence of COVID-19 in the public consciousness has made us aware of its uneven toll on communities of color and other marginalized groups, but there has never been a time in which these communities have not suffered disproportionate burdens of death and disease. To advance health equity, we must urgently address both the historical and contemporary underpinnings of these realities.

Systemic problems require systemic solutions. An effective pandemic response is reliant on people’s trust in science and is grounded in meaningful community engagement.

Misinformation, conflicted messaging, and the politicization of science have undermined the pillars of effective response. Therefore, we must also strive toward a new post-pandemic reality, a reality that puts science, reliable communication, community health, and racial/ethnic and social equity at the forefront.

In this rebuilding, we must also remember that although communities are experts in their own needs, we can no longer allow them to shoulder the burdens of establishing health equity alone. We must work toward sustained investment in community-led solutions. The pandemic gave us an opportunity to disrupt patterns of harm and improve inequitable systems and practices.

Looking forward, there are concrete steps that we can take to learn from the pandemic. The final report of the Presidential COVID-19 Health Equity Task Force, which I chaired, lays out fifty-five prioritized recommendations, with five toplines. First, we must invest in community-led solutions to address health equity. Second, we need a data ecosystem that promotes equity-driven decision-making. Third, we must increase accountability for health equity outcomes. Fourth, investing in a diverse and representative health care workforce and increasing equitable access to high-quality health care for all is essential. Finally, leading and coordinating implementation of the COVID-19 Health Equity Task Force’s recommendations should take place from a permanent health equity infrastructure in the White House.

We have a once-in-a-generation opportunity for transformational change. But we must acknowledge that advancing health equity will take multisectoral commitment, collaboration, and intention. The legacy of the pandemic is an invitation for us all to envision a new world, one in which the government, the private sector, community leaders, and philanthropists collaborate to achieve health justice.

Introduction

Abbe R. Gluck

In addition to being the great public health challenge of a generation, COVID-19 also will be remembered as one of the most significant governance challenges of our time. The pandemic exposed both the strengths and weaknesses of our fragmentated, federalist system of health care at the same time that it showcased the underappreciated capacity of the Affordable Care Act – the centerpiece of our national health care law – as a highly effective national safety net. The pandemic also revealed the dire costs of ignoring large parts of our public health infrastructure and failing to address the stark inequities in our health care system. And it took far too long for regulators to focus on the risks taken by the hundreds of thousands of essential and frontline workers who kept the nation going in the most uncertain of times. At the same time, the reactions of governments in response to the crisis propelled to the center of legal discourse a century-old landmark Supreme Court decision, Jacobson v. Massachusetts,¹ which embodies deference to science-based government decisions in the name of public health.

Jacobson came back to the fore to justify government action in the name of an unprecedented public health crisis at the same moment that some legal experts, including members of the Supreme Court, were mid-battle to shrink the administrative state and unwind decades of doctrine supporting administrative delegations. The chapters in Part III take up these varied and complex questions of the separation of powers, federalism, and regulation.

In Chapter 10, “Federalism, Leadership, and COVID-19: Evolving Lessons for the Public’s Health,” Nicole Huberfeld complicates earlier critiques of health care federalism, including her own. The failure of the national government under the Trump Administration to act quickly to trigger emergency authorities and use other available regulatory tools created a void that many state governments stepped in to fill. In that sense, 2020 evinced the strengths of a state–federal health care system, like ours, that is decentralized and built on redundancies and overlapping authorities. On the other hand, as the pandemic wore on, those same authorities served as obstacles in many states to the more direct national control that the Biden Administration tried to exert over the pandemic to achieve a more effective and equitable response. By 2021, some states and localities were fiercely resisting federal regulatory moves relating to protective measures such as mask-wearing and vaccination. Huberfeld argues that the US tradition of health policy heterogeneity across the states – not only with respect to pandemic-related safety measures but also in the system’s structure, such as in Medicaid and emergency authorities – ultimately produced more inequalities and a more uncoordinated response than a fully centralized national system would have done.

Chapter 11, “Coronavirus Reveals the Fiscal Determinants of Health,” by Matthew Lawrence, and Chapter 12, “Legislating a More Responsive Safety Net,” by Ariel Jurow Kleiman, Gabriel Scheffler, and Andrew Hammond, are somewhat less sanguine about federal action, with both chapters delving into fiscal preparedness and the safety net. Whereas Huberfeld aptly highlights the pandemic responses of Congress, including major relief bills and making vaccines cost-free, Lawrence criticizes Congress for its earlier inattention to public health. He also describes structural features of our national fiscal system, such as the requirement that legislation be “scored” for its impact on the budget, that discourage long-term investments in areas such as pandemic preparedness, and highlights the risks associated with a public health system that largely relies on annual appropriations rather than permanent funding.

Kleinman, Scheffler, and Hammond focus on a different aspect of the fiscal response: the variety of federal safety-net programs – in areas ranging from tax credits to food support, unemployment insurance, and health care – that did step up with significant support in 2020–21 but that the authors contend should have done more. Refuting the common description of the pandemic as the “great equalizer,” they highlight how the pandemic both exacerbated preexisting inequalities and argue for “automatic stabilizers” in critical safety-net programs to bring help more quickly, equitably, and sufficiently in the future.

In Chapter 13, “Eradicating Pandemic Health Inequities: Health Justice in Emergency Preparedness,” Ruqaiijah Yearby takes on another aspect of health justice: the failure of both the federal and state governments to focus on essential workers early or completely enough. Arguing through a lens of health (in)justice, Yearby argues that the governments should have designed better workplace protections and ensured other benefits, such as sick leave, for those who became infected. She proposes a new model with more robust community engagement, especially from essential workers themselves, to revise emergency preparedness plans before the next emergency.

These analyses of legislative and executive actions would not be complete without including the third branch of government: the courts. From the beginning of the pandemic, the courts were thrust into disputes on topics ranging from the lockdowns of gun shops, to limits on access to “elective” medical procedures – including abortion – to prohibitions on religious gatherings. At the center of all these cases was a debate about how deferential courts should be to government decisions made in the name of public health, a question until that point controlled by the century-old Supreme Court decision Jacobson. In Chapter 14, “The Jacobson Question: Individual Rights, Expertise, and Public Health Necessity,” Lindsey Wiley details how courts have struggled to reconcile Jacobson’s emphasis on the common good and deference to scientific regulatory judgment with the revolution in individual rights which occurred over the intervening century. She argues that courts were wrong to “suspend” ordinary judicial review in the name of the public health crisis. At the same time, she argues that Jacobson’s principles of public health necessity, proportionality, and deference to scientific judgment nevertheless remain relevant factors that courts must reintegrate into modern standards of review in order to balance individual rights against government actions like those taken during the pandemic.

The proper role of government has always been one of the dominant questions of health policy and indisputably remains a key question three years into the COVID-19 pandemic. Congress, the executive, the states, and the courts each have unique roles to play, and their varied choices have significant impacts on access to pandemic-related protections, redressing inequalities, and protecting the interests of both individuals and the community. The history continues to be written. As this book goes to press, Congress is fighting over whether to accord additional COVID-19 relief requested by President Biden; proposals abound to close the Medicaid gap that remains in ten states; and more than a year ago, the Supreme Court struck down the Occupational Safety and Health Administration’s emergency temporary standard for workplace protection. Like so many other areas covered in this book, the governance challenges highlighted by this set of chapters existed before the pandemic, but COVID-19 has shined a bright light on them which demands attention.

10 Federalism, Leadership, and COVID-19 Evolving Lessons for the Public’s Health

Nicole Huberfeld

I Introduction

The first year of the COVID-19 pandemic distinguished the United States as having the “worst outbreak in the world,” with more Americans dying than in World War II, the Korean War, and the Vietnam War combined.¹ By October 2021, COVID-19 deaths exceeded those caused by the former deadliest pandemic, the 1918 influenza virus.² Prominent commentators framed the turbulent early pandemic response as a failure of leadership, but this assessment does not tell the complete story.³ There are structural explanations for the complicated response of the United States too. In particular, a fundamental feature of the American approach to public health – the national governance structure known as federalism – is at least partially responsible for weaknesses in the country’s response to the pandemic.

Federalism divides power, responsibility, and capacity for health policies across multiple levels of government, most often between federal and state governments. Though federalism is the default choice for structuring health laws, often it is not a constitutionally required one.⁴ States are invited through federal laws to participate in national policies with the promise of money and regulatory guardrails but also policy flexibility. Proponents claim the vertical division of authority between governments fosters tailored policies for local populations, experimentation, and innovation. Yet divided authority also requires more coordination between government officials, which increases complexity in a public health emergency, requiring each leader to act in the right way at the right time and leaving more room for error when they do not.

In public health governance, authority is divided even further, between the federal government and more than 2,800 state, local, and tribal governments. Congress generally must draft emergency and disaster relief bills around state and local efforts; so, under existing laws, an emergency response always builds on the foundation of states’ policy choices and is likely to intensify states’ preexisting health and economic conditions, which in turn heightens the inequitable impact of an event such as a pandemic.

This is what has happened with the novel coronavirus. Decisions made by leaders at every level, but especially state officials, directly impacted infection and death rates and stymied relief efforts. Early in the pandemic, some state leaders filled the void when expected federal support was not supplied. But throughout the pandemic and especially as it evolved in 2021, state choices regarding containment measures and vaccination rollout decisions, as well as uptake and distribution of federal relief funds and challenges to federal vaccine rules, exacerbated the public health emergency and increased inequitable impacts. Populations already experiencing persistent health disparities, such as Black, Hispanic, Indigenous, and other people of color, as well as low-income and rural populations, suffered greater rates of infection and death.

In short, federalism increases the need for a coordinated response in emergency and disaster relief efforts. In the case of COVID-19, public health federalism quickly complicated dealing with the pandemic in the face of weak early federal leadership, long-underfunded state public health systems and resistance to health reform, and other emergency response policy choices that teed up the “worst outbreak.” To reduce unnecessary risk when the next emergency occurs, COVID-19’s legacy will need to include building a better governance structure to increase the resilience of individuals, populations, and public health systems.

II Federal Authority and Emergency Response

A public health emergency (PHE) prompts a suite of federal actions, especially if it involves a multi-state or nationwide event. Congress, the President, and multiple federal agencies all must exercise authority under a set of federal laws that address the need for swift reaction in an emergency or disaster. Congress typically addresses national emergencies through legislation designed to assist those harmed on a short-term basis, using “relief bills” to deliver economic and other aid. Congress first responded to the COVID-19 PHE with two relief bills enacted in March 2020: the Coronavirus Aid, Relief, and Economic Security Act (CARES Act);⁵ and the Family First Coronavirus Response Act (Families First Act).⁶ Both followed prior relief bill blueprints by providing loans to struggling businesses, increasing federal funding to cover Medicaid enrollment spikes, and enhancing unemployment insurance benefits. Recognizing Medicaid’s countercyclical nature and states’ immediate need for support given their balanced budget requirements, the bills offered states and private actors short-term monetary and deregulation measures.

The Families First Act, in Section 6008, provided an enhanced federal Medicaid match during the PHE, along with a requirement of “maintenance of effort” (MOE) so states could not decrease enrollment or eligibility while accepting enhanced federal funds. The Families First Act also allowed states to cover COVID-19 testing and related services for uninsured people through Medicaid with a 100 percent federal match. When the PHE ends, states lose emergency flexibilities, and the Families First Act enhanced match expires. With every state accepting the enhanced federal match, the two relief bills supported a 13.9 percent increase in Medicaid enrollment from the pandemic’s beginning in February 2020 through January 2021.⁷

A national emergency also triggers unique presidential power and the need for coordinated action among the President, federal agencies, and state and local officials. Both the President and the Secretary of the Department of Health and Human Services (HHS) must declare an emergency to invoke the full range of federal aid available during a PHE. Under the Stafford Act, the President facilitates disaster and emergency aid by issuing major disaster declarations to individual states, usually after a governor’s request, although President Trump also issued a national emergency declaration for COVID-19.⁸ A disaster declaration initiates help from agencies such as the Department of Homeland Security and its sub-agency, the Federal Emergency Management Agency,⁹ and triggers federal assistance that coordinates relief to states; provides technical and advisory support to state and local governments, including public health information and data; helps state and local officials with the distribution of food, medicine, and other supplies; and provides direct support to “save lives.”¹⁰ The President can provide additional federal assistance if the response is deemed “inadequate … to save lives, protect property and public health and safety, and lessen or avert the threat of a catastrophe.”¹¹ The President also has authority to declare a national emergency under the National Emergencies Act, which triggers other flexibilities, including actions under the Defense Production Act.¹² The national emergency and PHE are relatively short-term declarations and must be renewed if an emergency continues; disaster declarations are open-ended.

The HHS Secretary’s declaration of a PHE under the Public Health Service Act prompts regulatory, financial, and other relief that facilitates state emergency response.¹³ Using this suite of emergency powers, HHS and other federal agencies issue guidance for dealing with an emergency, deploy federal workers to assist state and local officials, and relax certain rules for Medicaid/Children’s Health Insurance Program, Medicare, and some Health Insurance Portability and Accountability Act privacy standards. This labyrinth of emergency authority laws builds federal/state collaboration into a national emergency response. Because state officials can operationalize federal funding and policy guidance on the ground, pragmatically, both executive and legislative emergency actions rely on states and localities to partner in addressing emergencies and disasters.

Though HHS Secretary Alex Azar declared a PHE on January 31, 2020, the President waited to declare a national emergency, with the first declaration effective March 1, 2020; as such, states such as Washington and California facing the pandemic in January and February were responding to a new disease outbreak without the full range of federal assistance.¹⁴ Despite the enhanced executive powers that become available upon declaring a national emergency, President Trump was widely reported to have chosen not to exercise such powers, with the exceptions of imposing international travel restrictions and supporting rapid vaccine development. The kinds of actions President Biden commenced upon entering office provide examples of the authority that went unexercised: mask-wearing requirements on federal property; evidence-based manufacturing enhancements and distribution of personal protective equipment (PPE); opening and promoting a special enrollment period on the federal health insurance exchange (“marketplace”) under the Affordable Care Act (ACA) to assist people who had lost jobs in obtaining insurance coverage; and clear vaccine distribution standards, to name a few.

