Category Archives: Public Health

Special Issue: Law and the COVID-19 Pandemic

As the novel coronavirus known as COVID-19 erupted and swept the globe in late 2019 and early 2020, a full-blown pandemic quickly and significantly affected the United States. As the public health crisis worsened in the winter and spring of 2020, it soon became clear that our national security institutions and processes were being tested, sometimes in new and unique ways.

A few JNSLP stalwarts commiserated with me about some of the legal and policy issues early on, and by April 2020 we had conceived this Special Issue of the Journal, focused on COVID-19. As the weeks and months passed, it became every more clear that the pandemic was continuing to pose challenges to government performance and national and global economies.

As editor, I realized that it would require recruiting guest editors who could help me recruit authors and then mentor their completion and editing through to the kind of excellent publication that we always demand. Editor in Chief emeritus Steve Dycus and long-time board member Gene Fidell quickly stepped into the guest editor roles, and the result is a stunningly good collection of short articles surveying and detailing many of the most vexing legal and policy problems associated with the pandemic. Steve and Gene deserve enormous credit for their dedication to the Special Issue and for their characteristic excellence as editors.

The articles have been written in short order by internationally recognized subject matter experts who have experience in government, the courts, the cyber domain, public health, human rights, international organizations, domestic military policy and policing, journalism, and several other disciplines. Some of the articles take a granular look at aspects of the pandemic, while others widen the lens to look at such issues as leadership.

As we expected, the authors assign blame where blame is due, and ask about accountability mechanisms for those officials and institutions who dropped the pandemic ball. We also include a comparative piece that helpfully contrasts the effectiveness of Canadian and U.S. institutions in dealing with the pandemic.

The goal of the Special Issue is not to keep score or assign blame. Rather, we hope that the articles illuminate a vast range of legal and policy issues that COVID-19 has spawned. We know that local, state, national, and international leaders will be grappling with this pandemic for some time. We also know that lessons learned from our experience with COVID-19 will be instrumental in how we manage the next crisis – whether it is another pandemic, or something entirely different but equally challenging.

Nor does the Special Issue purport to be an exhaustive account of the national security implications of the pandemic. Many important topics are not represented here, and the authors of these articles are careful to emphasize that the analyses here do not represent the last word on covered topics.

The Special Issue groups its articles into categories. The first focuses on who is in charge. A second grouping examines pandemic responses from the perspectives of health, privacy, military, and emergency law. A third concerns information from the perspectives of transparency and journalism. A final section includes an important comparative and international law perspective on cybersecurity and the pandemic.

On behalf of JNSLP, I sincerely hope that readers enjoy and benefit from this fine collection of pandemic scholarship.

William C. Banks
October 2020

Leadership in a Time of Pandemic: Act Well the Given Part

The COVID-19 pandemic has presented unique questions and challenges, including what kind of leaders are necessary in this current crisis.

The Hon. James E. Baker’s article highlights the need for leaders during the pandemic and the principles that can apply to the both the legal and policy responses to this current public health crisis. In doing so he distinguishes the leadership necessary during a pandemic as opposed to other national security crises; focuses on three leadership tasks: Prepare, Act, and Lead and what those tasks mean during a pandemic; and identifies role models and their importance in modeling and encouraging qualities necessary for effective leadership during a pandemic.

As the pandemic endures, Baker writes about the qualities necessary to support sustained efforts to bring the end of the pandemic.

The Roles of the State and Federal Governments in a Pandemic

Emily Berman’s paper explores the ways in which existing law and policy envision distinct pandemic-response roles for the state and federal governments, and distinct powers to fulfill those roles. 

It examines the United States’ coronavirus response and argues that the federal government failed to bring the full range of its powers to bear—and indeed, that it continues to do so—in ways that have undermined the states’ ability to mount an effective response.  

Emergency Powers, Real and Imagined: How President Trump Used and Failed to Use Presidential Authority in the COVID-19 Crisis

Can a president abuse emergency powers by not using them? Elizabeth Goiten explains that President Trump has utilized aggressive rhetoric and claimed the powers of the president during an emergency are absolute. Yet he has been restrained to a fault when deploying emergency powers to address the COVID-19 national health crisis. His approach to emergency powers in regards to immigration and domestic quarantines reveals a tug-of-war between the inclination to assert sweeping power and the desire to avoid responsibility for the public health and economic consequences of the pandemic.

At every stage, our national response to COVID-19 has been hampered by a lack of available testing, testing equipment, personal protective equipment, ventilators, and other medical supplies; problems which President Trump could have attacked using legitimate legal authorities. While the use of emergency powers is discretionary by nature, President Trump may have illuminated a new abuse, the politically-motivated failure to deploy emergency powers in a genuine crisis. 

A Historical Review of the State Police Powers and Their Relevance to the COVID-19 Pandemic of 2020

In response to COVID-19, U.S. states and localities are exercising various health actions under their inherent police powers—often facing stiff resistance by the public and the courts.

Edward P. Richards outlines how states and localities enjoyed broad police powers over public health since the colonial period. The Supreme Court limited this authority only in cases of discrimination. Historically, courts deferred to local authorities or legislatures during health emergencies; the general public, in contrast, often demonstrated greater resistance. At times, this resulted in devastating outcomes, such as when public resistance to masks during the 1918-1919 flu pandemic caused a second wave and rise in deaths.

COVID-19, Richards argues, is unprecedented because both the public and, unusually, the courts are resisting local public health orders. Many judges today are substituting their own judgment for that of public officials, raising questions over the future of traditional police powers.