More than 6.6 million Covid-19 deaths have been recorded worldwide, with over one million of those in the United States, and the pandemic death toll continues to climb by approximately 335 deaths each day in the U.S. The pandemic has disrupted families, schools, the health care system, employers, and the supply chain. And the hardest hit continues to be the most vulnerable populations. It unlikely that the full extent of the physical, mental, social, and economic consequences directly or indirectly caused by the Covid-19 public health emergency will be understood for decades. On September 18, 2022, we heard from President Biden: “the pandemic is over.” The Covid-19 pandemic, however, is morphing into an endemic while outbreaks of other contagious diseases, like respiratory syncytial virus (RSV), influenza, Mpox and polio, have dominated the news cycles and received their own public health emergency designations. On January 30, 2023, the World Health Organization's International Health Regulations Emergency Committee voted to renew the Public Health Emergency of International Concern for now. On that same day, however, the White House announced that the Covid-19 public health emergency status in the U.S. is expected to end on May 11, 2023. The vast majority of states have already terminated their public health emergency status, with the remaining few likely to do so shortly. Establishing the conditions under which declarations, continuations, and terminations of public health emergencies ought to be made is particularly important given the implications such decisions have and the competing interests that underlie them. Declarations of public health emergencies are what noted philosopher and scholar J.L. Austin called performative utterances, which are statements that have the effect to act or cause an action, or change social reality, such as “time of death 4:12 pm,” rather than descriptive phrases that are simply true or false statements, like “the sky is blue.” Declaring public health emergencies are critical performative utterances as emergency powers provide a wide range of resources from providing grants and funding to deploying the military, waiving, or modifying regulations and requirements, curtailing certain civil liberties and shuttering businesses. When invoked, many times executive emergency powers negate the need for legislative authorization during the span of the emergency. As we saw in March 2020, public health emergency declaration—described in detail in this article—are performative utterances that changed our world. Such declarations necessarily shift the balance of power toward the executive action. Terminating public health emergencies, however, are also critical performative utterances. And if we presume that ordinary laws, regulations, and procedures appropriately balance government power with individual rights, then our default should be a clear understanding of when we can return to those laws, regulations, and procedures. Currently, the U.S. laws fail to provide consistency or clear guidance on procedures or conditions public health emergency declarations and terminations. Because the stakes are so high—and affect the fundamental structure of our government—we should be intentional in developing procedures and establishing criteria for declaring, continuing, and terminating public health emergencies. Instead of simply accepting lengthy unfettered executive public health emergency powers or enacting strict legislative limitations on executive authority that could hinder an effective public health response, or create chaos in our health care systems and with government operations, a diverse, multi-disciplinary team of scholars and stakeholders should examine the existing web of public health emergency legislation and provide input and guidance on felicity conditions for declaring, continuing and terminating specific public health emergencies that build in relevant, appropriate checks and balances.
Date: | 2023-02-02 |
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Authors: | Coughlin CN, Iltis AS. |
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Ref: | SSRN |
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