Each presidential decision that reflected an anti-science stance, or that resulted in inaction, increased risks associated with COVID-19, a decidedly anti-public health approach to a PHE. Such choices included the President flouting state and local disease containment rules by ignoring mask-wearing orders during public events,¹⁵ and other noncompliant behavior,¹⁶ leading to his COVID-19 infection in October 2020.¹⁷ By law, the federal government is responsible for disseminating stockpiled supplies,¹⁸ yet President Trump told governors “we’re not a shipping clerk” and shifted to states the work of purchasing and distributing PPE.¹⁹ The White House interfered with information disseminated through key agencies, such as the Centers for Disease Control and Prevention (CDC), to downplay the magnitude of the outbreak.²⁰ As the pandemic progressed, White House communications were inconsistent and often undermined scientific evidence while simultaneously encouraging rebellion against state and local containment orders – while also pressuring states to curb the outbreak.²¹

This chaotic approach forced states to act alone and to compete with one another and the federal government for PPE. The devolution of executive responsibility tasked states with actions that centralized, coordinated action should have done and would have addressed better.²² This very situation was meant to be avoided by federal laws that centralize disaster resources, such as by creating a stockpile and enabling emergency authority under the Defense Production Act to ramp up production of necessary supplies.²³

The “Operation Warp Speed” vaccine development effort both contrasts with and evidences questionable leadership choices in the first year’s response. This effort supplied substantial federal funding for researchers and was deemed successful in generating vaccines worthy of Food and Drug Administration (FDA) emergency use approval by the end of 2020.²⁴ Vaccine distribution, on the other hand, suffered from many of the same flaws as other aspects of the pandemic response. No federal law currently mandates, tracks, or otherwise governs the distribution of adult vaccines in a consolidated fashion. The CDC largely relies on state and local health departments and health care providers to supply data; yet the Trump Administration stopped hospitals from reporting directly to the CDC.²⁵ The lack of centralized decision-making, combined with stymied data collection and skeletal CDC guidance to state and local public health officials for dissemination, meant that vaccine distribution started fitfully, with high variability from state to state, a situation which continued throughout 2021.²⁶ The incoming Biden Administration found inconsistent information regarding how many vaccine doses existed, and many states had not collected any data regarding their vaccination efforts.²⁷ Some states implemented vaccine guidelines so strict that doses went to waste (e.g., New York), while others were so lax that a sort of vaccine tourism popped up (e.g., Florida, Utah).

Generally, HHS made more predictable choices. When the coronavirus penetrated national borders, Secretary Azar declared a PHE effective January 27, 2020. The PHE activated the special authority of HHS to issue emergency grants, enter into contracts, access emergency funds, and increase regulatory flexibility. After the President declared a national emergency under the National Emergencies Act, the two declarations – national emergency and PHE – empowered the Secretary to issue emergency-related waivers under Section 1135 of the Social Security Act (SSA). Section 1135 permits modification of specific Medicaid requirements to ensure sufficient health care access during an emergency, for example, waiving licensure requirements for out-of-state providers. HHS made other emergency flexibilities available to states, including provisions to boost Medicaid capacity without legislative action, as the program is a crucial tool for emergency response. For example, states may make limited changes to Medicaid state plans to address access and coverage issues during a PHE and apply for waivers under SSA Section 1115 for temporary coronavirus-related demonstration projects.

HHS could have taken further actions to facilitate nationwide emergency response. If the President and Secretary Azar were not hostile to the ACA, natural choices would have been to encourage states to expand Medicaid eligibility and to open a special enrollment period on the federal exchange, or at least advertise the end-of-year open enrollment period more widely and extend it. Nevertheless, Secretary Azar renewed the PHE declaration throughout 2020, issuing his last declaration on January 7, 2021 (effective January 21, 2021), ensuring the PHE would continue through the first three months of the Biden Administration.

Congress enacted the American Rescue Plan Act of 2021 (ARPA) shortly after President Biden took office,²⁸ structuring it similarly to the first two relief bills but reflecting different priorities. The Biden Administration’s early executive orders made use of available statutory authority, recentered scientific evidence, elevated health equity, and committed to vigorously implementing the ACA, including extending the special enrollment period on the federal exchange and maximizing Medicaid expansion.²⁹ ARPA reflected these leadership choices, for example, providing an enhanced federal match for states to expand Medicaid eligibility, increasing Supplemental Nutrition Assistance Program (SNAP) funding, enhancing emergency rental assistance, and offering money to get elementary and secondary students back to school.

ARPA also built on the federalist structure found in most American social programs, making state and local choices important even with stronger federal leadership and partnership. For example, Florida did not apply for the bump in SNAP funding for schoolchildren’s 2021 summer break,³⁰ and did not submit a plan to the Department of Education to receive ARPA’s school funding before the summer ended.³¹ All states distributed some portion of ARPA emergency rental assistance funds, yet as of September 2021 states had distributed just 25 percent of the available money. Eighteen states distributed less than 10 percent of available funds, including Florida, Indiana, Iowa, Montana, and Vermont at 9 percent; Alabama and Georgia at 6 percent; and South Dakota and Wyoming at 2 percent.³² Further, half of states ended ARPA’s federally funded unemployment benefits early.³³ Even with federal money available, for administrative, political, or other reasons, some state officials did not perform their PHE implementation role.

III State Responses

Public health officials are largely local and state actors, so historically public health in everyday and emergency circumstances has been addressed through a combination of state and local funding and operationalization, combined with federal guidance and money. This structure assumes states both have and use public health expertise and have the capacity to implement it, which sometimes is true. But as already described, states have not always chosen to respond to federal PHE measures.³⁴

Nevertheless, the early vacuum of presidential leadership boosted state responsibility – and power – to respond to a disease outbreak posing a greater challenge than any public health event in recent history. A solely state-based response could not have adequately addressed this level of disaster, making national containment measures even more important. Facing little federal assistance and contradictory guidance, it is unsurprising that states initially responded to the pandemic in a highly irregular fashion. Governors found themselves thrust onto the pandemic frontline but also sometimes in a bind. While governors have authority to respond quickly to an emergency, in some states, such as Missouri, they refused to adopt containment measures suggested by federal public health experts, such as Dr. Anthony Fauci, the Director of the National Institute of Allergy and Infectious Diseases, leaving decisions and implementation to local officials.³⁵ In other states, such as Mississippi, governors limited local authority to issue containment rules, contradicting evidence that such measures were critical to slowing disease spread.³⁶ With the pandemic raging on, some state legislatures in the 2021 session limited gubernatorial emergency powers, which could impair response to future PHE.³⁷ This shows how state responsibility for the pandemic reflects a particularly risky brew of short- and long-term policy choices driven by leadership successes and failures.

On the short-term policy front, non-pharmaceutical interventions (NPIs) were the primary tool for controlling the spread of COVID-19 in 2020 and remained important into 2021, even as the FDA’s emergency use vaccine approvals began on December 11, 2020.³⁸ The NPIs recommended by the CDC included individual efforts such as mask-wearing and frequent sanitizing of hands and surfaces; public measures such as physical distance and restricted occupancy in public spaces; limitations on the size of gatherings; state and local stay-in-place orders (SIP); and business, church, and school closures. Some state officials swiftly implemented NPIs and kept them in place when infection rates spiked, as in California, while others such as Texas responded minimally, reopening quickly after SIPs and resisting further containment. South Dakota and neighboring states had a particularly bad outbreak in the summer of 2020 after resisting most NPIs and allowing a major motorcycle rally to occur.³⁹

Indeed, data show that states with the weakest containment measures, such as Florida, Mississippi, Texas, and North Dakota, had the worst outbreaks. Studies have documented containment policy differences, including the kinds of measures, stringency, and duration of implementation, showing that policy heterogeneity and weak containment measures correlated to severity of outbreaks in each state.⁴⁰ In addition, temporal dissimilarities contributed to severity of outbreaks. State and local NPIs came in waves, with many states opting for near total lockdown, including closing schools and businesses, in March and April of 2020. But some states reopened with almost no containment measures as summer arrived. State containment laxity facilitated a late summer spike in infections across the Midwest and South, followed by a second wave of NPIs. A third wave of NPIs occurred after Thanksgiving outbreaks again flooded hospitals with COVID-19 cases into the end of 2020.⁴¹

In 2021, when vaccination promised some normalcy, states relaxed and even limited NPIs, going so far as to ban vaccine verification and indoor mask-wearing requirements. These choices fueled a spike in Delta variant cases in the summer months and as the 2021–22 school year began, especially in Southern states, which have had the lowest vaccination rates. As of September 2021, contrary to CDC guidance, nine states forbade school mask-wearing requirements, or required that families be able to opt out for any reason, some of which courts blocked and school boards ignored (Arizona, Arkansas, Florida, Iowa, Oklahoma, South Carolina, Tennessee, Texas, Utah); nineteen states (and also the District of Columbia) required mask-wearing; and the others left decisions to local officials.⁴² Many of the same states also banned vaccine mandates and vaccine verification requirements. These same states experienced spikes in COVID-19 infections and deaths while the Delta variant became dominant and vaccine hesitancy took hold in the summer of 2021.⁴³ Arkansas’ governor expressed regret for signing the bill banning mask-wearing as infection and death rates spiked in August 2021.⁴⁴ Governors and state attorneys general from these and other states also challenged federal vaccine requirements for federal contractors,⁴⁵ and health care providers,⁴⁶ issued in response to these state officials’ reticence to promote or require vaccination, and federal courts have at least preliminarily agreed.⁴⁷ Such state choices limited federal vaccination efforts as the Omicron variant emerged in late 2021.

States’ variable outcomes also reflect long-term policy choices; two key pre-pandemic examples demonstrate this. First, nearly all public health spending occurs at the state and local level, and most states have reduced public health spending over the last decade and more, with steep budget cuts initiated during the 2008 Great Recession never rebounding.⁴⁸ One study found that states spend less than 3 percent of their annual budgets on public health agencies, translating to $100 per resident annually, but varying widely between states, from a high of $263 per person in Delaware to a low of $32 in Louisiana.⁴⁹ Another study estimates that public health spending accounts for less than two cents on every health dollar.⁵⁰ Florida has had one of the worst COVID-19 outbreaks and spends less than 2 percent of its budget on public health.⁵¹ Even Massachusetts, which increased public health spending over the last decade, had fewer staff relative to the number of residents.⁵² Reduced resources impacted state and local governments, increasing leadership turnover and decreasing the reach of short-staffed public health agencies, impacting, for example, routine childhood vaccinations and contact-tracing for infections such as HIV, and reducing capacity to respond to a PHE.

State funding cuts should have been balanced by increased federal funding allocated in the ACA, but Congress decreased funding for the Prevention and Public Health Fund shortly after enacting the ACA. Funding for the CDC was flat for the last decade, and states rely on partnering with the CDC for both funding and expertise, producing layers of underfunded public health in the federalist public health structure.⁵³ In short, public health was underfunded and understaffed when COVID-19 arrived, demanding a massive containment effort and an extensive vaccine rollout without staff or other resources adequate to the tasks.⁵⁴ Long-term fiscal neglect increased the risks associated with a pandemic.

Second, states that expanded Medicaid eligibility under the ACA have more federal funding available than non-expansion states, which has administrative, structural, systemic, and population health implications for states’ ability to address the pandemic. For example, expansion states drew down more federal money under the CARES Act: $1,755 per resident compared with $1,198 in non-expansion states.⁵⁵ Before the pandemic, expansion states experienced improvements in individual and public health as well as financial benefits for health care providers (especially hospitals) and state budgets.⁵⁶ Fourteen states did not expand Medicaid as of January 2020, and their populations have higher rates of chronic conditions and worse overall health;⁵⁷ their hospitals are less financially stable and have closed at higher rates;⁵⁸ and their budgets have not seen the stabilizing shift that comes with expansion funding.⁵⁹ All of these are factors contributing to higher COVID-19 infection and death rates.

ACA-resistant states made related long-term policy choices that deepened the crisis for people who lost jobs during the pandemic. For example, Georgia has not expanded Medicaid eligibility and relies on the federal exchange; however, it obtained a federal “Section 1332” waiver to disband the exchange, which HHS approved on November 1, 2020 as the severity of the pandemic was increasing.⁶⁰ In June 2021, the Biden Administration asked Georgia for data to support waiver continuation, and the waiver faces a court challenge.⁶¹ But Georgia’s approach made it harder for the pandemic’s newly jobless to find or renew coverage until the Biden Administration opened and advertised a special enrollment period and enlarged subsidies in ways that increased enrollment under ARPA. Many ACA-resistant states also limited access to social programs that address job loss, such as Temporary Assistance to Needy Families (cash assistance), SNAP/Special Supplemental Nutrition Program for Women, Infants, and Children (“food stamps”), and unemployment insurance, making the economic crisis accompanying the pandemic worse for many people.⁶² Many states, such as Florida, made the process of applying for unemployment insurance burdensome and the duration of benefits limited, while also not expanding Medicaid, creating a perfect storm of safety net failures when the emergency hit.⁶³

Yet every state used Medicaid’s temporary regulatory flexibilities to respond to the PHE, indicating that state leaders sometimes make policy choices that federal lawmakers anticipate. Also, every state claimed the Families First Act enhanced federal match, accepting the condition of meeting MOE requirements for the duration of the PHE: no limits or cuts to Medicaid eligibility, no increased premiums, no disenrollment of current or newly enrolled beneficiaries, and state-sponsored COVID-19 testing and treatment with no cost-sharing. MOE requirements prevented new barriers to coverage and enrollment, which had the effect of pausing waiver initiatives that hindered enrollment and destabilized eligibility, such as work requirements and frequent eligibility determinations. Some parts of the federal–state partnership worked, but many did not.

IV Lessons Learned?

The Biden Administration took office and began pulling all the levers that were at President Trump’s disposal, seemingly to make up for a year’s worth of delay. During that year, more than 25 million Americans were infected with and more than 429,000 died from COVID-19.⁶⁴ Assessing the long-term implications for legal doctrine will be an ongoing project, but some lessons were emerging even as the pandemic continued.

The federalism structure within federal statutes varies from law to law and even within laws.⁶⁵ In the field of health law, the federalism structure of Medicaid is different from the decentralized structures within the Public Health Service Act, and these laws are different from the structure of grant-in-aid programs that offer federal money to states for focused purposes, such as family planning under Title X, or limited funding for states to create exchanges. These statutes sometimes provide a federal backup when states resist federal policies, but many do not, leaving gaps when state leaders reject or neglect federal funding, as some did with COVID-19 relief funds, and jeopardizing PHE response.

