Stringent social-distancing rules and other restrictions aimed at addressing the Covid-19 pandemic have brought a large part of the world to a screeching halt and dramatically changed current daily life for millions of people around the globe. In the U.S. alone, the economic toll was underscored this week when the U.S. Labor Department reported that another 6.6 million people filed for unemployment last week, bringing the total number of job losses to more than 16 million over the last month. 

How long can a nation of 327 million people endure with work and schools closed, lost jobs, and people still dying from a pandemic with no proven treatment? And, as the number of new infections starts to level off, will Americans be willing to continue to adhere to such strict measures?  

In a perspective published in the April 9, 2020, issue of the New England Journal of Medicine, David Studdert, professor in both Stanford’s law and medical schools, and Mark Hall, professor of law at Wake Forest Law School, analyze the tension between disease control priorities and basic social and economic freedoms. 

“Resistance to drastic disease-control measures is already evident. Rising infection rates and mortality, coupled with scientific uncertainty about Covid-19, should keep resentment at bay — for a while. But the status quo isn’t sustainable for months on end; public unrest will eventually become too great,” writes Studdert and Hall.

In the perspective, titled “Disease Control, Civil Liberties, and Mass Testing — Calibrating Restrictions during the Covid-19 Pandemic,” the authors advocate for a graduated path back to normal that is guided by a population-wide program of disease testing and surveillance.

Read the Perspective

As we watch President Trump tell the states they have to do more to find their own personal protective equipment for their health-care workers, governors lash back with demands for a national leader who will unlock the emergency powers of the federal government.

The response to the COVID-19 pandemic has exposed major weaknesses in the federalist system of public health governance, which divides powers among the federal, state and local governments, argues SHP’s Michelle Mello in this New England Journal of Medicine commentary.

The coronavirus, she writes, “is exactly the type of infectious disease for which federal public health powers and emergencies were conceived: it is highly transmissible, crosses borders efficiently, and threatens our national infrastructure and economy.”

“Strong, decisive national action is therefore imperative,” writes Mello, a professor of medicine and a professor of law, and Rebecca L. Haffajee, a policy researcher at the RAND Corporation. “Yet the federal response has been alarmingly slow to develop, fostering confusion about the nature of the virus and necessary steps to address it.”

The authors warn this “lack of interjurisdictional coordination has and will cost lives.”

Though states must respect constitutionally protected individual rights — such as due process, equal protection and freedom of travel and association — the Constitution puts primary responsibility for public health with the states, cities and counties. It gives them the right to exercise broad police powers to protect their citizens’ health during ordinary times.

In extraordinary times — like the one we’re experiencing now — states and the federal government can activate emergency powers to expand their abilities to act swiftly and protect human life and health. All 50 states and dozens of localities and the federal government have declared emergencies.

“The resulting executive powers are sweeping: they can range from halting business operations, to restricting freedom of movement, to limiting civil rights and liberties, to commandeering property,” Mello and Haffajee write in the NEJM Perspective.

This emergency legal framework has led to too few checks-and-balances on poor decisions—historically, in the direction of being overly aggressive, write the authors. They note a good example is when New Jersey’s governor ordered a nurse returning from Sierra Leone during the 2014 Ebola outbreak into quarantine, contrary to Centers for Disease Control and Prevention guidelines.

Too Little Too Late? 

“Today, we find ourselves in the opposite situation: the federal government has done too little,” the authors write. “Perhaps because of misleading early statements from federal officials about the gravity of the COVID-19 threat, public sentiment has weighed against taking steps that would impose hardships on families and businesses.”

The tumbling stock market and unprecedented 10 million unemployment claims last month also have created further pressure by the federal government to project a sense of calm.

“The resulting laconic federal response has meant that a precious opportunity to contain COVID-19 through swift, unified national action has been lost — a scenario that mirrors what occurred in Italy,” they write.

So the states had to pick up where the federal government fell short, the authors note. Many jurisdictions issued stay-at-home orders; others did not. As of March 31, more than a dozen governors had yet to issue statewide stay-at-home orders and eight had only ordered partial measures. Yet many jurisdictions turn a blind eye, they note, to noncompliance with social-distancing recommendations issued by the CDC, as evidenced by crowded beaches and children congregating in public parks.

“This is the dark side of federalism: it encourages a patchwork response to epidemics,” the authors write.

“A federal takeover of all public health orders would be out of step with our federalist structure,” the authors state, but there remain three good options:

• “The White House must reverse its current trajectory toward prematurely weakening existing federal measures and the resolve of governors who are enforcing stay-at-home orders and school closures.” Trump said last week he wanted the United States “opened up and raring to go by Easter.” A few days later, he heeded the call of medical experts and extended social-distancing guidelines until the end of April, but public health experts believe the crisis will likely be with us longer.
• Congress should “use its spending power to further encourage states to follow a uniform playbook for community mitigation that includes measures for effective enforcement of public health orders.” It could threaten to withhold some federal funds from states that do not comply.
• “Congress could leverage its interstate-commerce powers to regular economic activities that affect the interstate spread” of COVID-19, such as restricting large businesses from traveling and operating across state lines in ways that expose workers to risk.

The White House could also make further use of the Defense Production Act (DPA) to direct private companies to produce badly needed ventilators and personal protective equipment for health-care workers, the authors write. Trump has ordered General Motors to manufacture ventilators and the $2 trillion stimulus package includes $1 billion for DPA projects.                                                                     

“Learning is difficult in the midst of an emergency, but one lesson from the COVID-19 epidemic is already clear: when epidemiologists warn that a pathogen has pandemic potential, the time to fly the flag of local freedom is over,” the authors conclude. “Yet national leadership in epidemic response works only if it is evidence-based. It is critical that the U.S. response to COVID-19 going forward be not only national, but rational.”

The signing of President Trump’s Phase One trade deal with China has rekindled speculations about the future of the world’s second-largest economy. Many analysts have cited trade frictions between the United States and China as a driving force behind the slowdown the Chinese economy has experienced in recent years. It is not a tariff crossfire, however, that explains the slowdown, argues Nicholas Lardy, a leading expert on the Chinese economy.

Lardy, the Anthony M. Solomon Senior Fellow at the Peterson Institute for International Economics, offered a different view on China’s slowing economy in a lecture presented at the China Program’s 2020 winter/spring colloquia series, which examines the past, present, and future of the PRC at 70. Using data and trends from the last forty years of China’s economic growth, Lardy presented the case that the slowing trend in the Chinese economy is directly related to changes in how the government lends credit and to what he terms “resource misallocation.”

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Coupled with this is the observation that Xi Jinping’s government has actively sought to increase the size and scope of state-owned enterprises. Lardy’s research indicates that the assets of state-owned, non-financial companies in China are growing twice as fast as the overall GDP, a situation he feels is only possible if state companies are being allocated a disproportional share of credit and loans. Lardy shows that pre-2012, funding to private companies was at $3.6 trillion USD, but by 2016 it dropped to a mere $600 billion.

Taking these factors together, Lardy argues that the economic slowdown will continue if the Chinese government continues to aggressively emphasize party control and the importance of the state sector over private companies. While reporting on trade deals may dominate the media, “We will increasingly see friction not on tariffs, but on technology transfer and issues of technology,” he says. “The key thing to watch is whether or not Xi Jinping gets serious about reforming state-owned enterprises and having a financial system that allocates credit more efficiently.”

Listen to highlights from Lardy’s presentation above, also available on our SoundCloud channel. A transcript is available