American Journal of Law & Medicine

Planning for pandemic: a new model for governing public health emergencies.


Imagine the following scenario:

The Centers for Disease Control confirms the appearance of a heretofore-unknown virus. It appears highly contagious since it is spreading easily between human beings. At this initial stage, the largest cohort of victims is youth in their late teens.

There is no geographic locus of the disease or single identifiable index case from which the virus's origin can be determined. The disease is independently prevalent in many geographic areas, particularly among those living in the inner cities of major metropolitan areas in the United States and in some of the densely populated immigrant enclaves in European cities.

At this point, the mortality is uncertain although in its early phase it is at least as deadly as a seasonal flu. It is the end of May: young people are dreading final exams, anticipating their high school and college graduations, and looking forward to the many end of the year celebrations. The weather is getting warmer, and the public pools are about to open. Despite the hot weather, the prevalence of the disease is not significantly waning.

Americans are nervous. They want answers. They expect their government to protect them.

It does not take much imagination to recognize that a contagious pandemic, (1) whether arising naturally or as the consequence of a bioterrorist attack, challenges the constitutional protections that we expect in normal times. It takes a great deal of imagination, however, to envision all the scenarios and imponderables that may arise during an extended threat of a highly contagious, potentially deadly disease. Moreover, it is beyond our imaginative capacity to predict all the possible human actions, reactions, and interactions that may occur as a crisis unfolds. While we can model different emergency situations and contingency responses, we must also recognize our limitations. (2) This lesson was dramatically illustrated when overreliance on models that failed to account for human panic reactions led to the financial meltdown of 2008. (3)

The opening scenario above highlights not only the pervasive uncertainty of a pandemic threat but also the competing human interests that confound official decision-making. Americans expect their government (4) to protect their general welfare, health, and safety, but they are deeply suspicious of government actions that disrupt their daily routines. Sudden or major changes rather than incremental action with marginal impact instinctively incline majorities towards opposing change. (5) Commitments to equal opportunity and non-discrimination will often weaken when the protections for oneself and family can only be achieved by disparately disadvantaging a minority population. (6) Even as citizens press public officials for information, they distrust the government's ability to be honest and transparent. Thus they are likely to greet government recommendations or directives with skepticism, especially if compliance entails risk of new personal sacrifice. (7)

Government officials face equally vexing questions in the absence of information. Is the crisis sufficiently threatening to necessitate action that in normal times would be legally impermissible? Should the government act uniformly to protect an entire community or act selectively even though it will impact the rights and interests of individuals and groups differently? Is the marginal protection of the community's wellbeing achieved by the derogation of individuals' liberty too high a price to pay? (8) Since the terrorist attacks on 9/11 policymakers, scholars, and citizens have struggled with the question of whether our government can respond to a serious national threat of unknown dimensions within our constitutional framework. Put another way, the question we confront in the twenty-first century United States is whether we can preserve constitutionalism during a national emergency when protection of national health and security clashes with respect for human rights. (9)

The public health crisis presented above offers an instructive scenario for evaluating the legal framework in which an executive invokes emergency power. (10) In particular, the public health context highlights the two decisional components of the government's crisis response. The first is whether the threat merits a declaration of a state of emergency. This should be a law-based determination announcing that the threat to the public's health or safety is sufficiently dangerous to warrant exercise of emergency powers that in normal times would be legally impermissible. The powers at issue are those that derogate an individual's constitutionally protected rights or liberties. (11) The second decision concerns which emergency powers are required to effectively contain or mitigate the threat. These two decisions are often conflated when the existence of the emergency is cited as the justification for the government's extraordinary measures. In this essay, I argue that these decisions should be treated as two distinct considerations, each of which requires independent justification.

In the opening scenario, the declaration of the emergency may initially appear to be a "no brainer" until the consequences are considered. Most especially, where the declaration automatically triggers the availability and is accompanied by the exercise of power from a preauthorized "toolbox" of extraordinary powers, persons subject to its dictates are likely to question whether the desire for power drives the declaration decision. (12) An executive who justifies his action using the generic rhetoric of the authorizing statute provides little assurance that individuals' sacrifice is necessary. The public is left questioning whether the government's order was motivated more by political, economic, or efficiency considerations than by concerns for their health and safety. Public protest or civil disobedience can further erode the public trust essential to secure compliance. In this revised scenario, government action not only exacerbates the threat to the public's health but also undermines the public's perception of its legitimacy. Even if there exists an initial consensus for government action, issues of distributive fairness of the resulting impact can raise serious challenges. (13)