These laws also reflect congressional assumptions about states’ desire to partner with the federal government that do not neatly align with the lived experience of the COVID-19 pandemic. State leaders’ persistent anti-science policies during COVID-19, especially as the pandemic surged in 2021 while vaccine and NPI resistance swelled, should be a warning for those implementing future PHEs. Key laws such as the Stafford Act and the National Emergencies Act rely heavily on state and local cooperation and implementation, and these are no longer a given reaction.

If public health, emergency, and disaster laws are reexamined, major questions should arise: Do these laws make accurate assumptions about states’ partnership and capacity to implement federal policy, and to what degree is centralized leadership and implementation necessary in addition to money and guidance? This inquiry is not the same as constitutional questions considered by the Supreme Court as to whether the federal government can “coerce” states with money; the issue is not what amount of money states need to implement national goals or whether states need that money, but rather who should and who will lead a policy effort.⁶⁶

Early state policy heterogeneity may have reflected improvisation and perhaps distrust borne of a lack of federal leadership in 2020. But state defiance of federal policy direction long predated the pandemic and should not be a surprise. States negotiate to get what they want from the federal government, observing how to bargain and lining up for concessions, as exemplified by the dynamic negotiations of Medicaid expansion waivers. Vigorous state negotiation may lead to greater variability and dynamism than Congress envisioned as a tradeoff for policy implementation, an important lesson for public health laws and for broader health reform efforts going forward. Though public health federalism structures provided early backup when state officials filled a federal leadership vacuum, the weaknesses of public health federalism were brought into sharp relief as the pandemic continued. Inadequately funding public health, under-preparation for emergencies and disasters, long-term choices that weakened the social safety net, non-scientific decisions about containment measures and vaccinations necessary to containing a pandemic – these state choices weakened the US public health apparatus.

V Conclusion

The legacy of COVID-19 is more than the cost of leadership failures; the pandemic highlighted the costs of the federalist structure, paid in high rates of infection and mortality. The pandemic exposed the room for error that divided governance allows through fragmenting not only responsibility and power but also capacity. Between prior health policy choices, fiscal neglect, and lack of effective coordination between federal and state leaders, it is no wonder that the United States had the world’s “worst outbreak.”

11 COVID-19 Reveals the Fiscal Determinants of Health

Matthew B. Lawrence

I Introduction

This chapter describes the ways in which the US fiscal system undermined the country’s preparation for and response to the COVID-19 pandemic. It emphasizes that health law scholarship can usefully treat the discovery of a lack of resources to address a particular problem in health or health care as a starting point, not an endpoint, in the identification of legal solutions to policy problems. The fiscal determinants of health – including scorekeeping, fragmentation, fiscal federalism, and forced fragility – contribute to underinvestment in health care and public health. By tracing particular examples of underinvestment back to their fiscal determinants, health law can identify and motivate necessary upstream reforms.

II Health Investment and the Peter/Paul Question

Health law and policy scholarship are replete with calls for additional investment in health or health care, usually based on careful, persuasive analysis of how such investment would be cost-justified on many dimensions.¹ The COVID-19 pandemic has been no exception. For example, the Network for Public Health Law issued a compilation of scholarly recommendations for steps that state, local, and federal governments might take to mitigate the harms of the pandemic; the unmistakable theme of the recommendations is “more funding.”² The pervasiveness of underinvestment raises the possibility of underlying, systemic causes. Why does US society fail to make worthwhile investments in health and health care?

Prominent explanations include public choice pathologies and racism.³ From the standpoint of these explanations, there is only so much that health law scholarship can do once scholars identify a particular example of underinvestment, other than to turn directly to political advocacy.

There is another explanation for the nation’s tendency to underinvest in health and health care, however: the often-overlooked fiscal system through which the country makes tradeoffs concerning the allocation of its scarce resources. Any suggestion that more funding is needed for a given project will be met by policymakers with the same question: What should I cut to get the money? Just as the “Chicago question” haunts private law (“if it’s such a good idea, why aren’t private entities already doing it?”), this Peter/Paul question haunts health law. Should policymakers rob Peter to pay Paul? If the country spends too much on treating sickness and not enough on preventing it, should health care entitlements be cut to fund public health investments? If not, where should the money come from: Should it be borrowed? Should taxes be raised – and if they are, will that stifle economic growth and, with it, the revenues available in the future?

The debate over additional pandemic funding in the 2022 Consolidated Appropriations Act illustrated the potency of the Peter/Paul question. In March of 2022, as the pandemic entered its third year, the Biden Administration sought $22.5 billion in additional funding to pay for continued response efforts, including testing, treatment, and vaccination.⁴ Congress initially included $15 billion in an omnibus appropriations package to meet this request, but Republicans insisted that any additional funds be offset by reductions elsewhere.⁵ A plan to draw such offsets from pandemic funds that had already been appropriated for states, but not yet spent, created controversy and opposition.⁶ As a result, the pandemic relief was pulled from the omnibus funding package, which was enacted in March 2022 without it, despite the Administration’s predictions of immediate adverse impacts for the nation’s pandemic response.⁷ At the time of writing, it is not clear whether or when Congress will ever provide the funding, but if it does, it will at least be delayed long enough to cause some of the predicted adverse impacts. As this sequence of events reveals, the question that proved determinative for inclusion of additional pandemic funding in the 2022 Consolidated Appropriations Act was not whether such funding was necessary. The determinative question was how additional funding would be acquired.

As this example makes clear, the Peter/Paul question tends to defuse calls for greater investment by highlighting the tradeoffs forced by such calls. But objections based on tradeoffs are only as good as our system for making them – for deciding where to direct scarce resources. That is not only a story about politics. It is also a story about the complicated system of revenues, expenditures, estimates, and budgets that society uses to make “fiscal” decisions.⁸

III The Fiscal Determinants of Health

The laws, rules, and practices that comprise the US fiscal system load the dice against public health, contributing to the country’s failure to make tradeoffs correctly – its failure to allocate resources appropriately for public health and health care. As Professor Westmoreland, whose scholarship has done much to uncover such distortions, put it, “the process is the policy.”⁹

The parts that follow elaborate upon how the nation makes tradeoffs about how to allocate scarce resources using a complex fiscal system that: (1) ignores long-term and secondary costs and benefits in estimating the effects of policy; (2) fragments choices into largely arbitrary but outcome-determinative fiscal categories; (3) leaves a flawed federal fiscal apparatus as the main source of essential investments; and (4) forces fragility on public goods. It is useful to think of these tendencies – scorekeeping distortions, fiscal fragmentation, fiscal federalism, and forced fragility – as the “fiscal determinants of health.” While the point can be overdone, it highlights the fact that these are distinct causes of unnecessary sickness and suffering embedded in a particular area of law, and that they therefore offer legal levers we might pull to improve outcomes.

The fiscal determinants of health are a promising avenue for legal reform because they are themselves partially the product of law, as described later. Health law scholarship can productively approach individual cases of scarcity it discovers not as an ending, but as a beginning, tracing them back to underlying fiscal law rules to motivate reform. Moreover, this work offers opportunities for engagement with other fields that depend heavily on social ordering through spending, such as education, childcare, and transportation, because fiscal determinants can act as obstacles to investment across these contexts.

The discussion here is not intended to be a comprehensive accounting of the interaction between fiscal determinants and the nation’s preparation for, or response to, the COVID-19 pandemic. Instead, it is intended to illustrate how fiscal rules and practices can undermine health policymaking, drawing on examples from this pandemic.

IV Scorekeeping

Scorekeeping is the first fiscal determinant that undermined the country’s management of the pandemic. Estimating the costs and benefits of potential policy choices is an essential step in deciding how to allocate scarce resources – without an estimate, there is no way either to assess which allocations are worthwhile or, where many potential allocations seem worthwhile, to make comparisons between them. In a series of articles, Professor Westmoreland has problematized the rules that Congress uses to estimate the costs and benefits of legislation in the budget process.¹⁰ The closest formal congressional equivalent to cost-benefit analysis of regulations, scorekeeping, is the process by which the Congressional Budget Office and the House and Senate Budget Committees estimate the effects of legislation and track its effects for purposes of various budget statutes and points of order.¹¹

The scores produced in this process can be incredibly influential. Professor Westmoreland has described how the goal of gaming the “score” distorted a range of health care policies.¹² Professors Westmoreland and William Sage have described how scoring considerations doomed President Clinton’s health reform plan and shaped that of President Obama.¹³ And Professor Sage has described the importance of scorekeeping considerations for the design of single-payer health reforms such as Medicare for All.¹⁴

Prophetically, Professor Westmoreland explained how these biases would leave the country unprepared for a viral pandemic years before COVID-19. He pointed out that “[t]he budget process discourages long-term investments” by measuring both costs and benefits within narrow windows of, at most, ten years.¹⁵ Moreover, estimates exclude so-called “secondary” (dynamic) effects of spending, such as the benefit of reduced Medicare hospital costs associated with measures that promote health or prevent chronic illness.¹⁶ This exclusion is the result of a facially neutral desire for certainty in predictions, but because both costs and market effects are easier to predict than secondary benefits, the facially neutral criterion of certainty in estimates depresses investments in public goods. Furthermore, in what Professor Westmoreland calls an example of “solipsism,” federal scorekeeping estimates “place no value on non-federal savings,”¹⁷ “resulting in an underappreciation of public value and public improvement.”¹⁸ Because the “widely dispersed benefits of preventing an epidemic would … remain unscored,”¹⁹ Professor Westmoreland predicted in 2007 that the federal government would fail to invest adequately in pandemic preparedness. Of course, that is precisely what happened.²⁰

Scorekeeping most directly undermines health investment when it prevents a bill from being passed or distorts its design. But even when a bill passes, scorekeeping’s solipsism and limited time horizons can undermine investment because of the way it interacts with deficit control statutes, such as the Statutory Pay-As-You-Go Act of 2010. When COVID-19 struck, Congress passed major spending legislation to address it, including the Coronavirus Aid, Relief, and Economic Security Act and the American Recovery Plan. It overcame negative scores in doing so, but the Senate refused a permanent exemption from the Pay-As-You-Go Act, instead deferring impacts. The result is that the Act will require a mandatory across-the-board sequestration cut in spending programs in late 2024 or early 2025, unless addressed by Congress through legislation.²¹ Even if Congress enacts a measure averting these cuts, their threat, and the votes they force, will increase the fragility of social programs.

Finally, the COVID-19 pandemic also illustrated a blind spot in the US fiscal system: the invisibility of unpaid care work. Some of the most critical work done in this country is the work of caring for those in positions of acute vulnerability, including children and elderly people.²² Yet, as Professor Noah Zatz points out, this work tends to be ignored in making policy because it is often unpaid and done by women.²³

The COVID-19 response illustrated this blind spot for unpaid care work. Nurses and doctors in hospitals and clinics are usually described as working on the “front lines” of the COVID-19 pandemic,²⁴ but this framing ignores the fact that most COVID-19 treatment took place in homes across the country and was provided unpaid by family members and loved ones.²⁵ While the goal of protecting “front-line” professional health care workers from exposure through the provision of personal protective equipment was a leading one throughout the pandemic, protecting home-front health workers was an afterthought.

This oversight proved costly. Household spread appears to have been a key fuel in the COVID-19 pandemic in the United States. While data is still emerging, one study showed that across the country, when symptomatic coronavirus patients were sent home after diagnosis, cohabitating family members quickly contracted the virus (usually within a week) more than 50 percent of the time.²⁶ This was much higher than results reported in other countries, where the rate was 30 percent or lower.²⁷ Even congressional efforts to address home care work focused only on workers pulled from the full-time workforce, rather than on those not in that workforce because of their commitment to care work. In the Coronavirus Aid, Relief, and Economic Security Act passed in March 2020, Congress attempted to partially reimburse some home care work, mandating that employers provide their full-time employees with up to six weeks of paid time off to care for dependent children. The measure excluded employees who needed to take time to care for loved ones other than dependent children, including parents and partners,²⁸ care workers who lacked qualifying full-time employment,²⁹ and for half of 2020, employees unable to work due to lockdown because of an unlawfully cramped Department of Labor interpretation (which was ultimately overturned).³⁰

V Fiscal Fragmentation

The fragmentation of health care costs and benefits into discrete fiscal categories also undermined the nation’s handling of the pandemic. Through a dense, interconnected web of property law, contract law, and fiscal law, responsibility for costs associated with sickness and health care in the United States is segmented into categories, such as “public” and “private” and “federal” and “state.”³¹ They are then further segmented within each category into subcategories – at the federal level, these include “mandatory” expenditures (such as Medicare and Medicaid) and “discretionary” expenditures (most public health funding),³² and then into programs (Medicare Part A or Medicaid), and so on. Similarly, state spending is separated by department and program; for example, Professor Elizabeth Weeks’s recent work has shown the many different components of states and localities that have been impacted financially by the opioid crisis – and the hard work that can be entailed in stitching these segregated categories together to reveal the true costs of the crisis.³³ And, of course, within the private sector, costs are fragmented between and among providers, payers, and patients.³⁴

The fragmentation of costs into disparate categories prevents needed investment in public goods by limiting reforms enacted to those that are cost-justified within a given narrow fiscal category or, put differently, by impeding investments that pose costs within one fiscal category but create benefits within another category.³⁵ At the same time, it facilitates costly and wasteful behaviors that increase overall costs – but create savings for the actor. Take Medicare’s readmission penalty. The penalty is an attempt to respond to a problematic phenomenon: fragmentation gives hospitals an economic incentive to discharge patients prematurely because they do not bear the cost of readmissions. In response, Medicare penalizes those hospitals whose patients have the highest readmission rates.³⁶ In economic terms, fragmentation leads to overproduction of negative externalities and underproduction of positive externalities, necessitating either the coordination required for Coasian bargaining of a Pigouvian subsidy or sanction.³⁷ In plain English, because decisionmakers may lack either the means or the stakes to take costly actions that reduce health care costs for which they are not responsible, even when those actions are worthwhile from the overall standpoint of the community, such actions will not be taken unless, by contract or government fiat, the benefits of the investment (or costs of foregone investment) are shared with them.

Scholars have noted that an individualized, medical approach to health care does not facilitate the measures needed to address a viral pandemic, such as surveillance testing, quarantine, and expeditious vaccination.³⁸ The issue is one of means as well as motivation: even if actors might want to further collective interests for the good of society, fiscal fragmentation means they often lack the means: the money to do it.

