[MUSIC PLAYING] JOSH SHARFSTEIN: Welcome to Public Health On Call, a new podcast from the Johns Hopkins Bloomberg School of Public Health. Our focus is the novel coronavirus. I’m Josh Sharfstein, a faculty member at Johns Hopkins and also a former Secretary of Maryland’s Health Department. Our goal with this podcast is to bring evidence and experts to help you understand today’s news about the novel coronavirus and what it means for tomorrow. If you have questions, you can email them to publichealthquestion@jhu.edu. That’s publichealthquestion@jhu.edu for future podcast episodes. Today, I’m talking to Lainie Rutkow, whose both a professor of Health Policy and Management at the Johns Hopkins Bloomberg School of Public Health and a lawyer. She’s an expert in how the law works in the setting of an emergency, like the coronavirus pandemic. In our discussion, she shares her thoughts about recent legal developments between states and the federal government, between one state and another state, and between governments at every level and their citizens. Let’s listen. Professor Rutkow, thank you very much for joining me.

I’m going to go right to the legal issues that you’re an expert on, and ask you what people are to make of all the news, day after day, of the very intrusive things that government can do to control the spread of the disease? LAINIE RUTKOW: Sure. I’m happy to speak to that, and these are extraordinary times, and it does feel like everyday we’re hearing about some new power or alleged power the government has. So one reason that we’re hearing about all of these different types of governmental power is because each level of government in the United States, federal, state, and local, has the power to give itself certain temporary legal authorities when there’s an emergency. And we’re now in a place where the federal government, all 50 state governments, and many of the local governments have declared a legal state of emergency, and that gives them access to powers that they don’t typically have.

JOSH SHARFSTEIN: So in other words, you’ve got the laws that govern when there is no emergency, and then, when someone declares an emergency, like a governor or the president, there are different laws that kick in. LAINIE RUTKOW: Yes. So the non-emergency laws– I think of them as the ones that we live our everyday lives by– those laws are still there. But once a governor or a president, or in some cases, a mayor, declares an emergency, you may see some of those non-emergency laws be temporarily waived, or you may see additional emergency laws come into play, which is why it can feel like governments have extra powers right now that we haven’t previously heard a lot about.

JOSH SHARFSTEIN: What kinds of extra powers do governments get in an emergency? LAINIE RUTKOW: So one thing, and this is a pretty common one, is that we’ll see state governments use their emergency authority to temporarily waive or alter the way that they license health care providers, and the reason for that is that in the US, health care providers’ licensure for the most part is state specific. And let’s say, imagine during Hurricane Katrina in Louisiana. There was a tremendous need to have health care providers from other states rapidly come into Louisiana to meet the need for care.

So what Louisiana did, using emergency authority, was to temporarily change its licensure laws to recognize health care providers who had a valid license to practice in a different state. JOSH SHARFSTEIN: Got it. What other things fall under this emergency authority? LAINIE RUTKOW: Emergency authorities can also give governments, particularly local and state governments, access to resources, to financing, and to additional personnel once emergency powers are invoked. Now, often the way that those arrangements work have been established during a non-emergency or planning period, and they’re put in place through some type of an MOU, a memorandum of understanding. JOSH SHARFSTEIN: Now, some of these powers can be quite powerful. So people think about quarantine or isolation. Can the government insist that somebody stay in their house, or even move them somewhere else to protect the rest of the community from an infectious disease? LAINIE RUTKOW: So it’s always ideal when governments do that, and that’s– isolation and quarantine, people think of it as bread and butter authority that state and local governments have relative to public health, but what you typically see is voluntary compliance.

So it’s not that the government is say, requiring someone to be in their home. What more typically happens is someone is asked to voluntarily do that, both for their own health and for the health of their community, and then they comply. What we’re seeing now because of the wide spread of COVID-19 and accompanying panic and other concerns is additional government activity to potentially enforce isolation or quarantine, and that means that we’re also seeing governments legally ordering isolation and quarantine, and that’s being done because the preferred least restrictive alternative, which is voluntary compliance, isn’t necessarily working.

