Secretary Azar: use the truth to help save us from the coronavirus
The White House is treating meetings about coronavirus as classified, excluding health officials who lack proper clearance and implicitly threatening prison for those who attend and then tell the country what is actually going on. Accurate information about coronavirus is being withheld from the American people, costing lives. The president has made no secret of his aversion to telling the truth about the virus’s spread. And, of course, he openly bragged about holding American citizens hostage at sea in order to maintain a facade of low infection rates.
The White House seems to be taking other steps to prevent government officials from telling the public the truth. Their legal justification for this isn’t public, but they are likely relying on a purported but unfounded presidential power to censor accurate, life-saving information.
This kind of overt political pressure from the most powerful person in the country puts officials who work for the Centers for Disease Control (CDC) and its parent agency, the Department of Health and Human Services (HHS), in a terrible position, one in which telling the truth means risking their jobs and undermining their ability to help in this crisis. This is unfair to them and dangerous to public health.
Fortunately, Congress has already empowered the secretary of HHS, currently Alex Azar, to create a promise—backed by law—to the American people that the agency will share accurate and comprehensive information about coronavirus. Once this promise has been made, HHS (and thus CDC) will be legally obligated to comply with it, whether the White House likes it or not. If they don’t, the courts can step in.
The idea that the government would need a promise, and the legal backing it would create, to tell Americans the truth is absurd. (Indeed, HHS is already required to “ensure and maximize the quality, objectivity, utility, and integrity of information that it disseminates to the public.” But, for various reasons, this existing obligation is tough to enforce, particularly when the president is the hurdle.)
But that seems to be our reality. And we have a tool that is designed to confront that reality: the Public Health Service Act, which today gives the secretary of HHS the power to “make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases.” This language hits a trifecta of powers that could make it a strong antidote to the disinformation coming out of the White House.
First, the Public Health Service Act empowers the HHS secretary, rather than the president, to make and enforce regulations that “in his judgment” are necessary to control coronavirus. Going forward, if Secretary Azar wants to issue regulations requiring HHS to provide the American people with accurate and comprehensive information and warnings about coronavirus, the president can’t stop him without firing him. For example, had such regulations been in place two weeks ago, HHS would have had a legal obligation to issue its warnings about air travel for elderly Americans, notwithstanding the president’s objections. To be sure, the president may still try to muzzle HHS and may claim some sort of specious right to do so, but HHS will be legally bound to follow its new regulations, in a way that a court could enforce.
Second, the law says that regulations issued under the Public Health Service Act may not be “arbitrary” or “capricious.” That means the regulations the HHS secretary creates must be rational and constrained by facts. As a result, even if the president tries to pressure Secretary Azar to fold lies into these regulations, Secretary Azar is legally forbidden from doing so, and a court should overturn regulations that are not based on facts.
Third, Secretary Azar is allowed to enact these regulations quickly if he “for good cause finds” that the normal procedural requirements for issuing regulations are “impracticable, unnecessary, or contrary to the public interest.” There’s little doubt that “good cause” currently exists for exactly this situation—given the lives that can be saved by a swift, science-based response to the growing pandemic. Regulations that require Secretary Azar to provide accurate and comprehensive information about coronavirus to the American people would undoubtedly pass this bar. In fact, HHS invoked this “good cause” provision during the SARS epidemic.
Moreover, unlike some regulations, HHS would not need to submit this one to the Office of Management and Budget (an arm of the White House) for pre-publication review. Only regulations that have an annual effect on the economy of $100 million or “interfere with an action taken or planned by another agency” generally need to undergo this review. If the White House wants to argue that a promise to tell the truth would have this type of impact, let them.
In a pandemic, accurate information saves lives; inaccurate information costs lives. Secretary Azar should immediately issue regulations that require HHS to provide accurate and comprehensive information about coronavirus to the American people. HHS can issue these regulations quickly and the White House cannot interfere. Our lives, and our democracy, may depend on it.
Erica Newland is counsel at Protect Democracy. From 2016 to 2018, she was an attorney at the Office of Legal Counsel.
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