Through much of the pandemic, the lack of surveillance testing through employers and schools illustrated this problem. From a collective perspective, it makes sense for asymptomatic employees, teachers, and students to be tested before returning to work or school. Doing so can prevent exposure – and cases – for other employees and students, their families, and the broader community. Congress mandated that insurers cover COVID-19 testing, but insurers were able to refuse such testing for employers and schools on the grounds that surveillance testing for an individual was not a “medically necessary” intervention under the insurance contracts.³⁹ They did so.⁴⁰ Workplaces and schools, for their part, refused to pay for such testing themselves in the vast majority of cases. They cited the cost and administrative burden of testing as the primary barriers.⁴¹

Why would insurers not pay for surveillance testing for employees and schools themselves – indeed for everyone – as a means to curb the pandemic? Why did Congress even have to mandate that insurers cover tests sought by their beneficiaries? In the fragmented US health care system, any one insurer is financially responsible for the medical costs of only a small fraction of the full patient population. Insurers bear 100 percent of the costs of testing their beneficiaries and only a small fraction of the savings (in terms of health care costs) created by preventing viral spread, which are shared among all other insurers: Medicare, Medicaid, and so on.

VI Fiscal Federalism

Fiscal fragmentation can be overcome on issues such as surveillance testing and vaccines by collective action, as it was, to an incomplete extent, by the mandate that insurers cover medically necessary tests. The Coase theorem would predict that community members could bargain with each other to prompt measures in their collective self-interest.⁴² And while ordinarily the coordination entailed in such an effort might itself be a barrier to such collective effort,⁴³ for a universal threat such as COVID-19, government can be the vehicle for compromise and collective choices.

Fiscal federalism is an impediment to many collective responses to fiscal fragmentation.

As Professor David Super has pointed out, states and localities themselves are tightly limited as a source of costly, collective interventions. Not only are most constitutionally prohibited from deficit spending,⁴⁴ but during a recession (such as the one brought on by the pandemic), their revenues decrease (due to reduced spending and income), while their expenditures increase (due to heightened demand for social services, such as unemployment benefits).⁴⁵

That leaves the federal government as the primary source for high-cost collective measures. But, as the pandemic revealed, the risk that the federal government will fail to make appropriate interventions is significant. This is in part a question of leadership,⁴⁶ of course, but scorekeeping distortions (discussed earlier) also hamper federal investment, even where it is an essential backstop, as does forced fragility (discussed later).

Personal protective and medical equipment offer one example of the federal government’s limitations. The George W. Bush Administration’s influenza pandemic plan acknowledged that the federal government is best positioned to supply sufficient stock of these measures to respond quickly to a pandemic.⁴⁷ The federal government fell short in doing so, however, due to both a lack of preparation and a lack of leadership.⁴⁸ States then demonstrated the challenges of fiscal federalism in real time. They competed over scarce supplies, driving up prices, creating an appearance of chaos, and channeling supplies to the best-resourced and best-connected states, rather than those that most needed it.⁴⁹

VII Forced Fragility

A fourth aspect of the fiscal system that undermines health investment has to do not with who makes decisions (the domain of fragmentation and fiscal federalism) or how they make them (the domain of scorekeeping), but with how durable those decisions are once made – an intertemporal question. As used here, fragility refers to a program’s susceptibility to disruption or abandonment; it is the inverse of durability (sometimes known as entrenchment). Laws, rules, and norms force fragility even when substantive policy considerations counsel stability.

A critical choice in policymaking is how resistant to change to make a decision – how durable or fragile. Flexibility is often desirable, as it permits change with circumstances or new information (though Professor Super has pointed out that flexibility’s benefits are often overstated).⁵⁰ On the other hand, stability can often be desirable, too, to engender reliance and long-term investment.⁵¹ The appropriate balance between these considerations depends, of course, on the circumstances.

Several aspects of the US fiscal system interfere with decisions about whether to make a decision flexible or stable. The Constitution interferes with balancing by policymakers of the benefits of stability versus those of flexibility over a wide range of subjects. The Takings and Due Process Clauses insist on stability for resource commitments that trigger their protections, such as ownership of real property.⁵² Meanwhile the Appropriations Clause encourages fragility for resource commitments that take the form of government spending, encouraging Congress to leave those commitments dependent on annual appropriations, whether stability is warranted or not, in order to secure the “power of the purse” for itself and its committees.⁵³ Congressional rules carry forward this encouragement of temporary spending enactments.⁵⁴ Separation of powers norms endorsed by courts, commentators, and legislators further encourage Congress to fund spending programs annually to preserve power.⁵⁵ And federal statutes, including the debt ceiling and the Pay-As-You-Go-Act, threaten disruption to spending programs across-the-board, serving as a blanket source of instability in service of fiscal or separation of powers goals.

These laws, rules, and norms motivated by fiscal concerns and the separation of powers force fragility in federal public good investments – such as pandemic preparedness – even when the goals of such investments would be better served by stability. As a result, public health programs in the United States are less able to engender meaningful health investment because of constant threats to funding and recurrent disruptions.⁵⁶

Again, the nation’s preparation for coronavirus was undermined by forced fragility.

Senator Clinton recognized the problem posed by a lack of stable public health funding in the United States, proposing with Jeanne Lambrew a “wellness trust” as a permanent public health funding source.⁵⁷ These efforts culminated in the Prevention and Public Health Fund (PPHF) in the Patient Protection and Affordable Care Act (ACA) of 2010. Section 4002 of the ACA created the $18.75 billion PPHF in mandatory, permanent law, with the sole purpose of preparing for public health crises, including pandemics.⁵⁸

Although Congress and the President could make the PPHF permanent, insulating it from the vicissitudes of the annual appropriations process, they could not entrench it against change in future legislation. Spending on public health is a collective benefit, not “property” that anyone owns or a contract with performance owed to any particular business – so existing avenues of constitutional entrenchment were closed.⁵⁹ Moreover, as “mandatory” spending, the PPHF was in the same fiscal category as more constitutionally and politically entrenched spending programs, such as Medicare and Social Security, as Professors Westmoreland and Sage explain.⁶⁰ That meant that when Congress wanted to make subsequent costly changes in the “mandatory” category, the PPHF was an easy target as a source of funds. Congress repeatedly raided the fund, paying for new expenditures (the Medicare “doc fix”) and reduced revenues (the 2017 Tax Cuts and Jobs Act).⁶¹

The PPHF’s fragility thus significantly limited its usefulness. As the fund was raided, fiscally aware onlookers once again made prophetic predictions. “[W]ithout funding, the CDC won’t be able to protect us,” former CDC Director Tom Frieden observed in 2018. “We’re more likely to have to fight dangerous organisms here in the U.S.”⁶² Sadly, Director Frieden’s prognosis proved correct.

VIII Conclusion

Unlike other barriers to health investment, the fiscal determinants of health are largely a product of law – and so can be changed through legislative, regulatory, and litigation pathways. This effort is not hopeless. Recognizing the importance of fiscal determinants, Democrats in Congress in 2021 amended House procedures to reduce budgetary barriers to future legislation addressing COVID-19 “or public health consequences resulting from climate change.”⁶³ Representative Ocasio-Cortez described the rule change on Twitter as “a big deal – and not only on health care.” “They are structural changes in the House that level the playing field for a full SUITE of flagship legislation.”⁶⁴ This change is closely related to reforms pressed by Professor Westmoreland, discussed earlier.⁶⁵

Health law scholars and policymakers should not see scarcity as inevitable, or fiscal law as beyond health law. It is possible to identify and motivate needed fiscal system reforms by tracing particular instances of harm not only to the lack of investment that contributed to them, but also to the upstream fiscal determinants that contributed to that lack of investment.

12 Legislating a More Responsive Safety Net

Andrew Hammond , Ariel Jurow Kleiman , and Gabriel Scheffler

I Introduction

The COVID-19 pandemic underscored glaring weaknesses in the ability of American safety net programs to adequately respond to a national crisis. The pandemic and ensuing economic recession left millions of Americans struggling with joblessness, hunger, unstable housing, and insufficient access to health care. Government action was often either short-lived or long-delayed. Policymakers can learn from these mistakes. They must reform safety net policies to ensure that American families can survive future crises. This chapter charts a path for how they can do so.

First, we start by summarizing how Congress and federal agencies responded to the COVID-19 pandemic through various changes to safety net programs.¹ Second, we explore how existing safety net programs proved inadequate in the face of such a catastrophic and sustained crisis, and how Congress can remedy the systemic flaws underlying this inadequate response. We argue that Congress should enact mechanisms – often called “automatic stabilizers” – to ensure that safety net programs respond more immediately and effectively to future emergencies. Third, we defend strengthening automatic stabilizers on democratic grounds, arguing that doing so would increase transparency, limit delegation, and heighten responsiveness.

II Pandemic-Related Changes to Safety Net Programs

The COVID-19 pandemic was both epidemiological and economic in nature. It resulted in a breathtaking loss of life, leaving over a million Americans dead and many others suffering from debilitating and perplexing long-term symptoms. Meanwhile, the pandemic’s economic effects shattered many Americans’ financial security. Yet although the pandemic was initially hailed by some as “the great equalizer,” it was anything but. The pandemic both reflected and augmented preexisting social inequalities. Low-income people and people of color in particular were disproportionately harmed by its economic and health impacts.

To address these twin crises, the federal government enacted six major pieces of legislation between March 2020 and March 2021.² The most prominent and largest of these were the Families First Coronavirus Response (Families First) Act, the Coronavirus Aid, Relief, and Economic Security (CARES) Act, the Consolidated Appropriations Act, 2021, and the American Rescue Plan Act (ARPA). These laws altered the US safety net in various ways, including through bolstering cash transfers, food support, medical assistance, and job-related support.

This part briefly describes some of the most important changes, though our discussion is necessarily incomplete, given its brevity. We focus in particular on the federal response, due to the federal government’s important role in funding these programs and setting their requirements. However, state and local governments likewise play key roles in funding and administering safety net programs, and we highlight these roles as appropriate.³

A The Tax System

The CARES Act directed the Internal Revenue Service to send “recovery rebate” checks of $1,200 per adult, and $500 per child, to millions of American households.⁴ The Consolidated Appropriations Act and ARPA authorized additional payments of $600 and $1,400, respectively, to all adults and children.⁵ All payments phased out for incomes above $75,000 ($150,000 for married couples). The Consolidated Appropriations Act also temporarily modified the Earned Income Tax Credit (EITC) and Child Tax Credit to ensure that taxpayers would not be penalized for losing their jobs during the pandemic. The provision allowed taxpayers to use either 2019 or 2020 income to calculate the credit amount for 2020.⁶ This change ensured that taxpayers did not receive a smaller credit if they lost work due to the pandemic, since both tax credits phased in at low income levels in tax year 2020.

With ARPA, Congress temporarily expanded the Child Tax Credit by making it available to all families, regardless of employment status, and by increasing the credit amount from $2,000 to $3,000 per child (or $3,600 for children under six).⁷ Congress also temporarily increased the maximum EITC for childless workers, from about $540 to just over $1,500.⁸ These expansions expired at the start of 2022.

B Unemployment Insurance

Unemployment insurance (UI) is a joint federal–state program that states administer pursuant to federal guidelines. The CARES Act, Consolidated Appropriations Act, and ARPA temporarily expanded the amount, duration, and scope of UI benefits for those who lost work during the COVID-19 pandemic. With the CARES Act, Congress provided a $600 per week supplement to be paid on top of state UI benefits through July 31, 2020. It also extended the duration of benefits by funding additional weeks of support for workers who had exhausted all state benefits.⁹ The CARES Act also expanded UI eligibility by providing federal funding for states to pay benefits to workers who lost hours (even if they retained their jobs), as well as to “gig workers” and other non-employee workers who would otherwise be excluded from UI programs.¹⁰ Congress extended these various provisions with the Consolidated Appropriations Act and then ARPA, and further authorized a $300 weekly UI supplement through September 6, 2021.¹¹

C Food Assistance

In the Families First Act, Congress authorized the Department of Agriculture to allow states to create “Pandemic E B T [Electronic Benefit Transfer]” programs.¹² Pandemic EBT was created for families with children who were missing out on free or reduced-price meals as a result of school closures.¹³ Congress also allowed states to make “emergency allotments” for households receiving Supplemental Nutrition Assistance Program (SNAP) benefits; however, this provision excluded the poorest Americans, who were already receiving maximum benefits. In the Families First Act, Congress also made emergency appropriations to the Special Supplemental Nutrition Program for Women, Infants, and Children (WIC), the Emergency Food Assistance Program (one of the commodity food programs), and the nutrition assistance block grants for the three territories (Commonwealth of the Northern Mariana Islands, American Samoa, and Puerto Rico) that federal law excludes from SNAP.¹⁴ Finally, Congress addressed ongoing efforts by the Trump Administration to restrict access to food assistance for roughly 750,000 SNAP recipients.¹⁵ Even though a federal court had enjoined the Trump Administration’s regulation before it could go into effect, Congress suspended all SNAP work requirements until a month after the end of the COVID-19 emergency declaration.¹⁶

Subsequent COVID-19-related legislation made additional appropriations and built on the Families First Act’s food assistance provisions. In the CARES Act, Congress increased federal funding of SNAP assistance by over $16 billion.¹⁷ In the Consolidated Appropriations Act, the stimulus passed at the very end of the Trump Administration, Congress strengthened food assistance in the same manner that it did at the start of the Great Recession. It increased SNAP for all food stamp beneficiaries by 15 percentage points.¹⁸ Through ARPA, Congress extended that increase through September 2021.¹⁹ In passing ARPA, Congress also made additional appropriations for SNAP, WIC, and the nutrition block grants to the three territories.²⁰ ARPA contained provisions strengthening Pandemic EBT as well. Congress removed date limits to the program, explicitly allowed its operation in summer months, and expanded the program to cover children in schools with reduced hours, as well as children in SNAP households who were enrolled in child care facilities affected by pandemic closures and reduced hours.²¹

D Medical Assistance

The federal government took an array of legislative and administrative actions to address the cost of COVID-19-related medical care for patients, health care providers, and states. For instance, through the Families First Act and the CARES Act, Congress generally required most private health plans, Medicare, and Medicaid to cover testing for COVID-19 during the public health emergency.²² The CARES Act – together with the Paycheck Protection Program and Health Care Enhancement Act and the Consolidated Appropriations Act – provided $178 billion in funding for hospitals and other health care entities struggling with the cost of COVID-19-related care and the cancellation of elective procedures.²³ In addition, to help defray the costs of rising Medicaid enrollment and prevent states from cutting benefits (the Medicaid program is jointly funded by the federal government and the states), the Families First Act temporarily increased the Federal Medical Assistance Percentage (FMAP) for state and territorial Medicaid programs by 6.2 percentage points until the end of the public health emergency.²⁴ States were required to meet various conditions to be eligible for the increased matching funds, including not imposing more restrictive Medicaid eligibility standards or procedures, increasing premiums, and terminating beneficiaries from the program involuntarily.²⁵ ARPA also provided additional funding for COVID-19 public health activities, including vaccine distribution, contact tracing, and supporting the public health workforce.²⁶

