Federalism in Pandemic Prevention and Response

An underfunded, uncoordinated patchwork of state-led interventions failed to protect the American people from the 2020 coronavirus pandemic and contributed to stark geographic, racial, ethnic, and socioeconomic disparities. In most cases, state, Tribal, and local governments are in the best position for on-the-ground implementation of community mitigation and medical countermeasures tailored to local conditions. But only the federal government has the inter-jurisdictional coordinating authority and deficit-spending ability necessary to support and harmonize public health activities and ensure equity during a nation-wide emergency. In 2020, the Trump administration failed to adopt clear guidelines for coordination among agencies and jurisdictions. Congress failed to provide adequate funding to ramp up federal, state, Tribal, and local public health infrastructure, to support the ability of businesses and households to comply with public health recommendations, and to protect disempowered workers and tenants. For the most part, the federal government left financially stressed, budget-constrained state governments to fend for themselves. In September 2020, the Centers for Disease Control and Prevention (CDC) took an important step to protect vulnerable renters by issuing an unprecedented nationwide eviction moratorium order, pushing the boundaries of the agency’s authority. Legal challenges to the federal moratorium were rejected by two federal district courts. The resulting judicial opinions could pave the way for a more expansive federal role in direct regulation of businesses and individuals, but questions about administrability and enforceability remain. In 2021 and beyond, federal regulatory and legislative reforms could put equitable and effective pandemic response on firmer footing or, alternatively, erode preparedness for future emergencies. This paper was prepared as part of the COVID-19 Policy Playbook: Legal Recommendations for a Safer, More Equitable Future, a comprehensive report published by Public Health Law Watch in partnership with the de Beaumont Foundation and the American Public Health Association.