How can the US fix legal flaws exposed by COVID-19?

A security guard walks past a giant American flag hanging in Woodrow Wilson Plaza behind temporary metal fencing ahead of the 2020 Republican National Convention, in Washington, D.C., on August 21, 2020 amid the COVID-19 pandemic. AP photo by Graeme Sloan/Sipa USA

It isn’t a question of if, but when. That another pandemic will happen one day is a given, though what it will look like, how it will manifest itself and how deadly it will be we have yet to know.

A group of legal experts isn’t sitting around waiting to find out. They point to the COVID-19 pandemic, and its 180,000 U.S. deaths, rampant unemployment, and record-setting economic decline, as a legal failure as much as it is a lack of political leadership at all levels of government.

“Legal responses have failed to prevent racial and economic disparities in the pandemic’s toll, and in some cases has aggravated them,” 50 nationally recognized experts wrote in a recently released assessment published by the Center for Health Policy and Law at the Northeastern University School of Law and five other organizations.

Portrait of Wendy Parmet

Wendy Parmet is university distinguished professor in the School of Law, and director of the Center for Health Policy and Law at Northeastern. Photo by Mary Knox Merrill/Northeastern University

The biggest takeaway from the 268-page report was the “failure of the law,” says one of the authors, Wendy E. Parmet, director of the center and Matthews distinguished university professor of law.

“But it wasn’t because we don’t have the laws in place, it’s because the laws we have have not been used, or have been misused, not supported, or not implemented,” Parmet says. “In other words, we say that our public leaders have the legal tools that were needed to make things a lot better than they were, and they didn’t use the tools, in some cases, at all.”

Preparing for the next health crisis means acting now, but that doesn’t mean it’s too late to turn the current situation around, provided the law is used as intended, adds Parmet, who is also a professor of public policy and urban affairs.

“Law on paper is not enough. You can pass the best laws, the most perfect laws, the prettiest laws,” she says. “But if they’re not used wisely and appropriately, if leaders in public health agencies are not informed by the science, then that law is not going to work.”

Why did you focus on immigration?

I’ve been working in the area of immigration and health for 10 years. I first started thinking about immigration and access to health care when I was involved in some litigation in Massachusetts about giving lawfully present non-citizens access to health care.

And in 2017, Professor Patricia Illingworth from the Department of Philosophy and Religion and I wrote a book called The Health of Newcomers. So I’ve been working in this area for quite some time.

In the fall of 2019, I worked with Health Law Advocates, which is an NGO [Non-Governmental Organization] that I’ve been long involved with, on a series of amicus briefs that were filed around the country in what was known as the public charge litigation, challenging one of the Trump administration’s changes to immigration regulations.

One of the points that we made in the brief was that by making immigrants afraid to seek health care, the regulations would be dangerous in the event of a pandemic. The lower courts, for the most part, agreed with us. The Supreme Court in February allowed the rule to go into effect.

And in one of my first tweets, because I’m new to Twitter, I tweeted out something like Great timing having this rule go into effect just as the pandemic is coming. Unfortunately, the dangers of what was to come were all too apparent in February. And everything I feared came true.

Have nationality-based travel restrictions and travel bans protected the United States from COVID-19 infections?

Definitely not, and the proof of that is 180,000 deaths. The one tool that the administration has continually used from the end of January through today has been nationality-based restrictions, and yet we’ve got 180,000 deaths. We’re number one in deaths. So I think that proves that it didn’t work.

The administration, very interestingly, relied for the most part in the early days of the pandemic on its immigration powers as opposed to its public health powers. We could have a long conversation about whether any travel bans are effective. There’s a reason to question them, although this is certainly a unique situation with COVID. But the administration didn’t actually do a ban based on the public health, they did a ban based on the passport you were holding.

President Trump repeatedly claimed that he stopped travel from China, but he only stopped travel from China for people who do not have U.S. passports.

I get that there are reasons to repatriate people and say, if you’re going to close borders, people should be allowed to go back to their homes. But by focusing on the passport instead of the exposure, what the administration did was to say ‘we closed the border, all’s good,’ instead of implementing a more nuanced, approach that more carefully tracked and monitored people who are coming in from high exposure places.

Let me give you another example.

We know now that as a result of some of the genetic studies that have been done, that most of the cases that hit the U.S. Northeast in the spring, including Boston and New York City, came from Europe. So the president imposed another nationality-based ban against Europe in March, and what immediately happened was that thousands and thousands of Americans who were in Europe, including students, came rushing home because they were scared the border would close.

This created complete bottlenecks and chaos at the airports. That chaos was a petri dish and incubator of infection because it crammed people who were carriers with those who weren’t infected for hours in over-crowded airports and customs lines.

And then once they got through, nothing was done to track them. No requirements to quarantine, but we kept out the Europeans. The federal government was more worried about keeping out Italians instead of Americans who had been in Italy.

Let’s turn now to some of your other immigration recommendations. You say that Immigration and Customs Enforcement should not enforce immigration laws within health care facilities. How would that work?

I think it’s absolutely, critically important all the time, but especially now, that people are not dissuaded, deterred or fearful of going to get health care because of a fear of ICE.

We want people who are worried that they may have a communicable disease to be able to get the testing and treatment that they need so that they don’t spread the disease.

And one of the problems we have seen is that fear of immigration reprisal actions are dissuading people from getting into the healthcare system. This obviously hurts and jeopardizes the health of immigrants, but it jeopardizes the health of everybody when we’re dealing with a communicable disease.

I do not think ICE should be deporting anyone who tests positive.

As an alternative to deportation, what do you think ICE should do?

To be clear, I’m not saying there never should be any deportations. I’m focusing on the health issue. 

I think that the government should be providing healthcare to those people who are positive and providing appropriate safe places for people who are on track for deportation who are positive but asymptomatic.

One of the things we recommend is a significant reduction in detention facilities, which like prisons, are petri dishes. People cannot ‘socially distance’ in detention facilities.

Why do you think the CDC’s [Centers for Disease Control and Prevention] new interim, final rule on exclusion orders should be repealed?

It really troubles me to see the CDC not basing its decisions on public health. This is our nation’s premier public health agency, and what you see with that rule is similar to what we’ve been seeing the last few days with their revision of their testing guidance.

What you see is that they’re beginning to make decisions not based on public health, but on other policy objectives. So if CDC determines that travel from that region is unsafe, CDC has the power to stop travel, to impose quarantines on travelers coming in.

But again, what CDC is doing with its new interim regulation is basing the decision on the individual’s passport. That’s an immigration decision. It shouldn’t matter whether I’m a U.S. national or a dual citizen or only a Mexican, my exposure is the same. The virus does not care about my passport. CDC needs to care about the virus, not the passport.

DHS should not be making public health policy and CDC shouldn’t be making immigration policy. And when CDC allows immigration goals to override public health, it begins to lose its credibility and authority as a public health agency. The CDC begins to be viewed as just another arm for implementing the Administration’s immigration restriction policies.

Some of the recommendations in the report will require congressional approval. Given that we’ve got an election two months away and the political mood in general in Washington, how feasible is it that any of these recommendations get enacted?

These could be done quickly. We would hope that if there finally is another pandemic response bill, that some of these will be in there.

I recognize where we are in the political season and the gridlock and dysfunctionality of Washington. We are going to be coming out with another version of the report, an updated revised version around January. And I guess I have somewhat more hope that in January the political leaders in Washington will see fit to act on them.

I do want to emphasize that our recommendations are not only for the federal government. There are things that state and local governments can do today. They don’t have to wait for Washington. Washington may be dysfunctional, but that’s not an excuse for cities and states to not do what they can do.

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