JOSH SHARFSTEIN: So you’re basically pointing out that just because the government can do something doesn’t mean it’s a good idea to do it, and that it may be better for some of these more serious emergency powers for the government to persuade people to do it voluntarily, and to really only use them when there is a urgent specific issue that can’t be resolved any other way? LAINIE RUTKOW: So true use of emergency authorities with the company and governmental enforcement is often a path of least resort, and as you said, the least restrictive alternative, ideally one that involves voluntary compliance, is almost always preferable. JOSH SHARFSTEIN: Got it. Now, let’s talk about how different levels of government interact, and I want to first ask you about sort of the vertical interactions meaning local, state, federal interactions, and then also horizontal between states because we’re seeing some different areas here. So vertical would be how do these powers work? Is it just the federal government has all the power, and if they don’t use it, then the state, and if they don’t use it, then the local, or how does the law set up the powers between different levels of government? LAINIE RUTKOW: There are two ways to look at this.

So the first way is from the bottom up. I’m going to start with that one, from the locals up, and then I’ll talk about from the top down, from the feds down. So all emergencies start locally. They have to start somewhere in a particular jurisdiction. The way that the law sets up the vertical interaction between governments when an emergency or a disaster happens is that the expectation is a local government tries to respond.

If the local government gets overwhelmed by the response, they would then reach out to their state government, the state in which they sit, to ask for additional help. If the state government provides assistance, but then feels like it too is overwhelmed by what’s needed for the response, the state would typically reach out to the federal government to request assistance. So that’s the bottom up way that all of this is envisioned to work legally.

JOSH SHARFSTEIN: And that is happening in some places, right? In some places, you’re seeing the city asking the state for help, and the state asking for a federal emergency declaration, for example. LAINIE RUTKOW: Right. So the most high profile of those examples right now would be the interactions between New York City, New York state, and the US Federal Government. JOSH SHARFSTEIN: Got it. OK. So then you were going to go from the top down. LAINIE RUTKOW: Yeah. So then the other piece of this is how we look at vertical interactions starting at the federal level, and many people assume– and it’s very understandable why they would– that the federal government has all of the power here, so can’t the federal government just tell the state and local governments, this is what you’re going to do. But it turns out that the way that the US legal structure works, it’s not that simple. The vast majority of public health powers to respond to an emergency like the one we’re seeing now actually rests with the state and local governments.

When we think about something like quarantine and isolation, what we’re talking about a few moments ago, typically that’s a state or local government power. It’s only in extraordinary circumstances that you see the federal government using its quarantine power at all, and what we’re seeing is that that power for the federal government is a somewhat limited one. Typically, it’s limited to points of entry into the United States.

So the federal government is using its quarantine authority to keep, or it was attempting to previously, to keep COVID-19 out of the US by quarantining folks at the country’s borders. JOSH SHARFSTEIN: So the president apparently briefly considered, and now at the moment we’re recording this, is deciding against the idea of a quarantine or some sort of something for the New York region because of all the cases that are there. Can the president do that? LAINIE RUTKOW: So what the president can do– and I want to say, this is in theory. These are all things that we haven’t seen tested before, but from a legal perspective, in theory, the federal government has the power to limit travel between the states for the purpose of preventing the spread of disease. So how that would be implemented and enforced in practice is unclear because nothing like that has ever been attempted before.

And so yesterday, when the president was floated the idea of some kind of a quarantine of New York and neighboring states, I believe that what I just described was more what he would have had in mind, although now, it seems like he’s moved away from that idea. JOSH SHARFSTEIN: Got it. Any other thoughts about this vertical, top down? States generally can impose what they want on cities and counties, is that fair given the fact that states have this central power in the US under US law? LAINIE RUTKOW: For the most part.

