Category Archives: Vol. 11 No. 1—SPECIAL COVID-19 ISSUE

A special issue on the law, policy, and security issues of the COVID-19 pandemic.

Domestic Military Operations and the Coronavirus Pandemic

While the U.S. military is tasked with homeland defense and security, in this article Mark Nevitt highlights on the military’s role domestically to provide aid and support during the COVID-19 pandemic. The U.S. military is currently engaged in the largest domestic operation in American history.

The article evaluates the responses of different branches of the military and argues that the current public health crisis could be an opportunity to reevaluate the governance of domestic military operations. Nevitt addresses the emergency authorities relied on to address the virus, what governs the military’s role to enforce laws, and the military as a provider of emergency aid and relief at the state and local levels.

Good Health and Good Privacy Go Hand-in-Hand

Without a vaccine, writes Jennifer Daskal, the United States and other countries are struggling with different tools to stem COVID-19. A critically important one is health surveillance. Previous crises, such as 9/11, also led to restrictions—but often secret—on civil liberties. A pandemic’s surveillance response has a different goal: to educate and inform. Health surveillance provides officials and the public with valuable information on rising hotspots, when to test after exposure, and monitoring compliance with quarantine orders.

Daskal adds to this topical debate by outlining various types of surveillance schemes and associated technology—public or private, universal or targeted, mandated or consent-based—as well as the U.S. legal and policy considerations that each system will face. Professor Daskal argues that, despite the challenges, good health and good privacy can and should go hand in hand.

From Shortages to Stockpiles: How the Defense Production Act Can Be Used to Save Lives, Make America the Global Arsenal of Public Health, and Address the Security Challenges Ahead

The Hon. James E. Baker writes that Defense Production Act (DPA) was enacted to provide the federal government with the authority to systematically mobilize the industrial capacity of the nation to address national security emergencies. While it has been primarily used to prioritize DoD contracts and to incentivize the production of goods for which there is otherwise too small a market, it may prove to be useful in combatting the effects of COVID-19.

If the DPA were to be used to its fullest extent, it may become an important authority for producing a COVID-19 vaccine at scale; for constructing a long-term, secure, and independent medical supply chain; and stimulating the economy by making the U.S. a global arsenal of public health.

In his examination of the DPA, Baker outlines the ways it has been used both during and before the pandemic, considers real and perceived concerns over its potential use, and highlights issues that should be addressed as soon as possible. He further provides three lessons that can be learned from the DPA’s non-use and suggests methods to ensure the adequate preparation for challenges yet to come.

Access to Public Records and the Role of the News Media in Providing Information About COVID-19

The public’s reliance on journalists and news media to stay informed is critical during a public health crisis. In their article, Adam Marshall and Gunita Singh survey and analyze how public access to government records and meetings has been impacted by the pandemic while also focusing on the key role the new media plays in informing the public about COVID-19.

Marshall and Singh examine how access to public records has been limited at the federal, state, and local levels through restrictions on the Freedom of Information Act, actions taken by the Federal Bureau of Investigation and the Department of State, and local governments which have suspended access to information. The article also focuses on how the news media has navigated its role in disseminating information during the pandemic despite various roadblocks which limits its access.

The Failing Federation: Why Canada Is Ineffective at COVID-19

In exploring how Canada’s Constitution has affected its response to COVID-19, Amir Attaran explains how the legal and political contours of Canadian federalism have become a brake on the country’s response to the pandemic. Unlike what Canadians may believe, the black letter law of their Constitution is not the cause of the problem, it is the federalism and the struggles between the federal government and provinces that has caused issues.

Worries about inflaming provinces and secession coupled with a federal government that only rarely seeks to assert its full constitutional authority has led to an ineffective response that is arguably the greatest cause of lives lost during the pandemic.

The problem is not the constitution, but rather the self-neutering political disinclination of the federal government to act. Attaran therefore identifies reforms that could be put into place and highlights Australia, Germany, and Switzerland as models for consideration.