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Book Chapter

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Public Health Law Watch




The COVID-19 pandemic has revealed the precariousness of federal public health institutions in the United States, and how disastrously things can go when those institutions are undermined by political forces. Such institutions can be disbanded, underfunded, populated with incompetent political hacks, manipulated, or sidelined. As a field, public health in particular needs some political space, given that it requires deep scientific expertise and needs to communicate to the public clearly, reliably, and with authority to engender trust. Key public health agencies, such as the Centers for Disease Control and Prevention (CDC) in particular, should be buttressed against future political encroachment, using legal mechanisms from administrative law, which are tried and true in other domains of governance. Models include the Federal Deposit Insurance Commission (FDIC) (created in 1933), the Federal Reserve System (1913), the Federal Trade Commission (FTC) (1914), and the National Labor Relations Board (NLRB) (1935). Key features of these agencies include having multi-member boards of qualified experts to lead them, enjoying independence from the president (not able to be fired without cause), and having statutory budgetary authority by not requiring congressional appropriation or allowing executive reallocation. We discuss the ways in which independence can increase deference accorded by the courts, as well as the risk that it may reduce political accountability.

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