ARPA included several reforms that built on the coverage expansions of the Affordable Care Act (ACA), and went beyond paying specifically for COVID-19-related medical care. For instance, ARPA provided that states that newly adopted the ACA’s Medicaid expansion for low-income adults would receive a 5 percentage point increase in their FMAP rate for two years, giving the holdout states that had not yet adopted the Medicaid expansion additional incentives to do so.²⁷ The law also temporarily created an option for states to extend postpartum coverage in Medicaid and the Children’s Health Insurance Program (CHIP) for twelve months.²⁸ In addition, ARPA temporarily offered enhanced premium tax credits for individuals who enrolled in private health insurance coverage through the ACA’s health insurance marketplaces, for the plan years 2021 and 2022. Previously, the tax credits had been generally available only for people with a modified adjusted gross income between 100 percent and 400 percent of the federal poverty level (FPL), and even people at the poverty level had to make some premium payments. ARPA both offered increased subsidies for individuals making between 100 percent and 400 percent of the FPL (who were already eligible for subsidized coverage) and expanded the subsidies so that people with incomes above 400 percent of the FPL were newly eligible for assistance.²⁹ In addition, ARPA included temporary subsidies to defray the cost of Consolidated Omnibus Budget Reconciliation Act premiums for people who had lost employer-sponsored insurance.³⁰

III Making the Safety Net More Responsive

A The Pandemic Revealed Structural Flaws in the Safety Net

Although it provided essential support, the federal government’s response to the COVID-19 pandemic was inadequate in numerous ways. For one, because Congress chose to provide benefits through existing safety net programs, the response excluded the same people these programs have excluded from the beginning. These include childless adults, immigrant families, and those with unstable ties to the labor market. Meanwhile, other stimulus bill provisions – and the ways that agencies implemented those provisions – directed huge sums of money to wealthy individuals and hospitals, and large businesses.³¹ In addition, the Families First Act’s FMAP increase provided less Medicaid funding than states needed and did not apply to enrollees covered through the ACA’s Medicaid expansion.³² The COVID-19-testing coverage provisions in the Families First Act and CARES Act also had loopholes which caused some Americans to remain on the hook for testing-related out-of-pocket costs.³³

Second, administrative complexity and technological problems common to safety net programs hampered the speed and efficiency of the pandemic response. As one example, many states’ UI systems simply were not equipped to handle a large influx of claims. Claimants faced network crashes and confusing messaging; many failed to access benefits as a result.³⁴ As another example, six months after the passage of the CARES Act, approximately nine million people still had not received their rebate checks because the Internal Revenue Service lacked their contact information.³⁵ Many of these overlooked individuals had incomes below the tax-filing threshold and thus were particularly vulnerable.

Third, while Congress acted quickly to pass the first round of stimulus relief, some relief came too late, while other relief ended too early. For instance, Congress did not increase SNAP benefits for all beneficiaries until ten months into the crisis.³⁶ The delay left millions of families in need. Meanwhile, although Congress initially expanded UI benefits, the expansion ended on July 31, 2020, just as the virus began surging around the country. Congress did not renew the expansion until December 2020 (and then again in March 2021). The legislative process throughout was rushed and chaotic, then partisan and unproductive. Both modes left little room for community participation, but plenty of room for well-heeled lobbyists. Congress ultimately delayed far too long to provide additional support after the first round of relief bills, each side blaming the impasse on the recalcitrance of the other. Meanwhile, poverty, hunger, and despair deepened.

The COVID-19 pandemic was unexpected and, in some ways, unprecedented. Although the federal government’s response was essential, it was also flawed. We can learn from this experience to improve crisis lawmaking in the future. The next section describes how.

B Principles to Improve Future Crisis Response

The flawed response of Congress to the pandemic points to several key principles that should inform how policymakers react to future crises. These principles apply to safety net reforms that seek to address not only national emergencies, but state and local emergencies as well.

When future crises occur, safety net program expansions and emergency responses should be:

• Immediate. Crises deepen as government delays. While Congress can act quickly, it may not always do so. And, as the COVID-19 response shows, it may not do so comprehensively. Linking temporary program expansions to economic indices or other automatic triggers is one possible way to ensure an immediate response.

• Inclusive. The US social safety net has long been and remains exclusionary, especially for Black Americans, immigrants and their families, Indigenous Americans, and Americans living in the territories. During normal times, political pressure and concern over scarce resources may overshadow calls for inclusivity. Yet improving the inclusivity of safety net programs during normal times will ensure that federal programs can reach everyone during hard times.

• Targeted. Programs must deliver support to the places and people that need it most. In the context of extreme weather events, for instance, federal programs must deliver support to a specific region only. State and local indices should therefore drive automatic responses.

• Sustained. Program changes triggered during a crisis must continue until the crisis is truly over. In some places, the economic fallout of a crisis might last several years, as was true after the Great Recession. Once again, automated, quantitative indices will provide a more accurate measure of continued need than a politicized decision-making process.

C Strengthening Program Responsiveness

Experts have advocated improved crisis lawmaking for some time. Many such proposals focus on automatic stabilizers – governmental mechanisms that do not require legislative approval and that increase spending or decrease taxes when the economy slows.³⁷ In other words, they automatically inject money into the economy during contractions. Of course, some safety net programs already are automatic stabilizers; for instance, SNAP, UI claims, and Medicaid enrollment tend to increase during recessions. In doing so, they help to protect individuals and families from the worst financial and health effects of economic downturns, as well as to mitigate the downturns themselves through stimulating aggregate economic demand.³⁸ Yet policymakers can improve these stabilizing effects. This section surveys various proposed reforms that aim to improve how well safety net programs respond to crises, focusing on automatic responses that obviate the need for approval from Congress.

1 Tax Credits

The EITC provides cash transfers to low-income families and childless workers, targeting households living near and just above the poverty line. It therefore operates as an automatic stabilizer by providing cash support to households when incomes drop. However, the work-incentive structure of the EITC mitigates this automatic stabilizer effect. Specifically, the program excludes non-working individuals; further, below a certain income level, benefits decrease as income decreases. This design feature means that a recession can cause many people to lose their benefits or receive a smaller benefit amount if they lose work entirely or lose enough hours to place them in the phase-in range. Imagine a server who works fewer hours when a recession causes her restaurant to cut shifts. This worker could face the double harm of reduced wages as well as a smaller EITC. To prevent this procyclical effect, tax policy experts have urged Congress to accelerate how quickly the benefit phases in at low income levels or to eliminate the phase-in entirely.³⁹

Outside of ARPA’s temporary tax credit expansions, childless workers receive only a small EITC compared to families with children. ARPA’s expansion expired after one year. Tax experts and policymakers have routinely called for permanently increasing the benefit provided to childless workers, or to all workers, which would strengthen the program’s ability to shore up the economy during recessions.⁴⁰

2 Unemployment Insurance

UI is already a vital automatic stabilizer. Even so, Congress and state policymakers can improve the programs’ ability to support struggling workers during economic downturns. To start, UI systems have historically excluded certain “nontraditional” workers from coverage – including part-time, temporary, and non-employee workers – leaving them without protection and undermining the systems’ ability to act as a safety net during recessions. This exclusion is becoming increasingly untenable considering that such jobs have dominated job-growth figures over the past decade.⁴¹ Since the Great Recession, experts have called on Congress and state legislators to expand UI coverage for self-employed workers and workers who lose hours while retaining their jobs.⁴² Although Congress did so in response to the pandemic, the changes were only temporary.

Additionally, states’ budgets are often overburdened during economic downturns, since demand for public assistance tends to increase just as tax revenue decreases.⁴³ Instead of relying on Congress to expand UI funding during each economic downturn, experts have urged Congress to legislate automatic increases.⁴⁴ For instance, federal UI funding could increase automatically when a state’s unemployment rate increases rapidly or exceeds a threshold level.⁴⁵

3 SNAP

SNAP has a well-earned reputation in Washington, DC for its countercyclical track record. Policymakers know the program can expand quickly during recessions and crises.⁴⁶ That is in part because states contribute to the administrative costs of the program, but the federal government pays 100 percent of the substantive benefits.⁴⁷ But while SNAP excels at enrolling people who are newly eligible because of unemployment, extreme weather events, or pandemics, it could be made stronger for both new and existing recipients in times of acute need.⁴⁸ Experts have called on Congress to amend the Food and Nutrition Act so that SNAP benefits increase automatically when certain economic data suggest a national, regional, state-wide, or even intra-state surge in need.⁴⁹ Such a change would have prevented Congress’s nine-month delay in enacting such an increase during the pandemic. In fact, the federal statutes governing SNAP already let economic data drive eligibility for a certain segment of recipients.⁵⁰ The Food & Nutrition Service allows states to waive statutory work requirements for certain childless adults when the Bureau of Labor Statistics reports specified unemployment levels for a state or intra-state region.⁵¹ Congress could simply automate these increases in benefit amounts and expansions in eligibility.

4 Medicaid

Medicaid is another essential automatic stabilizer. Enrollment in Medicaid increased significantly during the COVID-19 pandemic and likely helped to offset the effects of people losing employer-sponsored insurance.⁵²

Yet this stabilizing function should be strengthened. Because states typically must balance their budgets annually, they face significant pressure to cut spending on Medicaid during economic downturns – by making eligibility requirements more stringent, reducing the scope of covered benefits, or reducing the amount that they pay providers.⁵³ These cuts in turn not only limit health benefits for low-income Americans at a time when they are especially vulnerable, but also have deleterious economic consequences.⁵⁴

During recent economic downturns, including the COVID-19 recession, Congress has legislated one-off temporary increases to the Medicaid matching rates to prevent such negative outcomes.⁵⁵ Yet these increases have sometimes been too small or come too late.⁵⁶ To strengthen Medicaid’s role as a stabilizer, economists Matthew Fiedler, Jason Furman, and Wilson Powell III have proposed that Congress automatically increase the federal share of spending for Medicaid and the Children’s Health Insurance Program once a state’s unemployment rate exceeds a threshold level.⁵⁷ The Government Accountability Office has likewise proposed automatically increasing Medicaid matching rates during national economic downturns.⁵⁸ Either of these approaches would help to mitigate the damaging consequences of future economic downturns, and would help to ensure that the Medicaid program can provide support when Americans need it most.

IV Strengthening Democratic Norms

Until now, most of the arguments in favor of strengthening automatic stabilizers have been made on welfare grounds: that doing so would bolster important protections for vulnerable groups and cushion the impact of economic downturns.⁵⁹ Yet, perhaps counterintuitively, we believe that augmenting automatic stabilizers would also help to strengthen democratic norms. Before the COVID-19 pandemic ravaged the United States, scholars had repeatedly criticized the decreasing capacity and increasing dysfunctionality of Congress.⁶⁰ In particular, researchers identified how Congress’s increasing incapacity to legislate raises concerns about its democratic legitimacy. Relatedly, some scholars have critiqued Congress’s reliance on infrequent and unorthodox lawmaking as well as its broad delegations to agencies on the basis that they make the US national legislature less accountable. Here, we offer some preliminary thoughts on the extent to which legislating automatic stabilizers can address the prevailing ills that afflict Congress.

This section tentatively makes a case for automatic stabilizers because of their democracy-protecting potential. In particular, we defend automatic stabilizers on three grounds: transparency, delegation, and responsiveness.⁶¹

A Transparency

The status quo of legislating one-off emergency packages to temporarily bolster safety net programs raises concerns about transparency. Because Congress is under intense time pressure to pass such packages, they tend to do so in ways that bypass traditional procedures – such as committee deliberation and report-writing – that promote transparency.⁶² The speed, opacity, and complexity associated with such emergency legislation serve in turn to advantage well-resourced business interests, while making it more difficult for public interest groups and individual members of the public to participate in the legislative process.⁶³

By contrast, if Congress were to enact, in a non-emergency context, a set of prospective rules governing how safety net programs would automatically adjust during future economic downturns, there would be ample time to follow the standard legislative procedures that enhance transparency and accountability. Public interest groups and members of the public would be better able to understand and participate in the legislative process, and to hold members of Congress accountable for their decisions. It seems plausible, therefore, that enacting automatic stabilizers would actually strengthen – rather than weaken – democratic values.

B Delegation

One concern about strengthening automatic stabilizers is that doing so would weaken the democratic legitimacy of statutes by allowing legislators to escape taking responsibility for decisions about the safety net.⁶⁴ This concern is related to a more general critique that has been levied against broad delegations to administrative agencies: that such delegations enable members of Congress to avoid taking public positions on consequential matters of public policy, and thereby render it more difficult for voters to hold them accountable.⁶⁵ Leaving aside the question of whether this more general line of criticism is persuasive, we believe that automatic stabilizers should actually appeal to those who are concerned about excessive delegation.⁶⁶ When Congress enacts automatic stabilizers, it dictates how agencies must act and how programs must respond to future crises. This strict control contrasts with a status quo that, in some cases, gives broad authority to federal agencies to choose the best policy response during a crisis. In short, by choosing an automatic stabilizer, Congress decides ahead of time how safety net programs will respond to the next crisis, and in so doing serves to limit the scope of delegations to agencies.

C Responsiveness

Currently, the American safety net is insufficiently responsive to the needs of the American public. The Electoral College, state representation in the Senate, and gerrymandered districts in the House skew incentives and lead politicians to focus disproportionately on helping certain swing states or vulnerable members, while ignoring others. Politicized assignment to congressional committees, seniority, alliances with formal caucuses and informal voting blocs, and other legislature features confer unequal power on certain states’ federal representatives.⁶⁷ Intransigent state policymakers hold up needed assistance or refuse federal support, undermining the federal government’s intention to shore up the national economy.⁶⁸ Various features of the legislative process, particularly the filibuster, contribute to legislative gridlock and prevent Congress from addressing major social problems on which there is a broad public consensus.

The poor and middle class have less influence on policy outcomes than the rich.⁶⁹ Strengthening automatic stabilizers would enable a more equitable, less politicized distribution of benefits to the people and places that need it most and make the safety net more responsive to the needs and circumstances of the electorate as a whole.

