ASSESSING LEGAL RESPONSES TO COVID-19 • AUGUST 2020 • WWW. COVID19POLICYPLAYBOOK.ORG • 1
Summary of Findings and
Recommendations
Introduction
COVID-19 is the new virus this country has been preparing to take
on for decades – and has, so far, failed miserably to stop. While peer
countries have managed to get it under control, the United States
faces rising cases and deaths. This is not a failure of resources:
although decades of cutting health agency budgets is a big part
of our problem, we remain a country rich in money and expertise.
This is not a failure of individual courage; from health care workers
through transport workers to people who produce and deliver food
supplies, essential workers have shown up and done their jobs at
signicant personal risk. This has been, rst and foremost, a failure
of leadership and the implementation of an effective response.
This collection of 36 expert assessments shows that the COVID-19
failure is, in important ways, also a legal failure:
• Decades of pandemic preparation focused too much on
plans and laws on paper, and ignored the devastating effects
of budget cuts and political interference on the operational
readiness of our local, state and national health agencies
• Legal responses have failed to prevent racial and economic
disparities in the pandemic’s toll, and in some cases has
aggravated them – COVID-19 has highlighted too many empty
promises of equal justice under law
• Ample legal authority has not been properly used in practice
— we’ve had a massive failure of executive leadership and
implementation at the top and in many states and cities.
The more important nding of this Report is that better use of
legal tools can help turn things around right now. This Report offers
more than 100 specic legal recommendations for the president
and Congress, governors and state legislatures, and mayors and
city councilors across the country. These recommendations
encompass nearly all aspects of the response, and are organized
into six priority areas: Using Government Powers to Control the
Pandemic; Fullling Governmental Responsibilities in a Federal
System; Financing and Delivering Health Care; Assuring Access to
Medicines and Medical Supplies; Protecting Workers and Families;
and Taking on Disparities and Protecting Equal Rights.
The ndings and recommendations are those of each individual
author, and they are sweeping. Experts in this Report call for
fundamental structure changes to reduce the pernicious inuence
of politics on scientic decision making — like establishing the
U.S. Centers for Disease Control and Prevention (CDC) as an
independent agency along the lines of the Federal Reserve. They
suggest increasing the resilience of state economies by getting
rid of rules that require states to balance their budgets even in
crisis years. They recommend aggressive expansion of health care
access through Medicaid and the Affordable Care Act, along with
the removal of crucial barriers to care, like current immigration
law and enforcement. They criticize multiple government failures
in securing basic medical supplies and tests, and recommend a
comprehensive reboot of federal coordination and procurement led
by career government staff and free of petty political interference.
They recognize the health risks and economic stress experienced
by workers and families, and call for both continued economic-
support legislation and better enforcement of occupational
safety and health rules. Every author has found ways in which
COVID-19 law has failed to address racial and economic disparities
or made them worse. Authors nd that states and cities have
moved schooling online without removing legal barriers to – let
alone ensuring – universal access to broadband internet; they
have depended on low-wage workers in many sectors to keep the
economy and vital services working, but have taken too little action
to assure safe workplaces, provide paid sick leave, or recognize
higher risk with higher pay; they have issued plans for allocating
scarce medical services that violate laws protecting people with
disabilities.
Each thematic section of the Report begins with a detailed list
of recommendations, followed by the chapters laying out the
underlying assessment and rationale. These chapters ask:
• Was the law (including both the law that existed prior to the
pandemic and laws that took effect during the pandemic) a
barrier or facilitator of the response in this topic area?
• What appear to be the major legal, structural, and
implementation factors in effectiveness or ineffectiveness of
legal and policy developments?
• Did the law or policy exacerbate racial, or socioeconomic or
other pre-existing disparities?
• Was the law applied in a manner consistent with ethical values
and constitutional norms?
This Summary, written by the editors, pulls out key high-
level themes and aims to capture the broad thrust of the
recommendations.
Scott Burris, JD, Temple University Beasley School of Law; Sarah de Guia, JD, ChangeLab Solutions; Lance
Gable, JD, MPH, Wayne State University Law School; Donna Levin, JD, Network for Public Health Law; Wendy E.
Parmet, JD, Northeastern University School of Law; Nicolas P. Terry, LLM, Indiana University Robert H. McKinney
School of Law
Embargoed until August 18, 2020 at 1:00 a.m. ET