Federal Leadership Could Prevent Pandemics
The federal government, particularly the Centers for Disease Control and Prevention, should provide more leadership over the country’s response to contagions such as the novel coronavirus pandemic, a University of Virginia School of Law student argues in a new paper.
Kyle Connors ’21, a future life science lawyer who previously co-authored research that appeared in Nature Biotechnology (a sister publication of Nature magazine), has authored the new paper “Federalism and Contagion: Reevaluating the Role of the CDC.”
As it stands, the CDC is empowered mainly to give advice that states and localities can choose to follow or disregard, with area health departments and local officials deciding the actual on-the-ground responses, which may differ significantly from guidelines.
Connors argues that the public health response during a looming pandemic needs to be decisive and uniform in a way that only the CDC can master, and Congress could facilitate.
He spoke to UVA Law over the phone about the history of epidemics in the U.S., how the law got to be the way it is, and the details of what he suggests.
Why did you write this paper?
I’m in a fantastic course with Professor Margaret Foster Riley on Topics in Health Reform. I had this idea percolating for a while after I started to see what was going on in China, in January and early February. Professor Riley provided essential guidance and a little bit of leeway in terms of letting me write this paper.
I was thinking initially about travel bans, or if a state tried to close its border, what would happen — what the constitutional implications of that would be. In fact, I just saw today a county in North Carolina put checkpoints at all points of entry in response to the coronavirus outbreak. And then I expanded my thought process into forming a thesis, after researching our response to the 1918 epidemic and the things that went right and wrong, in addition to the federal government’s power over quarantine.
I was also already interested in this topic area because I have a degree in microbiology. I used to work in a vaccine development lab at a small pharmaceutical development company where we manufactured clinical trial vaccines for various diseases. And that was really interesting to me because we were at the front lines of medicine.
What is the main point your paper makes?
I want to qualify my thesis a little bit in light of recent news. The CDC has rightly been a lightning rod of criticism of late, mostly because of their bungling of the tests early in the epidemic. However, local governments also do not have an unblemished history in response to pandemics. In this paper, I’m arguing for a rebalancing of public health federalism in favor of the federal government in certain areas where a uniform response is preferable. A pandemic is a national problem that requires a national response. This point may even gain more salience soon, when quarantines are lifted in certain areas, by state and local governments, at the recommendation or in opposition of federal officials.
By “public health federalism,” do you mean the power to enforce?
Yes. In the United States, the police power, which includes power over public health, is largely the responsibility of state and local governments. Local health departments have traditionally been on the front lines of responding to public health crises.
Why doesn’t the federal government already have the power you would like to see?
There are two points. The first point is that state and local sanitary ordinances are still the province of the state and local governments. Even in a national emergency, the CDC issues broad guidance to schools and universities and hospitals, but they don’t really give specifically tailored instruction to areas, which may be experiencing quite different levels of an outbreak. So they’re exercising power in a broad and nonspecific sense.
And then over the quarantines, the federal government has quarantine authority obviously at the international border. But in terms of intrastate quarantine authority, the federal government at the moment doesn’t have that authority, unless the epidemic crosses state lines. And even then, that authority has rarely if ever been exercised. The Supreme Court has suggested that Congress could preempt state and local governments’ quarantine authority if they chose, which Congress debated in the late 1800s and early 1900s, but never passed.
Can you talk more about the history of state and local control?
Even from the very beginning in American history, quarantine and sanitary ordinance authority has mostly been exercised by state and local health departments. Right after the Constitution was ratified, every single state subsequently passed their own quarantine laws.
In the landmark commerce clause case Gibbons v. Ogden, Chief Justice John Marshall even noted a state’s power includes quarantine laws. And actually, Paul Revere’s family was quarantined for a time in Boston for smallpox, which I thought was interesting.
And there’s many cases in which the Supreme Court has supported a state’s power over public health, including draconian quarantine measures.
What are your specific suggestions for federal handling of the problem moving forward?
This paper is pushing for a change in the way we currently respond to pandemics. One of the biggest difficulties in our response to this pandemic is that there are so many entities at the state and local government level that it seems almost impossible to create a coordinated response. And I think this brings about issues such as collective action problems, in the sense that a rational actor, relying on herd immunity, might not want to get a vaccine if they know everyone else got a vaccine because there is some risk associated with getting it. In the same sense, a state may want to reopen bars and restaurants (after a period of pandemic-related closure) in a border city while the other state bordering the city wants to keep them closed. And between states, there is also a potential for free-riding. I think that the federal government could ameliorate these effects if it were involved. And only the federal government, at least theoretically, has the interests of the whole nation.
I’m advocating kind of a two-pronged approach for CDC influence over local ordinances. First, a formal grant approach. The CDC can issue local-specific guidance in which, if it is carried out by those localities, they can be eligible for very large grants. An example might be that the CDC should have directed all hospitals two weeks ago to set up fever clinics outside in order to not infect people in the hospital if people come with symptoms. The CDC could have awarded large grants to localities that set up these clinics outside their hospitals.
And then I’m also advocating for stronger informal influence. Right now, the CDC makes broad recommendations that apply to many localities. They do not make many locally specific recommendations. I believe just by the CDC issuing local recommendations, it could positively influence local policymaking. For example, if they make a recommendation for an area experiencing a severe outbreak, local citizens could pressure reluctant city officials to follow the guidance.
The CDC has previously taken this kind of hands-off approach when dealing with localities. For example, during the 1985 HIV epidemic, the CDC recommended contact tracing and regulation of high-risk HIV establishments to local health departments, but left those decisions, really, to be made by the localities. This exemplified the American pro-legal local rights approach. But that seemed to result in a six-times-higher HIV infection rate compared to Cuba’s initial iron-fist reaction to the epidemic. In fact, recently the state of Indiana was tardy on following the CDC’s recommendation in dealing with an HIV epidemic, and studies showed if acted on earlier, it could have been cut by 90%.
Would your recommendations withstand constitutional challenges?
Under the Public Health Service Act, the CDC, through the surgeon general, is authorized to make regulations that are necessary to prevent the spread of communicable diseases from one state to another. So the overall authority exists. Our application of those authorities still assumes that intrastate action has limited effect on other states. But, even an intrastate epidemic would dramatically affect interstate commerce. Justice Antonin Scalia even pointed this out in an oral argument — communicable disease is intrinsically related to interstate commerce.
As for quarantine authority, the Supreme Court has previously acknowledged the right of Congress to preempt state and local regulation in this area, despite a background principle of state police power. The proposed expansion of the grant program would not violate the 10th Amendment because it conditions only new funding on participation, and not existing funds.
What are your career plans after you graduate from law school?
I’m planning to go into a life science practice at a large law firm. I am excited to have the opportunity to work with companies developing lifesaving technologies.
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