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.Footnote 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.Footnote 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.

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,Footnote 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.

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.Footnote ¹ By October 2021, COVID-19 deaths exceeded those caused by the former deadliest pandemic, the 1918 influenza virus.Footnote ² Prominent commentators framed the turbulent early pandemic response as a failure of leadership, but this assessment does not tell the complete story.Footnote 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.Footnote 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);Footnote ⁵ and the Family First Coronavirus Response Act (Families First Act).Footnote 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.Footnote 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.Footnote ⁸ A disaster declaration initiates help from agencies such as the Department of Homeland Security and its sub-agency, the Federal Emergency Management Agency,Footnote 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.”Footnote 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.”Footnote 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.Footnote 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.Footnote 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.Footnote 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,Footnote ¹⁵ and other noncompliant behavior,Footnote ¹⁶ leading to his COVID-19 infection in October 2020.Footnote ¹⁷ By law, the federal government is responsible for disseminating stockpiled supplies,Footnote ¹⁸ yet President Trump told governors “we’re not a shipping clerk” and shifted to states the work of purchasing and distributing PPE.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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,Footnote 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.Footnote 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,Footnote ³⁰ and did not submit a plan to the Department of Education to receive ARPA’s school funding before the summer ended.Footnote 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.Footnote ³² Further, half of states ended ARPA’s federally funded unemployment benefits early.Footnote 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.Footnote 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.Footnote 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.Footnote ³⁶ With the pandemic raging on, some state legislatures in the 2021 session limited gubernatorial emergency powers, which could impair response to future PHE.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote ⁴³ Arkansas’ governor expressed regret for signing the bill banning mask-wearing as infection and death rates spiked in August 2021.Footnote ⁴⁴ Governors and state attorneys general from these and other states also challenged federal vaccine requirements for federal contractors,Footnote ⁴⁵ and health care providers,Footnote ⁴⁶ issued in response to these state officials’ reticence to promote or require vaccination, and federal courts have at least preliminarily agreed.Footnote 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.Footnote 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.Footnote ⁴⁹ Another study estimates that public health spending accounts for less than two cents on every health dollar.Footnote ⁵⁰ Florida has had one of the worst COVID-19 outbreaks and spends less than 2 percent of its budget on public health.Footnote ⁵¹ Even Massachusetts, which increased public health spending over the last decade, had fewer staff relative to the number of residents.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote ⁵⁶ Fourteen states did not expand Medicaid as of January 2020, and their populations have higher rates of chronic conditions and worse overall health;Footnote ⁵⁷ their hospitals are less financially stable and have closed at higher rates;Footnote ⁵⁸ and their budgets have not seen the stabilizing shift that comes with expansion funding.Footnote 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.Footnote ⁶⁰ In June 2021, the Biden Administration asked Georgia for data to support waiver continuation, and the waiver faces a court challenge.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.”

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.Footnote 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.”Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.”Footnote 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.Footnote 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.Footnote 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.Footnote ¹² Professors Westmoreland and William Sage have described how scoring considerations doomed President Clinton’s health reform plan and shaped that of President Obama.Footnote ¹³ And Professor Sage has described the importance of scorekeeping considerations for the design of single-payer health reforms such as Medicare for All.Footnote 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.Footnote 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.Footnote 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,”Footnote ¹⁷ “resulting in an underappreciation of public value and public improvement.”Footnote ¹⁸ Because the “widely dispersed benefits of preventing an epidemic would … remain unscored,”Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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,Footnote 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.Footnote 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.Footnote ²⁶ This was much higher than results reported in other countries, where the rate was 30 percent or lower.Footnote 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,Footnote ²⁸ care workers who lacked qualifying full-time employment,Footnote 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).Footnote 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.”Footnote 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),Footnote 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.Footnote ³³ And, of course, within the private sector, costs are fragmented between and among providers, payers, and patients.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote ³⁹ They did so.Footnote 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.Footnote 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.Footnote ⁴² And while ordinarily the coordination entailed in such an effort might itself be a barrier to such collective effort,Footnote 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,Footnote 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).Footnote 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,Footnote 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.Footnote ⁴⁷ The federal government fell short in doing so, however, due to both a lack of preparation and a lack of leadership.Footnote 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.Footnote 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).Footnote ⁵⁰ On the other hand, stability can often be desirable, too, to engender reliance and long-term investment.Footnote 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.Footnote 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.Footnote ⁵³ Congressional rules carry forward this encouragement of temporary spending enactments.Footnote ⁵⁴ Separation of powers norms endorsed by courts, commentators, and legislators further encourage Congress to fund spending programs annually to preserve power.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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.Footnote 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).Footnote 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.”Footnote 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.”Footnote 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.”Footnote ⁶⁴ This change is closely related to reforms pressed by Professor Westmoreland, discussed earlier.Footnote 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.

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.Footnote 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.Footnote 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.Footnote ³

III Making the Safety Net More Responsive

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.Footnote 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.Footnote 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.Footnote ⁶¹

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.

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.Footnote 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.Footnote 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.Footnote 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,Footnote ⁴ and a 2012 report regarding health equity and pandemics.Footnote 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.Footnote 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.Footnote 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.Footnote ⁸ In 2021, the Biden Administration,Footnote ⁹ and many employers, began to implement mandatory vaccine policies that required workers to get vaccinated or submit to testing.Footnote 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.Footnote ¹¹ Furthermore, the Supreme Court has prevented the Biden Administration’s vaccine mandate for non-health care workers from coming into effect,Footnote ¹² and many employers have begun to roll back their requirements.Footnote 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.Footnote ¹⁴ Health care workers have provided critical medical care to patients, while housekeeping and cleaning workers kept these institutions clean.Footnote 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.Footnote 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.Footnote 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.”Footnote 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.Footnote 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.Footnote ²⁰ Generally, these orders have relied on individuals to change their behavior to stop the spread of COVID-19.Footnote 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.Footnote 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.Footnote ²³ As a result, many essential workers were left unprotected against workplace COVID-19 infections, leading to pandemic health inequities.

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;Footnote ⁵⁶ (2) community engagement and empowerment; and (3) structural remediation and financial support.Footnote ⁵⁷

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.Footnote 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.Footnote 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.Footnote 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.Footnote 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?Footnote 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.

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.Footnote 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.

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.”Footnote 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.Footnote ⁵⁷