V Conclusion

The COVID-19 pandemic revealed significant weaknesses in the US social safety net. Despite the scale of the federal government’s response, Congress failed to provide adequate assistance to many Americans as it channeled benefits through existing safety net programs. Moreover, although Congress acted relatively quickly by its standards, relief came too late – and ended too early – for many Americans.

This experience underscores the need to legislate a more responsive safety net. During a major crisis, relief should be immediate, inclusive, targeted, and sustained. To achieve these goals, policymakers should strengthen the stabilizing effects of existing safety net programs such as the EITC, UI, SNAP, and Medicaid. Doing so would serve to protect vulnerable populations during economic downturns and to mitigate the downturns themselves. In addition, we defend strengthening automatic stabilizers on democratic grounds, arguing that doing so would increase transparency, limit delegation, and heighten responsiveness.

The COVID-19 pandemic will not be the last major crisis that necessitates temporarily strengthening the safety net. Rather than waiting until the next crisis, Congress should act now to make the safety net more secure and responsive for the future.

13 Eradicating Pandemic Health Inequities Health Justice in Emergency Preparedness

Ruqaiijah Yearby

I Introduction

During the 2009 H1N1 flu (Swine flu) pandemic, the Centers for Disease Control and Prevention (CDC) recommended that those exhibiting symptoms practice social distancing and stay at home rather than go to work for seven to ten days.¹ A national survey showed that many low-wage and racial and ethnic minority workers were unable to practice social distancing or stay at home during the H1N1 pandemic because they could not work from home, take time off work, or lacked paid sick leave.² These workers were also not provided with protections against the spread of airborne diseases in the workplace. As a result, they had an increased risk of exposure to H1N1 within the workplace, which was associated with their higher rates of infections, hospitalizations, and deaths.³ In response to racial and ethnic inequities “in illness, hospitalization and death compared to whites” during the H1N1 pandemic and other emergency situations, such as Hurricane Katrina, the Department of Health and Human Services’ (HHS) Office of Minority Health published Guidance for Integrating Culturally Diverse Communities into Planning for and Responding to Emergencies: A Toolkit,⁴ and a 2012 report regarding health equity and pandemics.⁵ The toolkit and the report were outgrowths of a National Consensus Panel made up of national, state, and local experts from public health; emergency management, response, and relief; and racial and ethnic communities.⁶ Building on existing resources and evidence-based research, the toolkit and report acknowledged that there were social factors outside an individual’s control, such as lack of paid sick leave, that led to pandemic health inequities. They also recommended establishing sustainable community partnerships to, among other things, measure and evaluate emergency plans and actions before, during, and after the emergency was over.

In 2010, the Department of Labor’s Occupational Safety and Health Administration (OSHA) began working on an airborne infectious disease rule that would require employers to conduct a worksite hazard assessment to determine how an airborne infectious disease can spread within the worksite or to adopt specific measures to limit the spread of the airborne infectious disease there.⁷ Even though the recommendations of HHS and OSHA’s proposed rule were created specifically to improve the government’s emergency preparedness response and address pandemic health inequities, many of the federal and state government COVID-19 emergency preparedness laws and plans have not incorporated these recommendations or protections. In particular, many of the federal, state, and local laws do not provide paid sick leave for all essential workers or adopt protections from OSHA’s proposed airborne infectious disease rule, which has led to pandemic health inequities in COVID-19 infections and deaths for essential workers.⁸ In 2021, the Biden Administration,⁹ and many employers, began to implement mandatory vaccine policies that required workers to get vaccinated or submit to testing.¹⁰ However, it is unclear how vaccine mandates would work or be applied to industries that have a high number of undocumented immigrants, who have limited access to vaccines.¹¹ Furthermore, the Supreme Court has prevented the Biden Administration’s vaccine mandate for non-health care workers from coming into effect,¹² and many employers have begun to roll back their requirements.¹³ Thus, there is still a need for paid sick leave and workplace protections for essential workers, which is the focus of this chapter.

More than 55 million Americans were labeled “essential workers” during the COVID-19 pandemic.¹⁴ Health care workers have provided critical medical care to patients, while housekeeping and cleaning workers kept these institutions clean.¹⁵ Grocery store workers, farm workers, and meat processing workers have continued to feed the country. Warehouse, postal, transport, and airline workers have ensured the public receives their essential goods, while utility and communications workers have sustained access to the fundamental human needs of water, electricity, and the Internet.

Nationwide, these jobs have been associated with increased percentages of COVID-19 deaths.¹⁶ Specifically, research showed that working in the health care, transportation, food preparation, cleaning, and service industries was strongly associated with a high risk of contracting COVID-19 and dying. Low-wage and racial and ethnic minority workers are disproportionately employed in these jobs.¹⁷ In fact, “Blacks disproportionately occupied the top nine occupations that placed them at high risk for contracting COVID-19 and potentially infecting their households.”¹⁸

Therefore, to put an end to health inequities in COVID-19 infections and deaths, the government should adopt the health justice framework, which provides a community-led approach for transforming the government’s emergency preparedness response. Based in part on principles derived from the reproductive justice, environmental justice, food justice, and civil rights movements, the health justice framework offers three principles to improve the government’s emergency preparedness response: (1) truth and reconciliation; (2) community engagement and empowerment; and (3) structural remediation and financial support.¹⁹ By adopting these principles, the government can not only acknowledge and fix the harm caused, but also improve its emergency preparedness response by providing essential workers with the power to develop and implement more effective laws and plans.

II Emergency Preparedness and the COVID-19 Pandemic

In response to the COVID-19 pandemic, forty states and the District of Columbia issued stay-at-home or lockdown orders, which included social distancing measures.²⁰ Generally, these orders have relied on individuals to change their behavior to stop the spread of COVID-19.²¹ However, some individuals, such as essential workers, were not always protected by social distancing measures. For example, the St. Louis City stay-at-home order included social distancing mandates and other measures to stop the community spread of COVID-19.²² These requirements for social distancing were not applied to essential businesses, and thus did not protect essential workers. Furthermore, neither the federal nor state emergency preparedness laws and plans provided all essential workers with paid sick leave or workplace protections from exposure to COVID-19.²³ As a result, many essential workers were left unprotected against workplace COVID-19 infections, leading to pandemic health inequities.

A Paid Sick Leave

During the COVID-19 pandemic, most essential workers were employed in the health care (30 percent) and in the food and agricultural (21 percent) industries, which experienced high rates of COVID-19 infections and deaths.²⁴ These cases and deaths have disproportionately harmed racial and ethnic minority essential workers. As of June 25, 2021, more than 513,773 health care personnel have tested positive for COVID-19, and 1,683 have died, a figure which is not broken down by occupation or race.²⁵ Yet a National Nursing Union report shows that nurses of Filipino descent comprise 31.5 percent of nurse deaths from COVID-19, but only account for 4 percent of the nursing population.²⁶ COVID-19 has not only harmed essential workers, but also their families and the communities in which they live.

In 2020, data associated Latino and Black children’s higher risk of COVID-19-related hospitalizations with social factors, such as the employment conditions of their parents (e.g., serving as an essential worker).²⁷ Moreover, in Boston, data showed that the highest number of COVID-19 cases are concentrated in communities with a “very high proportion of both COVID-19-essential workers and residents of color.”²⁸ These pandemic health inequities are in part due to essential workers’ lack of paid sick leave, which increases essential workers’ exposure to infectious diseases, such as COVID-19, because they must go to work sick, often infecting other workers as a consequence.²⁹

Research shows that without paid sick leave, working people are one and a half times more likely to go to work with a contagious disease and three times more likely to go without medical care compared to those with paid sick days.³⁰ Many essential workers, including some nursing home workers, home health workers, and food and agriculture workers, do not have paid sick leave.³¹ Furthermore, compared to White workers, Black workers are less likely to have paid sick leave,³² even after federal and state action to address COVID-19.

The federal government enacted four major COVID-19 laws providing economic relief: the Families First Coronavirus Response Act; the Coronavirus Aid, Relief, and Economic Security Act; the Consolidated Appropriations Act; and the American Rescue Plan Act.³³ These laws provided paid sick leave for workers employed at businesses with fewer than 500 workers.³⁴ Many essential businesses employ more than 500 workers, so their workers are not covered. The laws also did not cover home health workers and undocumented immigrants, even though they were often designated as essential workers. Some states, such as California and New York, did enact paid sick leave laws, yet many essential workers were still left without paid sick leave.³⁵ The far-reaching impact of pandemic health inequities due to the lack of paid sick leave is best shown by reference to the food and agriculture industry.

Most meat and processing workers do not have paid sick leave and the economic relief bills did not apply to them because meat and poultry processing plants tend to employ more than 500 workers. As of August 31, 2021, 91,642 food and agriculture workers were infected with COVID-19, and at least 465 workers had died.³⁶ Racial and ethnic minority workers represent most of these cases and deaths. The CDC noted in May 2020 that there were 16,233 confirmed cases of COVID-19 infections for meat and poultry processing workers and 86 COVD-19-related deaths in 239 plants.³⁷ Of the 9,919 (61 percent) cases with racial and ethnic data, 56 percent of COVID-19 cases occurred in Latinos, 19 percent in non-Latino Blacks, 13 percent in non-Latino Whites, and 12 percent in Asians.³⁸ These infections have also impacted the communities in which these workers live and, more broadly, the entire nation.

Research shows that having a meat or poultry processing plant in the county is associated with a 51–75 percent increase in COVID-19 cases and a 37–50 percent increase in deaths of all people in the county, not just those who worked at the plant.³⁹ The same research shows that between 3 and 4 percent of all COVID-19 deaths and 6–8 percent of all COVID-19 cases in the United States are tied to meat and poultry processing plants.⁴⁰ Infections tied to the lack of paid sick leave are further exacerbated by the government’s failure to enforce worker health and safety protections.

B Lack of Worker Health and Safety Protections

Neither the federal government nor the states have adequately protected essential workers against workplace exposure to COVID-19. OSHA, and the twenty-one states with OSHA-approved plans,⁴¹ have the power to require employers to provide employees with personal protective equipment, such as masks, and develop a respiratory protection standard to prevent occupational disease.⁴² Moreover, employers have a “general duty” to provide employees with a place of employment free from recognized hazards that are causing or likely to cause death or serious harm.⁴³

However, the respiratory standard and the “general duty” protections do not apply to some nursing home, home health, and agricultural workers because they are classified as independent contractors. Even if the protections apply, they are insufficient to address COVID-19 because neither the respiratory standard nor the General Duty Clause requires employers to conduct a worksite hazard assessment to determine how an airborne infectious disease can spread within the worksite or adopt specific measures to limit the spread of the airborne infectious disease there. OSHA noted the inadequacies of these laws to address airborne infectious diseases when discussing its 2010 proposed airborne infectious disease rule.⁴⁴

Instead of adopting the protections in the proposed rule, OSHA, in partnership with the CDC, has issued numerous advisory worker health and safety guidance. All the guidance discusses very similar issues, such as the potential for workplace exposure and the need to create a COVID-19 assessment and control plan. Nevertheless, the guidance does not require the adoption of specific measures to limit the spread of COVID-19 in the workplace. Additionally, neither the guidance nor OSHA require employers to report infected workers or test all workers exposed to COVID-19.

In 2014, OSHA adopted a rule requiring the recording and reporting of occupational illness and injury.⁴⁵ Under the rule, all employers with more than ten employees, who are covered under the Occupation Safety and Health Act, must report work-related fatalities to OSHA within eight hours of the event. The employers also must report all work-related, in-patient hospitalizations to OSHA within twenty-four hours of the event.⁴⁶ However, during the COVID-19 pandemic, OSHA requires employers to report worker hospitalizations for COVID-19 only if the hospitalization occurs within 24 hours of their workplace exposure to the virus.⁴⁷ Furthermore, employers need to report worker infections and hospitalizations only if the worker can show that the infection occurred in the workplace. Limiting reporting of worker infections based on when the hospitalization occurred or where the exposure occurred keeps the government from being able to prevent, mitigate, and contain the spread of COVID-19.

Identifying all workers infected with COVID-19 and mandating the testing of all exposed workers is necessary to track infections and protect workers from being exposed to COVID-19 in the workplace. The pandemic health inequities caused by these gaps in enforcement and reporting are best illustrated by the high rates of COVID-19 infections and deaths of essential workers. In June 2020, the owner of a pistachio farm in Wasco failed to report worker COVID-19 cases to the government or test exposed workers. Consequently, workers at the farm, many of whom were racial and ethnic minorities, did not know other workers had tested positive for COVID-19 until they learned it from the media. By that time, 150 workers and 65 family members had tested positive.⁴⁸ After the announcement, the farm started to make masks available free of cost, whereas before they were charging workers $8 per mask.⁴⁹

Moreover, although workers across the United States have filed over 5,000 complaints regarding workplace hazards that increase the risk of COVID-19 infection, OSHA has only issued one citation related to the pandemic and closed many of these complaints without in-person inspections.⁵⁰ Instead, OSHA has relied on employers to make a “good faith” effort to comply with its advisory worker health and safety guidance rather than issue mandatory requirements or conduct in-person inspections. Under the Biden Administration, OSHA has issued an emergency temporary standard to provide mandatory workplace COVID-19 protections for health care workers,⁵¹ but this leaves many essential workers unprotected.

For example, a COVID-19 outbreak at the Farmer John pork processing plant in California began in 2020 and continued for nearly a year, “with more than 300 cases reported in January (2021) alone.”⁵² Moreover, an April 2021 report showed that essential workers in California accounted for 87 percent of the COVID-19 deaths in adults aged 18 to 65.⁵³ Warehouse workers “had the highest statewide increase in pandemic related deaths (57 percent),” compared to a 25 percent increase for those not working.⁵⁴ Other California industries with high rates of worker deaths include agriculture (47 percent), food processing (43 percent), and nursing homes (39 percent).⁵⁵

III Health Equity: Social Determinants of Health and Health Justice

To eradicate pandemic health inequities, the federal and state governments should revise their emergency preparedness laws and plans, using the three principles of the health justice framework: (1) truth and reconciliation;⁵⁶ (2) community engagement and empowerment; and (3) structural remediation and financial support.⁵⁷

A Recommendations

First, the process of developing and implementing new emergency preparedness laws and plans must include a truth and reconciliation process that provides an opportunity for communities to heal and build trusting and respectful relationships with the government, which is necessary for meaningful community engagement. As the W. K. Kellogg Foundation notes, transformational and sustainable change must include “ways for all of us to heal from the wounds of the past, to build mutually respectful relationships across racial and ethnic lines that honor and value each person’s humanity, and to build trusting intergenerational and diverse community relationships that better reflect our common humanity.”⁵⁸

Providence, Rhode Island adopted a truth and reconciliation process to address racial inequities, beginning with the mayor and a group of advisers meeting to develop “a plan for sharing the state’s role throughout history in the institution of slavery, genocide of Indigenous people, forced assimilation[,] and seizure of land.” This was followed by city leaders reviewing laws and policies that resulted in discrimination against Black and Indigenous people and concluded with community discussion about the “state’s history and the ways in which historical injustices and systemic racism continue to affect society today.”⁵⁹ This process should be used as a model to provide essential workers and their communities with an opportunity to share their experiences and stories with the government, particularly policymakers and regulators.