This essay argues for a new model of emergency governance--an "emergency republic" paradigm--that tolerates the executive's exercise of extraordinary emergency powers (14) but that also preserves constitutionalism. (15) I refer to the model as a paradigm to stress the fact that it combines institutional innovations and new principles. The paradigm is anchored by an expert technocracy, a legislatively-established body operating independently of the executive branch and the bureaucracy, which creates a margin of separation between the decision to declare a state of emergency and the exercise of emergency powers, decisions that the constitution lodges in a single executive. (16) The technocracy is strategically positioned to provide real-time credible advice to the executive and information to the public on whether the threatened danger warrants an emergency declaration. It would replace a legislative delegation of emergency powers to the executive, which conflates the decision to declare an emergency with the decision to use emergency powers. The new paradigm seeks to enhance both the quality of the executive's momentous decisions as well as the public's perception of their legitimacy. The potential for aligning actual and perceived legitimacy should, in turn, promote public trust that is essential for reducing both the anxiety that prompts a panic reaction (17) as well as public distrust and defiance that undermines the effectiveness of the government's response efforts. (18) As John Barry, author of the monumental study of the 1918 deadliest pandemic in human history, observed: "Only by knowing the truth can imaginary horrors be transformed into concrete realities. And only then can people start to deal with those realities, and do so without panic." (19)

The three parts of this essay unpack the constitutional dimensions of the government's response to a threat to public health and safety. Part II diagnoses the problem faced by government leaders in responding to a novel threat to public health or safety. Since others have written thoughtful historical accounts of pandemics and plagues, this Part will only summarize the state of knowledge regarding constitutional, legal and political issues involved in the government's choice of responses. (20) Part III outlines the proposed prescription: the emergency republic paradigm anchored by the technocracy. The technocracy's principal mandate is to advise the executive on the critical decision nodes of whether to declare and when to terminate a state of emergency. I argue that as an expert, independent, and transparent public advisory body, the technocracy's contribution to the legitimacy of the government's decisions obviates the need for a "blank cheek" delegation of unchecked emergency powers. Part IV then identifies a constructive role for Congress in writing "fine print" to reassure the public and inhibit the executive's misuse or abuse of emergency authority. Some might consider this a check on the potential for malpractice created by the legislative silence on executive arrogation of emergency power. I prefer to think of the fine print as an antidote, or in some cases a prophylaxis, for the pressure to unnecessarily elevate protection of public good over respect for individual rights and needs. (21)

Should the nation face a serious contagion, the measure of legitimacy likely to prove most critical to the success of the government's response is whether the public is prepared to comply with officials' directives. This will largely depend upon the public's confidence in the judgment of public officials. Public trust can be secured by evidence that the government's decisions are driven by accurate information and respect for individuals' rights and dignity as well as for constitutional values. In the public's calculus of whether to comply with government directives, it will matter little to them whether at some earlier time the legislature arguably authorized government's orders. What will matter is whether the public understands and believes the government's justification for its actions in the moment of crisis and is thus prepared to comply. Planning for panic from this perspective enables us to learn from as well as to contribute to the debates over reconciling the conflict between protecting the nation's security and preserving individual liberties in our struggle against terrorism. (22)


As an illustration of how constitutional and other legal issues arise in a pandemic, consider the opening scenario. The public's demand for government action can neither enhance the capability of officials to discern the scientifically or medically unknowable nor enable them to control a disease that defies containment. The government's preparatory models, simulations, voluminous reports, and stockpiled resources will not dictate whether to cancel all or some graduation events or whether to restrict the activities for certain subpopulations. (23) Legislation enacted years earlier will not have identified the particular considerations material to the decision of whether to order quarantine nor have provided guidance for evaluating the human impact of such a decision. Officials must make consequential decisions with a promptness that is uncharacteristic of the democratic process. The chief executive does not have the expertise to evaluate the information proffered as fact. His health advisors are at odds with his political advisors, and his largest campaign donors are privately seeking government concessions to avoid financial loss. He is experiencing what Bruce Ackerman refers to as the "politics of fear" when confronting "imponderables." (24) Well-informed critics, political opponents, and demagogues, as well as countless "news" sources, are creating a cacophony of conflicting information, including a chorus of misinformation. To be effective, government intervention will need public understanding and cooperation; but the information void is creating confusion, fear, and distrust.

