Emergency Public Health Laws: Lots of Authority, What Is the Plan?
Why was perhaps the greatest challenge so far of the 21st century, the SARS-CoV-2 pandemic, handled so that millions of children have suffered severe educational loss and mental health issues? Why were long-term economic outcomes of protracted lockdowns ignored? Why did our government not seek a consensus from both governmental and outside “experts”? Why was there uniformity of government opinion along with “experts” supported by government grants? Who had the legal authority to direct our response and did that person have the obligation to seek multiple points of view to determine the best course of action?
The Public Health Service Act of 1944 provides legal authority for the Secretary of the Department of Health and Human Services (HHS) to, “lead all public health and medical response to health emergencies”. The law allows but does NOT demand for consultants to be appointed outside the civil service and does not admonish the Secretary to obtain a carefully debated course of action (Ref.1). States possess “police power” and have the authority, sanctioned by the Supreme Court in 1905, Jacobson v. Massachusetts, forcing Jacobson to receive Smallpox vaccination, to force citizens to comply with orders in the name of public health (Ref.2).
Unfortunately, the bureaucracy proved inflexible, unable to even consider the possible validity of differing opinions and was susceptible to political interference. The concept that every infectious agent has its own unique age groups of vulnerability was not emphasized. The CDC promoted protracted lockdowns while ignoring the many negative effects on children and the economy. This despite the opinion of highly qualified individuals that the spread of the virus could no longer be contained and efforts should be concentrated on protecting the vulnerable (Ref.3). The CDC and FDA have come under strong criticism for their various suggestions on how to deal with the pandemic, i.e., six foot distancing, school closures, and approval process for vaccines especially for young children (Ref.4,5,6).
Congress should update the Public Health Service Act to include having the Secretary when considering invoking the law, convene an open forum for vigorous discussion for the best possible course of action. Participants would include outside of government practicing physicians, epidemiologists, economists, educators, and governmental public health leaders. It may take days to reach consensus, but with open debate will come a better plan of action along with greater public acceptance. The group think dominant within government, must be avoided if we as a nation are to successfully deal with major public health threats in the future.
- What is PHSA (Public Health Service Act) and Its Amendments? Covetus, September 11, 2020, available at: https://www.covetus.com/blog/what-is-phsa-public-health-service-act-and-its-amendments (accessed July 6, 2022)
- David B. Rivkin Jr. and Charles Stimson, A Constitutional Guide to Emergency Powers, WSJ, March 19, 2020, available at: https://www.wsj.com/articles/a-constitutional-guide-to-emergency-powers-11584659429 (accessed July 6, 2022)
- Dr. Jay Bhattacharya, Dr. Sunetra Gupta & Dr. Martin Kulldorff, Great Barrington Declaration, October 5, 2020, available at: www.gbdeclaration.org (accessed October 10, 2020)
- Saul Zimet, Even the New York Times Just Admitted the CDC May Be Broken Beyond Repair, FEE Stories, July 15, 2021, available at: https://fee.org/articles/even-the-new-york-times-just-admitted-the-cdc-may-be-broken-beyond-repair/ (accessed July 13, 2022)
- Post Editorial Board, The CDC’s continued screwups make it very hard to trust, New York Post, May 22, 2020, available at: https://nypost.com/2020/05/22/the-cdcs-continued-screwups-make-it-very-hard-to-trust/ (accessed July 14, 2022)
- Marty Makary, M.D., M.P.H., and Tracy Beth Hoeg, M. D., Ph.D., U.S. Public Health Agencies Aren’t Following the Science, Officials Say, Common Sense, July 14, 2022, available at: https://www.commonsense.news/p/us-public-health-agencies-arent-following?utm_medium=email&%3Butm_campaign=cta&%3Baction=share&utm (accessed July 14, 2022)
Si telum est factum, utendum est. If a weapon is made, it must therefore be used.
There has been a low-level anxiety about the possibility of an ultra-epidemic since the 1919 Flu. That inspired most states to create a Department of Health in the 1920’s. A hundred years later, these are bureaucracies with a mission in most states.
As in the response to the invention of thermonuclear weapons, the Government created laws that could be invoked at a heartbeat, and ruled unconstitutional if humanity lived long enough to go to court.
I was in on the writing of these rules in my state. The scenario envisioned an epidemic with 30-40% mortality, and a lot of the topics involved short-term and intermediate-term morgues and interment. A bad, bad epidemic.
We had a little epidemic with about 0.5% mortality. For complex but intuitively obvious reasons, every epidemic starts out looking bad, and appears less so as time goes by.
Si telum est factum, utendum est., said the people holding the loaded pistol, what the hell, looks like a riot to me. Let’s get those emergency laws on the road, even though we’re not moving hundreds of tons of corpses out of our cities. Social order’s not melted down. But we got these laws, and the television rule applies – if you see a gun on a television show,. it will be fired before the credits roll. Si telum est factum, utendum est. What’s the harm in that?
Si telum est factum, utendum est.
Who said that? Cicero?