Second, essential workers, particularly low-wage and racial and ethnic minority workers, must be empowered and engaged as leaders in the development and implementation of new emergency preparedness laws and plans. Community engagement is a key priority of public health. In fact, the HHS 2011 toolkit and 2012 report noted that “effective preparedness and response requires the ongoing and active engagement of diverse communities” before, during, and after an emergency, through “sustainable partnerships between community representatives and the public health preparedness systems”; only then “can plans and programs be tailored to a community’s distinct social, economic, cultural, and health-related circumstances.”⁶⁰ The government must engage communities and give them the power to lead the process of revising, implementing, and evaluating emergency preparedness laws and plans before, during, and after an emergency.⁶¹ For example, there should be a community-led, employee safety board that consults the White House and assists in the development and implementation of an emergency preparedness worker protection agenda. There should also be community-led, employee safety boards that advise HHS, OSHA, and the states in the creation, implementation, tracking, and evaluation of new emergency preparedness laws and plans.⁶²

The Los Angeles County supervisor is already empowering essential workers to play a central role in COVID-19 mitigation efforts. The county unanimously approved a program in which workers from certain sectors (the food and apparel manufacturing, warehousing and storage, and restaurant industries) will form public health councils to help ensure that employers follow coronavirus safety guidelines.⁶³ Communities and individual community members involved in this process of revising, implementing, and evaluating emergency preparedness laws and plans should also be paid. For instance, President Biden issued a National Strategy for the COVID-19 Response and Pandemic Preparedness that has directed the federal government to use and pay community members and community health workers as part of the COVID-19 pandemic response.⁶⁴

Third, emergency preparedness laws and plans must change the structure of the emergency preparedness response by incorporating measures to address employment factors and providing financial support for essential workers, their families, and the communities in which they live. In particular, the emergency preparedness laws and plans must mandate that employers who employ essential workers provide them with health and safety protections to prevent the workplace spread of disease during a pandemic. This could be accomplished by OSHA and the OSHA-approved states adopting the 2010 proposed airborne infectious disease rule.⁶⁵

Furthermore, all federal and state emergency preparedness laws and plans must mandate that if an individual is employed in an essential job during a pandemic, that individual should automatically receive paid sick leave – without exception. Paid sick leave “reduces costly spending on emergency health care, reduces the rate of influenza contagion, and saves the US economy $214 billion annually in increased productivity and reduced turnover.”⁶⁶ Some cities, such as Oakland, California, are already requiring that employers provide paid sick leave to essential workers during the pandemic.⁶⁷

Additionally, until the end of the COVID-19 pandemic, the government should provide essential workers with financial support, such as hazard pay, savings accounts, and survivorship benefits for their families. This will ensure essential workers receive compensation for risking their lives and that their families are provided for if the essential worker dies. Additionally, based on suggestions from a coalition of South Dakota meat plant workers, the state and federal government should use federal COVID-19 economic relief funds to invest directly in low-income communities and “communities of color severely and disproportionately impacted by the deadly virus.”⁶⁸ This can be accomplished through the implementation of a guaranteed basic income until the end of the pandemic for these communities.⁶⁹ The mayors of Mount Vernon, New York and St. Paul, Minnesota have already used part of their federal economic relief money to provide a guaranteed income program for some residents. The federal and state government already have the power, tools, and money to implement these changes.

B Implementation

During the COVID-19 pandemic, Congress enacted economic relief bills that either provided authority or left room for the President, HHS, and the states to shift these funds to support states’ individual responses to COVID-19. In particular, HHS has the authority under the federal economic relief bills to regulate the distribution of some of the funds. HHS has used this authority to approve the use by Arkansas and New Hampshire of relief funds to provide hazard pay to home health workers.⁷⁰ HHS should use this authority to direct all states to provide paid sick leave to essential workers left out of the bills, including home health care workers. President Biden has the authority to address the lack of workplace protections for essential workers. On January 21, 2021, President Biden issued an executive order concerning worker health and safety, as well as a COVID-19 plan with recommendations to address worker safety issues.⁷¹ As a result, OSHA adopted mandatory COVID-19 workplace protections for health care workers. The President should issue another executive order directing OSHA to publish and adopt the 2010 airborne infectious disease rule for all workers.

Moreover, with the enactment of the Public Health Security and Bioterrorism Preparedness and Response Act of 2002, Congress directed the Secretary of HHS to coordinate a strategy for developing and implementing a national emergency preparedness response for public health emergencies and bioterrorism.⁷² In 2006, Congress amended the Public Health Services Act directing the Secretary of HHS to lead “all federal public health and medical response to public health emergencies and incidents.”⁷³ These acts expanded federal authority for responding to public health emergencies and provided funding for federal and state emergency preparedness plans. Thus, the Secretary of HHS has, and should use, the authority to develop and implement a revised national emergency preparedness response for public health emergencies and bioterrorism that includes addressing employment factors. Using the funding power, HHS should require states that receive funding for emergency preparedness under the Public Health Services Act to implement a truth and reconciliation process as well as to engage communities in the revision of emergency preparedness laws and plans.

These are just a few suggestions for eradicating pandemic health inequities experienced by essential workers. However, to fully address pandemic health inequities, the federal and state government must ensure that essential workers, particularly low-income and racial and ethnic minority workers, are guiding the ongoing process to revise emergency preparedness laws and plans, even when there is not an emergency situation.

14 The Jacobson Question Individual Rights, Expertise, and Public Health Necessity

Lindsay F. Wiley

I Introduction

Individuals and organizations asserting their personal liberty and economic interests have always challenged public health authority. Since the founding of the republic, state legislatures have used their police power to enact sweeping public health statutes.¹ State and local executive branch officials (some of them appointed for their particular expertise) have used the broad authority granted to them by statutes to issue regulations and orders to protect the public’s health. People and organizations affected by these public health laws (statutes, regulations, and orders) have called on the judicial branch to review them – to determine whether the legislative and executive branches have complied with constitutional and statutory limits on their power.

Some litigants claim that public health laws violate the civil liberties protected by constitutional provisions and certain statutes. Some litigants rely on the separation of powers enshrined in the structure of the federal and state constitutions to claim that executive branch officials have overstepped the bounds of authority properly delegated to them by statutes.

Since 1905, Jacobson v. Massachusetts has guided courts when they adjudicate challenges to public health laws.² Jacobson upheld a state statute that authorized local health boards to make smallpox vaccination compulsory if, in the opinion of the medical experts on the board, it was necessary for public health. Jacobson supported public health necessity as a counterweight that justifies encroachments on civil liberties under at least some circumstances. It also recognized the constitutional authority of state legislatures to protect the public’s health – including by delegating power to executive branch officials – without unwarranted interference from federal judges.

In 2020, legal disputes over COVID-19 emergency orders put Jacobson to the test.³ In one of the first major lawsuits challenging a COVID-19 restriction, the Fifth Circuit Court of Appeals developed a novel interpretation of Jacobson. The Fifth Circuit (and the many courts that followed its lead) held that during a public health emergency, Jacobson requires judges to suspend the standards they would ordinarily apply to civil liberties claims and instead apply the specific (and highly deferential) standard the Supreme Court set forth in 1905. In this chapter, I refer to the Fifth Circuit’s 2020 interpretation of Jacobson as the “public health emergency suspension doctrine,” or the “suspension doctrine” for short.⁴ From April to November 2020, judges relied on the suspension doctrine in dozens of cases upholding orders prohibiting gatherings, restricting business operations, limiting interstate travel, requiring people to stay at home, and mandating face masks. On November 25, 2020, the Supreme Court weighed in on the question of which level of deference the courts should give to executive orders in a public health emergency. It rejected the suspension doctrine and cast doubt on the future of Jacobson as a modern precedent.

In the post-2020 era, litigants are calling on courts to answer the Jacobson question: Is Jacobson v. Massachusetts still a valid precedent?⁵ This chapter argues that the foundational principles enshrined in Jacobson endure, but public health advocates will need to craft new arguments that incorporate these principles within modern (and sometimes less deferential) standards of judicial review.

II The Evolution of Jacobson

Prior to 2020, Jacobson was not on the short list of cases famous among non-lawyers. It was not even particularly well known among the wider legal community. But for more than a century, specialists have revered Jacobson as the foundational authority for laws that protect the public’s health.

In 2020, a flood of lawsuits challenging COVID-19 mitigation efforts put Jacobson in the public spotlight. Hundreds of news stories, op-eds, and podcasts mentioned the case by name.

Beginning in April 2020, many federal judges interpreted Jacobson in a novel way, relying on it as the basis for a new doctrine governing the level of deference that courts should grant executive branch officials and legislatures during a public health emergency. These courts set aside modern precedents and suspended ordinary standards of judicial review, using Jacobson as a shortcut for upholding COVID-19 mitigation orders without grappling with the thorny legal questions that some of these orders raised. In November 2020, when the Supreme Court rejected this interpretation of Jacobson, it cast a shadow on the continued vitality of the case as a whole.

To protect Jacobson as a precedent for current and future disputes, public health advocates must parse its meaning carefully. In this section, I provide a chronology of Jacobson’s evolution, identifying the specific interpretation of it that the Supreme Court majority rejected in 2020 and separating that from foundational principles that courts can and should rely on in the post-2020 era.

A Jacobson in 1905

Around the turn of the twentieth century, life-threatening communicable diseases put the public’s health in more or less constant peril. To control the spread of disease, state and local officials routinely brought their police power to bear against businesses and individuals. For smallpox, the availability of an effective vaccine – the first ever developed – prompted state and local governments to require individuals to submit to vaccination under penalty of fines, exclusion from school, and even by force.⁶ To cope with frequent smallpox outbreaks, the Massachusetts legislature passed a statute authorizing local health boards to require residents to be vaccinated if, in the opinion of the medical experts on the board, it was “necessary for the public health.”⁷ The statute imposed a penalty of five dollars for anyone over the age of twenty-one who failed to comply with a local health board’s vaccination requirement. In 1902, the board of health of the city of Cambridge, Massachusetts adopted a regulation requiring smallpox vaccination in response to a worsening outbreak. Henning Jacobson, the pastor of a church in Cambridge, refused to be vaccinated. In a criminal proceeding the city initiated to collect the fine, Jacobson claimed that requiring vaccination violated the Due Process Clause of the Fourteenth Amendment, among other provisions.⁸ Jacobson argued that the state vaccination law was “unreasonable, arbitrary, and oppressive, and, therefore, hostile to the inherent right of every freeman to care for his own body and health in such way as to him seems best.”⁹ The case eventually made its way to the Supreme Court, resulting in one of the first major decisions where the Court applied the Fourteenth Amendment to a police power regulation.

The Supreme Court rejected Jacobson’s arguments and upheld the state vaccination law. In an opinion written by Justice John Marshall Harlan, the Jacobson Court recognized that the Fourteenth Amendment does impose limits on the state’s police power. Harlan reasoned that the

power of a local community to protect itself against an epidemic … might be exercised in particular circumstances and in reference to particular persons in such an arbitrary, unreasonable manner, or might go so far beyond what was reasonably required for the safety of the public, as to authorize or compel the courts to interfere for the protection of such persons.¹⁰

The Court directed that judges should overturn police power laws only in cases where “a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law.”¹¹ Yet the Court reasoned that “liberty regulated by law”¹² subjects individual rights to “restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.”¹³ Under the circumstances, the Massachusetts vaccination law was reasonable, proportionate to the threat, and consistent with public health necessity; consequently, the Court upheld the statute.

Although the Cambridge Board of Health had acted in response to a smallpox outbreak, the Jacobson Court did not clearly limit its holding to public health emergencies – or even to public health regulations. The standard of judicial review that the Court articulated and applied in Jacobson was, at the time, commonly applied by state courts in challenges to police power regulations generally (of which public health laws are a subset).¹⁴ In a dissenting opinion that Justice Harlan authored shortly after Jacobson, he argued that the definitive standard of review for any police power regulation was the one set forth in Jacobson.¹⁵ Several months later, in a case upholding state regulations governing the sale of milk, the Court’s majority opinion cited Jacobson for the proposition that “the state has a right, by reasonable regulations, to protect the public health and safety,” without any reference to epidemics or other exigencies.¹⁶ Jacobson was “the Court’s first systematic statement of individual rights as limitations imposed on government.”¹⁷ It is best understood as having “established a floor of constitutional protection” that courts have subsequently built upon in cases ranging far beyond the epidemic context in which the regulation upheld in Jacobson was adopted.¹⁸

When Jacobson was decided, the Supreme Court had not yet developed the tiered levels of review (rational basis review, intermediate scrutiny, and strict scrutiny) that courts now use to adjudicate federal constitutional rights. Beginning in the mid-twentieth century, the Court developed these varying levels of judicial review for different types of civil liberties claims.¹⁹ The intermediate and strict scrutiny standards that now determine the outcome in some types of cases are far less deferential to the factual determinations and policy choices of the legislative and executive branches. In modern cases that infringe on fundamental rights, judges are supposed to probe the government’s asserted interests and the suitability of fit between its chosen means and stated ends more deeply, rather than refraining from overturning any law that is arguably reasonable.

B Jacobson in 2020

In the early weeks of the COVID-19 pandemic, state and local officials across the United States issued hundreds of unprecedented executive orders closing businesses, restricting travel, ordering the general public to stay at home, and implementing other measures in hopes of avoiding the devastation experienced in Wuhan, Lombardy, and New York City. Coronavirus mitigation measures adopted in 2020 and 2021 differed from those implemented in the 1918 flu pandemic and mid-century polio outbreaks in important ways. Relying on authority delegated in general emergency and disaster management statutes that largely date to the 1960s and 1970s, governors, not boards of health, typically took the reins on coronavirus mitigation orders.²⁰ Many coronavirus mitigation orders remained in place longer than the average length of closures in 1918. In addition, coronavirus mitigation orders included innovative measures that had not been implemented in response to previous epidemics.