There may be some variation depending on how cities, counties, and municipalities were set up originally within their state, but for the most part, you would expect to see local governments complying with directives that are coming from the state level. But to answer your question, Josh, I did want to mention that because we are now in a moment of great uncertainty about the federal plan and the response going forward, we’re seeing this dynamic emerge among the state governments where the law, and particularly, emergency laws are not functioning in the way that they are typically envisioned to function. And what that means is that prior to any emergency happening, state governments and local governments spend a lot of time focused on planning and preparing for a range of emergency and disaster responses. And one of the underlying goals of that planning is that jurisdictions, local jurisdictions, state jurisdictions, will be working together during an emergency response should something happen.

But because of the moment that we’re now in, the federal government has set up a dynamic where the states are essentially competing with each other instead of working together for things like access to scarce resources along the lines of ventilators. JOSH SHARFSTEIN: So we’re shifting from this vertical question to this horizontal question, and the point that I think you’re making is that typically, we expect– just like we would hope that individuals would understand the need for advice and not require orders for isolation and quarantine, typically we want the states and the federal government to be collaborating in an emergency, and not require legal battles between them over particular issues. But right now, we’re in a situation because there’s not a clear for example, federal response on supplies, that we’re starting to see the horizontal system get a little bit– meaning from state to state– get adversarial.

Is that fair? LAINIE RUTKOW: Yeah. We’re starting to see it becoming adversarial, and in some ways, the system is being turned on its head because it’s not contemplated to be working in the absence of a clear federal vision for her moving forward. So instead, now we see the emergence of these policies, or suggested policy approaches, like Rhode Island stopping folks that have a New York license plate to demand that they quarantine within the state. We’re seeing these very strange policy responses that are not at all in the spirit of how planning and preparedness typically work in a legal framework. JOSH SHARFSTEIN: So I mean, also, you’re seeing– I saw that some states are trying to screen people from New York in airports when they arrive. LAINIE RUTKOW: Yeah. I believe Florida is doing that now. JOSH SHARFSTEIN: Right. Which they can only do after people land, right? They can’t do it when they take off because they’re taking off from the other state.

So it’s sort of, if there were– what you’re saying, I think, is if there were an approach to travel at the federal level, then the states would all know their part in it, but now they’re kind of off on their own, a little bit acting like independent countries. LAINIE RUTKOW: They are. Yeah. I guess what I’m saying is that the fundamental nature of collaboration during an emergency response, which is what we want to see both for local governments with in a state, but then among the states themselves, is not happening, and a little bit, starting to fall apart because there’s not a clear picture coming from the federal government about how states should behave. JOSH SHARFSTEIN: So what happens when this goes to the courts. I saw one governor threatening to sue another governor over this.

Is there any precedent for this? What would you expect might happen? LAINIE RUTKOW: I saw that also. So it’s unclear. Many of the types of policies or threatened policy responses that we’re seeing are things that have not happened previously so it’s hard to know. I can imagine the types of legal arguments that the states that are impacted by this would make, but because these are extraordinary times, and again, because most of these states, as well as the federal government, are functioning under legally declared emergency powers, it makes it very difficult to anticipate how decisions might be made. But I very much hope that many of these issues can be quickly resolved without having to resort to the court system. JOSH SHARFSTEIN: Well, I really appreciate your expert guidance through what is appearing to be an increasingly thickening morass of potential disputes up and down and across the legal system.

Hopefully, we can see more clarity, more cooperation, more cooperation between citizens and government, more cooperation between governments, here in the United States, and between countries around the world because we’re all facing a common enemy, and that enemy hasn’t gone to law school. That enemy has– LAINIE RUTKOW: That enemy does not respect jurisdictional boundaries. JOSH SHARFSTEIN: That is very well put. Well, I really appreciate your time today to talk to me. LAINIE RUTKOW: Thanks, Josh, and thanks also for the podcast. It’s a wonderful resource for everyone. JOSH SHARFSTEIN: Thank you for listening to Public Health On Call, a new podcast from the Johns Hopkins Bloomberg School of Public Health. Please send questions to be covered in future podcasts to publichealthquestion@jhu.edu. This podcast is produced by Josh Sharfstein, Lindsay Smith Rogers, and Lymari Morales.

Audio production by Niall Owen McCusker and Spencer Greer with support from Chip Hickey. Distribution by Nick Moran. Thank you for listening.

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