50 Top Legal Experts Examine Inadequate Policy Response to COVID-19

The United States continues to address and recover from the year-old COVID-19 pandemic, which has resulted in more than 500,000 deaths so far and a historic economic recession. Fifty top legal experts convene to offer a new assessment of the U.S. policy response to the crisis, COVID-19 Policy Playbook: Legal Recommendations for a Safer, More Equitable Future, and recommend policy solutions at all levels of government, as the nation works to quell the current crisis and carry out plans to rebuild.

According to a release, this report updates and expands the initial rapid COVID-19 legal assessment the experts published in August 2020. The assessment details how policymakers can best respond to and recover from the current pandemic, and reimagine the nation’s health care and public health systems to better prepare the nation for future infectious disease outbreaks.

In the report, the authors include proposals on how to strengthen executive leadership for a stronger emergency response, expand access to public health, health care and telehealth; fortify protections for workers; and implement a fair and humane immigration policy. Throughout, the authors explore what legal frameworks could help dismantle the structures of racism and inequality that produce unjust health outcomes now, and may prevent the nation from successfully navigating similar crises in the future.

Key findings include:

• Government efforts were inadequate to stop the United States from enduring the worst COVID-19 outbreak in the world, in large part because layered strategies were pursued ad hoc at the state and local levels without consistency or coordination, adequate guidance or evaluation, or necessary information. The response has largely been mounted in a contentious political atmosphere where the federal government consistently undermined public health efforts and messaging.
• The Biden Administration has already taken promising early steps to implement a coordinated national strategy that will use existing federal powers to advance COVID-19 responses, harmonize guidance to encourage good public health practices, collect necessary data—including statistics on racial, ethnic, and economic disparities—to clearly assess the areas where targeted interventions are needed to slow COVID-19 transmission, and prioritize equity in policy making, including in vaccine distribution and the imposition of evidence-based community mitigation strategies and supports.
• The division of power in the United States between the federal government and the states and tribal authorities, between branches of government within each jurisdiction, and between states and their local governments and tribal authorities is often a strength. During the COVID-19 pandemic, this dispersion of power helped ensure that some levels of government could respond to the pandemic even when others failed to do so. However, it also enabled political leaders to try to evade responsibility, and facilitated an inconsistent and often incoherent response.

Some recommendations in this policy report included:

• State and local governments should continue to use targeted orders to implement social distancing and other community mitigation strategies to reduce transmission.
• The Centers for Disease Control and Prevention should provide guidance to states, localities, and institutions about how to best target and layer these community mitigation strategies and standardize surveillance, contact tracing, and data management approaches.
• Public health infrastructure must be repaired. The COVID-19 pandemic has demonstrated the importance of public health capacity, and Congress should fund efforts to expand the public health workforce, to modernize and expand public health institutions, and to support scientific research.
• The federal government should centralize, coordinate, standardize and regulate data collection and distribution related to public health responses, including the use of a consistent approach to contact tracing.
• Federal, state, and local governments should enact policies that economically support individuals, businesses, and institutions during pandemics. Measures such as direct payments, childcare support, unemployment extensions, rental and food assistance, can help prevent disparate health outcomes. Legal protections from foreclosure, eviction, and utility shutoff moratoria, employment and anti-discrimination protections allow for better adherence with public health interventions and mitigation strategies.
• Additional resources and attention must be given to reduce racial and economic disparities in all of these initiatives.

According to a joint statement by the report editorial committee:

“With the end of the pandemic in sight, it may be tempting to dismiss its continued danger, and our collective agency to address it. We cannot afford to do that. Instead, now is the time for policymakers to undertake the legislative and regulatory initiatives that are needed to ensure that the nation is better able to withstand the next pandemic, as well as the everyday health threats that made Americans more susceptible to the worst effects of this virus. This means we need to address the many ways in which our laws have perpetuated the longstanding inequities that left our population so uniquely exposed, and so unequally vulnerable, to COVID-19.

“It’s time for the nation to get out of the cycle of responding to public health emergencies with fleeting attention and urgency that wanes after case numbers subside. We need a sustained course correction that builds our resilience to handle current and future public health emergencies.

“We have a historic opportunity to take the lessons offered to us by the COVID-19 crisis, mount a recovery that protects and benefits everyone, and rebuild our public health system.Our approach must be rooted in advancing equity and it should be designed to create durable, meaningful change. In order to end this pandemic and better prepare for the next one, leaders need to ensure they are focused on building up the nation’s public health systems through law and policy based on evidence of what worked and what failed in the fight against COVID-19.”

The editorial committee of COVID-19 Policy Playbook: Legal Recommendations for a Safer, More Equitable Future includes:

• Scott Burris, JD, Professor and Director of the Center for Public Health Law Research at Temple University’s Beasley School of Law and College of Public Health.
• Lance Gable, associate professor of law at Wayne State University Law School.
• Sarah de Guia, JD, CEO of ChangeLab Solutions.
• Donna E. Levin, JD, National Director of the Network for Public Health Law.
• Wendy Parmet, Professor, Northeastern University School of Public Policy and Urban Affairs.
• Nicolas Terry, Hall Render Professor of Law & Executive Director, Hall Center for Law and Health, Indiana University Robert H. McKinney School of Law.