One innovation was restrictions on elective medical procedures. Most governors either ordered or recommended that health care providers cease procedures deemed elective, nonessential, or not lifesaving. These measures were intended to reduce close contacts among people who could transmit infection and to preserve medical resources for the treatment of COVID-19 patients. In Texas, the state attorney general interpreted Governor Abbott’s executive order to effectively bar all abortions as elective medical procedures. Providers and patients filed suit challenging the order’s constitutionality.

In re Abbott, decided by the Fifth Circuit in April 2020, was one of the first major court decisions upholding a COVID-19 mitigation order.²¹ The plaintiffs were abortion providers who filed a lawsuit arguing that to the extent that the Texas emergency order banned abortions, it violated the Fourteenth Amendment’s Due Process Clause. The district court judge who initially heard the case granted a temporary restraining order to the plaintiffs (barring Texas from enforcing its prohibition on abortions while litigation continued) without referencing Jacobson at all.²² The judge held that under the Supreme Court’s abortion precedents dating back to Roe v. Wade, “[t]here can be no outright ban on such a procedure.”²³ He referred only obliquely to the defendant’s argument that Jacobson supplied the correct standard, not Roe or subsequent cases establishing abortion rights: “This court will not speculate on whether the Supreme Court included a silent ‘except in a national emergency clause’ in its previous writings on the issue [of abortion].”²⁴

The Fifth Circuit stepped in to stay the lower court’s decision, effectively lifting the restraining order and permitting the state to enforce its restrictions on abortion while litigation continued. The appellate court accepted the defendant’s argument and interpreted Jacobson in a new way. Describing Jacobson as imposing “the controlling standards, established by the Supreme Court more than a century ago, for adjudging the validity of emergency measures,” the majority set aside the prevailing test for abortion laws – that is, whether the regulation at issue imposes an “undue burden” on the right to choose an abortion. The court suspended the standard of review that would ordinarily apply to restrictions on abortion in favor of a rule that “the scope of judicial authority to review rights-claims” during “a public health crisis” is limited to cases where “a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law.”²⁵ In dicta, the court suggested that this minimal level of scrutiny applies equally to “one’s right to peaceably assemble, to publicly worship, to travel, and even to leave one’s home.”²⁶ The appellate court turned the lower court’s reasoning on its head, arguing that if the Supreme Court had intended for Roe or its subsequent cases on abortion rights to be exceptions to the general rule that in a public health emergency the Jacobson test applies, it would have said so in specific terms.²⁷ In the months that followed, dozens of additional courts adopted the Jacobson suspension doctrine to uphold orders closing businesses, limiting gatherings, directing the general public to stay at home, and restricting interstate travel.

In brief opinions accompanying a series of preliminary orders beginning in May 2020, individual Supreme Court justices revealed their positions on Jacobson’s relevance to COVID-19 disputes. In the first such case, South Bay United Pentecostal Church v. Newsom,²⁸ Chief Justice John Roberts authored an opinion concurring with the majority’s decision to leave California’s limits on religious services in place while litigation continued. Roberts cited Jacobson favorably for the general proposition that “[o]ur Constitution principally entrusts ‘[t]he safety and the health of the people’ to the politically accountable officials of the States ‘to guard and protect.’”²⁹ His opinion indicated that he believed California’s restrictions would pass muster under ordinary standards of review. Justice Brett Kavanaugh wrote a dissenting opinion, joined by Justices Clarence Thomas and Neil Gorsuch. The Kavanaugh dissent indicated that these three justices would have provided injunctive relief to the plaintiff church because they believed that California’s restrictions failed to satisfy ordinary standards of review. Neither of the opinions discussed the suspension doctrine that had taken hold among many lower courts.

In a similar case in July, the Supreme Court again denied preliminary injunctive relief to a church challenging COVID-19 restrictions. In his dissenting opinion in Calvary Chapel Dayton Valley v. Sisolak, Justice Samuel Alito explicitly discussed the suspension doctrine. Alito (writing for himself, Kavanaugh, and Thomas) argued that “it is a mistake to take language in Jacobson as the last word on what the Constitution allows public officials to do during the COVID-19 pandemic.”³⁰

In October, the Court refused to stay a lower court order enjoining limits on mail-in voting. In Democratic National Committee v. Wisconsin State Legislature,³¹ Kavanaugh (writing in dissent to indicate that he would have overturned the lower court decision and let the limits on mail-in voting stay in place) endorsed “a limited role of the federal courts in COVID-19 cases.”³² Kavanaugh quoted Roberts’s earlier invocation of a basic principle from Jacobson, but without attribution to Roberts or Jacobson. His version replaced “officials” with “legislatures.”³³

In November 2020, shortly after Justice Amy Coney Barrett replaced the late Justice Ruth Bader Ginsburg on the Court, the new majority changed the course of the Court’s religious liberty jurisprudence and rejected the suspension doctrine – for First Amendment religious liberty claims, at least.³⁴ In Roman Catholic Diocese of Brooklyn v. Cuomo,³⁵ the Court granted preliminary relief to the houses of worship who filed suit, enjoining New York from enforcing occupancy limits on religious services. In a per curiam (unsigned) opinion, the majority applied strict scrutiny – the highest standard of review. Under the suspension doctrine, the Court would not have applied strict scrutiny. But it need not have done so under ordinary standards of review either. To trigger strict scrutiny, the majority found that New York’s COVID-19 mitigation orders were not neutral laws of general applicability, but rather “single[d] out houses of worship for especially harsh treatment.”³⁶ This determination departed from the Court’s past religious liberty precedents. It also misrepresented the facts on the ground.

The majority opinion did not discuss Jacobson or the suspension doctrine explicitly, but several justices did discuss it in their concurrences and dissents. Gorsuch concurred in the decision to grant injunctive relief. In an opinion joined by no other justice, Gorsuch harshly criticized the suspension doctrine and accused Roberts of endorsing it by citing Jacobson in his South Bay concurrence. Gorsuch argued that “Jacobson didn’t seek to depart from normal legal rules during a pandemic, and it supplies no precedent for doing so. Instead, Jacobson applied what would become the traditional legal test associated with the right at issue.”³⁷ Gorsuch implied that rational basis review would be the proper test for a Fourteenth Amendment challenge to a vaccination law under modern precedents because a requirement to get vaccinated, pay a fine, or establish that one qualified for an exemption would not implicate a fundamental right that would trigger heightened review.

In their Roman Catholic Diocese of Brooklyn dissent, Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor quoted Roberts’ South Bay concurrence (from May 2020) favorably. They appeared to agree with Roberts “that courts must grant elected officials ‘broad’ discretion when they ‘undertake to act in areas fraught with medical and scientific uncertainties.’”³⁸

Roberts wrote a separate dissent in Roman Catholic Diocese of Brooklyn to distinguish between the suspension doctrine and the basic principles of Jacobson that he had previously endorsed in South Bay. He defended himself against Gorsuch’s accusations. Arguing that “the actual proposition [he] asserted” (and cited Jacobson in support of) in his South Bay concurrence “should be uncontroversial,” Roberts concluded that Gorsuch’s “concurrence must reach beyond the words themselves to find the target it is looking for.”³⁹ Roberts appeared eager to distinguish his own view of Jacobson from that of the lower courts who had adopted the suspension doctrine.

In my view, the Supreme Court was correct to reject the suspension doctrine in favor of applying ordinary standards of review.⁴⁰ The point is not that the emergency orders were not justified; rather, suspending ordinary judicial review is the wrong way to evaluate them. I strenuously object to the Fifth Circuit’s novel interpretation of Jacobson, which I have characterized in previous work with constitutional law expert Steve Vladeck as deeply misguided.⁴¹ We argued that the vast majority of COVID-19 mitigation orders (but probably not the across-the-board ban on abortions challenged in In re Abbott) would have passed muster under ordinary standards of review. Subsequent cases bore out this prediction. The vast majority of COVID-19 cases that rejected the suspension principle and applied modern standards of review ultimately upheld emergency measures.

The balancing and proportionality tests that modern standards direct the courts to employ are adaptable to emergency conditions. During an emergency, the government’s purpose becomes far more compelling and the evidence a court will expect it to present will understandably and appropriately be less well developed. By interpreting Jacobson as a directive to suspend ordinary standards of judicial review during a public health emergency, many lower courts in 2020 sidestepped important legal questions. They abdicated their constitutional responsibility for “forc[ing] the government to do its homework – to communicate not only the purposes of its actions, but also how the imposed restrictions actually relate to and further those purposes.”⁴² Ironically, by using Jacobson as a kind of rubber stamp and failing to require government officials to justify their orders in the ordinary way, these courts robbed government officials of firm precedents to support similar orders in the future.

Fortunately, some lower courts rejected the suspension principle and applied ordinary standards of review throughout 2020. As a result, when the Supreme Court rejected the suspension doctrine in November 2020, at least some federal courts had already upheld every major type of COVID-19 mitigation order pursuant to ordinary standards of review.⁴³

III The Enduring Meaning of Jacobson in 2021 and Beyond

Jacobson’s specific formulation of the standard that should guide judicial review may have been characteristic of a bygone era of constitutional jurisprudence, but it has enduring relevance to contemporary disputes. Indeed, lower courts have continued to rely on it to uphold vaccination requirements in the aftermath of Roman Catholic Diocese. They have applied the modern standard of rational basis review (which is similar to, but not entirely synonymous with, the standard applied in Jacobson) to cases that do not involve religious liberty challenges.⁴⁴

Jacobson should be known (as it was among public health law experts prior to 2020) not for its specific (and outdated) description of the standard for judicial review, but for its assertion of the common good as a counterweight to individual liberties. It also provides support for legislative delegations of broad authority to local boards of health guided by the standard of public health necessity.

A The “Second Language” of Community

Advocates often struggle to build support for public health interventions because individualistic cultural norms tend to dominate political debates. Robert Bellah and colleagues have described individualism as the “first language” of American culture, “centered on the values of freedom, self-determination, self-discipline, personal responsibility, and limited government.”⁴⁵ Public health scholars have noted that the “second language” of America identified by Bellah et al. – “a language of inter-connectedness[,] egalitarian and humanitarian values, of interdependence and community” – is the “first language” for public health.⁴⁶ Jacobson is a Rosetta Stone by which these two languages are connected in American public health jurisprudence.

The enduring meaning of Justice Harlan’s “nuanced and Delphic opinion” in Jacobson is that in emergencies,⁴⁷ as in routine times, individual liberties should be balanced against collective needs. The Court put “the duty” of “every well-ordered society” to “conserv[e] the safety of its members” on an equal footing with the right of “the individual” to “assert the supremacy of his own will” and to “dispute the authority … of any free government existing under a written constitution, to interfere with the exercise of that will.”⁴⁸ Jacobson offered a ringing endorsement of the social compact in which cooperative efforts to ensure the public’s health and safety are important counterweights to individual rights. “There are manifold restraints to which every person is necessarily subject for the common good,” the Court reasoned.⁴⁹ “On any other basis organized society could not exist with safety to its members.”⁵⁰

Even if Jacobson’s highly deferential standard no longer applies to laws that infringe on fundamental rights under modern precedents, the basic principles of public health necessity and proportionality that the Jacobson Court set forth remain relevant.⁵¹ Modern standards of review may calibrate the scales differently, but collective necessities still serve as counterweights when courts exercise their duty to protect individual rights. In the post-2020 era, public health advocates will need to craft new arguments that incorporate the basic principle that collective needs may outweigh individual rights within the bounds of modern standards of review that require the government to articulate in more compelling terms its purpose and why the means it has chosen are likely to further that end.

B Deference to Democratic Delegation

Though it has primarily been relied on in cases asserting individual liberties, Jacobson also offers enduring counsel for courts adjudicating claims that public health measures violate the structural constraints imposed by constitutional commitments to separation of powers.⁵² Concluding that “[t]he authority to determine for all what ought to be done in such an emergency must have been lodged somewhere or in some body,” the Court in Jacobson approved the legislature’s choice “to refer that question, in the first instance, to a board of health composed of persons … appointed … because of their fitness to determine such questions.”⁵³ Thus, the Court endorsed judicial deference to the scientific findings of experts exercising delegated authority, noting that the statutory standard authorized local officials to make vaccination compulsory “only when, in the opinion of the board of health, that was necessary for the public health or the public safety.”⁵⁴

As a statutory guardrail, the standard of public health necessity has an impressive pedigree. State public health statutes typically delegate authority to health officials to take measures they deem “necessary” to prevent or slow the spread of communicable disease during a declared emergency. Indeed, the public health necessity standard provides more guidance to executive branch officials (and the courts reviewing their actions) than many of the general emergency or disaster management statues on which governors frequently relied during the COVID-19 pandemic. Some governors used general emergency management statues to prohibit local government measures – and even private business policies – that were more protective of public health than the governor preferred, arguing that these statutes give unfettered discretion to the state executive to manage emergencies as they see fit.⁵⁵ Courts have not typically relied on Jacobson in recent cases interpreting the breadth of officials’ authority under these provisions and whether they run afoul of the constitutional doctrine that legislatures cannot delegate their authority to the executive branch without providing sufficient principles to guide officials’ exercise of discretion. But the courts can and should rely on the basic principles set forth in Jacobson when they are called on to interpret public health statutes.

IV Conclusion

As Lawrence Gostin and I have previously commented: “[p]ublic health has always been politically controversial. And public health law – which concerns the extent of government authority to intervene to protect the public’s health – lives in the thick of this controversy.”⁵⁶ There have been many calls throughout the COVID-19 pandemic for elected leaders to “follow the science” and for judges to defer to them when they do. But public health policy cannot be determined exclusively through scientific methods. Decisions about the public health goals that we collectively pursue and how we pursue them should be informed by scientific risk assessments, but these decisions also involve assessments of competing values and interests that require open, forthright, and inclusive deliberation. Delegations of authority to health officials who have been appointed in part based on their scientific expertise embody this balance between science and policy and are wholly consistent with the structural constraints embodied in the federal and state constitutions. The limits that judicial protection of individual rights imposes on majoritarian rule are not absolute. They are flexible and adaptable. Setting aside ordinary standards of review, rather than articulating how they apply under exigent circumstances, disserves the social compact that is at the heart of Jacobson. The ability of a free, democratic society to rise to the challenge of taking “action in concert” (during an emergency and after it has ended) is dependent upon, rather than being hindered by, respect for individual rights and the rule of law.⁵⁷