Crises create what Uriel Rosenthal and Alexander Kouzmin call "un-ness," which is "manifested as an unpleasantness in unexpected circumstances, representing unscheduled events, unprecedented in their implications and almost unmanageable, by definition, [which] renders crisis situations cognitively complex." (25) The "un-ness" inherent in crises creates several significant challenges for the government's response to a pandemic. (26) Notably, it has also burdened the government with a sordid history of marginalizing minority populations, a manipulable scientific uncertainty, and a prevailing distrust of political leaders and government. John M. Barry observes that "An infection is an act of violence; it is an invasion, a rape, and the body reacts violently." (27) The problem for law is that while the disease is the invader, the victims of the disease are often considered the "enemy." Since we cannot contain the biological agents, we restrain the human host, coerce the individual suspected of disease exposure to submit to an invasive examination, require populations to be vaccinated, or pry into the personal life of a disease carrier in the name of protecting the public. The history of government response to serious threats of disease has frequently included narratives about majorities marginalizing minority populations and government derogating the rights and destroying the property of the marginalized populations. (28) They are stories that rank among this nation's greatest embarrassments, revealing government decisions more responsive to the xenophobia, racism, and class bias of the larger population than to the needs of victims of disease. (29)

While many relegate these accounts to historical lessons, our society may not have changed as much as we would like to think. We have yet to recognize that microbes are among the "most egalitarian of living organisms, they cross all national boundaries and every social class, attacking without prejudice." (30) Too many of us still fault and shun the individual who suffers from a dreaded disease. (31) Only the deaf will not hear echoes of this history in recent disease scares and political immigration debates. During the 2003 Severe Acute Respiratory Syndrome (SARS) epidemic, which was widely prevalent in China and Canada but not in the United States, New York's Chinatown experienced "a tremendous drop in business and tourism" as well as "heightened anxiety and fear of stigmatization." (32) News sources reported rumors that Chinatown housed illegal immigrants possibly infected with the disease. Although no case of SARS was ever reported in that neighborhood, those who suffered the effects of the fear, such as small businesses owners forced to close, may never recover. Similarly, opponents of immigration reform frequently seize upon an outbreak of (or even the potential for) disease to argue for restriction of foreigners to the United States. (33) Some barely conceal their racial, ethnic or class biases. At the turn of the twentieth century, they challenged the entry of Eastern European Jews; (34) at its close, they opposed visas for Africans (and others) with AIDS; (35) in the first decade of this century, they raised the specter of Mexicans bringing the 2009 H1N1 influenza (swine flu) epidemic to the United States. (36)

Recent events have also demonstrated that many Americans still ascribe to "guilt by association" or blame the proverbial "other." (37) The post-9/11 imprisonment of thousands of men of Middle Eastern descent, none of whom were ever charged with a terrorism-related crime, (38) the pictures of those left behind as New Orleans flooded, (39) and current anti-Islam phobia (40) provide hints of public reaction to a highly contagious, life-threatening pandemic of unknown origin. During the 2008 presidential campaign, vice presidential candidate Sarah Palin continuously questioned whether individuals who threaten America's security should receive constitutional protections. Her standard applause line accused her opponent of being more interested in reading suspected terrorists their rights than protecting the country. (41)

Our xenophobia has yet to be tempered by scientific progress. Theoretically scientific knowledge, which is derived from empirical observations, established facts, and research-based hypotheses, should enlighten policy makers so that their decisions follow logically from an unbiased evaluation of data. As the challenges to government officials portrayed in the opening scenario illustrate, however, we have no such assurances. The decisions confronting a public official regarding prevention, containment, mitigation, or treatment of a highly contagious disease in an unfolding emergency of unknown proportions are fraught with political consequences. In their book Bending Science, Thomas McGarity and Wendy Wagner demonstrate how the process of translating science into contested areas of public policy has numerous points for serious contamination by advocates with different incentives and pressures. They write, "the susceptibility of policy-relevant science to outside pressures reflects the simple but ugly reality that even scientific knowledge can become contaminated by ideology and money." (42)

The suspicion of scientific accuracy in the hands of policy makers is a part of the larger distrust of government. The problem is particularly acute when government officials request or order individuals to sacrifice. In a 2001 government simulation of a bioterrorist smallpox attack, known as "Dark Winter," an attempt at mass quarantine utterly failed. (43) Senator Sam Nunn, who had played the role of president, observed, "[t]here is no force on earth strong enough to get 250 million Americans to do something that they do not believe is in their own best interests and that of their families." (44) Former Vice President Dick Cheney maintained that preemptive government measures are justifiable if there is "a one percent chance of the unimaginable coming due." (45) Regarding the danger posed by a threat, he claimed, "It's not about our analysis ... it's about our response." (46) George Annas points out, however, "exaggerated risks produce extreme responses that themselves produce unintended consequences." (47) He claims that overreaction or "over caution" is causing the United States to suffer from the two interrelated epidemics of fear and incompetence. (48)

With neither history nor recent events providing assurance of an optimal government response, the next pandemic could pose three notable challenges to the rule of law should the executive declare a state of emergency. (49) The first comes from the "fear mongering" just discussed. Government officials promote public fear to justify obtaining or exercising extraordinary power. (50) Since 9/11, the war metaphor has proven an effective tactic in winning support for the delegation of broad emergency powers or minimizing opposition to the executive's arrogation of such powers. (51) Political strategies developed in the "war on terrorism" are migrating into the preparations for combating disease outbreaks. (52) The Model State Emergency Health Powers Act (MSEHPA) was rapidly drafted within two months of the 9/11 attacks and the mailings of anthrax that followed soon afterwards. (53) It gives "public health officials" sweeping coercive powers and immunizes them from liability if their acts abuse individuals' rights and cause injury. Professor Lawrence Gostin, a principal author of the Act, argued that it was time to "rethink ethical values and reform antiquated legislation," and he chided opponents' "misplaced liberal emphasis on the primacy of rights." (54) In response, leading critic Professor George Annas argued, "Sacrificing human rights for safety under the rubric of national security is almost never necessary and almost always counterproductive in a free society." (55) Few lawmakers, however, are interested in engaging in a theoretical or hypothetical debate about rights in a crisis. (56) They are more interested in addressing fears than defending rights. (57) The specter of a spreading contagion bringing economic ruin and threatening national security is too powerful to resist the clamor for action. (58) Passing legislation enables them to claim credit for crisis planning. The present benefit of appearing to act decisively outweighs any danger that such action may prove unpopular or counterproductive in an actual future crisis, since they undoubtedly hope that there will be no occasion for invoking the act, or at least not during their tenure in office. Executives generally have no such concerns about receiving delegated powers to act unilaterally in a crisis. Rather they welcome the "cover" of legislation that leaves them unconstrained in determining whether to use extraordinary powers in response to an emergency.

The second challenge is what I call a "pandemic paradox," which is created when an anxious public expects government to develop optimal emergency responses while suspecting the government's motivation and capability to do so. Particularly in the early stages of a pandemic when facts are the fewest, the public may be most frightened and most likely to demand answers and action. Government measures that are ill-considered or ill-advised can, rather than providing protection, endanger the public's health and safety as well as the rule of law.

The third challenge to the rule of law rests in the chasm between law and law enforcement. Government may issue emergency orders requiring involuntary behavior changes, but it lacks the capability to coerce compliance if there is widespread public resistance. In a crisis, police forces, even if augmented by the military, may prove incapable of enforcing large-scale orders, such as multiple quarantines that extend over a wide geographic area or a nationwide mandatory vaccination order. (59) If the nation faces a serious labor shortage because healthy employees afraid of getting sick refuse to work, an order that they report to their place of employment would be an enforcement nightmare without substantial "voluntary" cooperation. Widespread disobedience of government orders breeds contempt for law and suspicion of public authorities. (60) For the government's response to be effective, those required to sacrifice must believe that the government's order is necessary and fair.

The Constitution's silence on the government's authority during a national emergency does not mean that the President must await congressional permission before acting. (61) Presidents Thomas Jefferson and James Madison acknowledged that government was not impotent to protect the national interest in the absence of a legislative authorization. (62) When President Lincoln suspended the writ of habeas corpus without congressional approval, he famously asked, "are all the laws but one to go unexecuted, and the government itself go to pieces, lest that one be violated?" (63) It is also true that nothing in the Constitution prevents the legislature from delegating or restricting the executive's exercise of emergency powers. What remains debatable is whether a congressional delegation is either instrumentally or constitutionally beneficial for the management of pandemic crises. (64)

This summary suggests that not only has our society yet to internalize the lessons of history, but also that we continue to distrust government's capability to respond fairly and effectively to a pandemic emergency. Science has improved our understanding and treatment of diseases, but it has also enabled creation of drug resistant and deadlier strains of dreaded contagions. Our hope that medical researchers will discover new cures is tempered by our fear that terrorists will create new biological weapons. Moreover, our social progress has not kept pace with the scientific developments. Prejudice and discrimination persists as too many Americans look for some "other" to blame for the threat of disease, and fear mongering secures political gain. We are neither reliant upon a single source of news nor hampered by an absence of information, but the surfeit of information sources leave us just as skeptical and confused about the accuracy of conflicting claims. History provides few assurances that government merits our trust, while recent actions by government officials based upon claims of emergency and national security have further eroded our trust. Nevertheless, as the opening scenario demonstrates, Americans can only look to government for the leadership required to mitigate the effects of a pandemic and to prevent panic. Only government has the capacity to protect both the public's health and individuals' rights. Thus, I now turn to a proposal for a new paradigm for pandemic response that harnesses both the advances of science and the lessons of history.


As of this writing, the "Great Panic" of the twenty-first century refers to the financial crisis of 2008-09. …

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