Responding to COVID-19 failures

Responding to COVID-19 failures
© Stephen Maturen/Getty Images

By now, most people have their list of the failures associated with COVID-19; political, financial, social, equity, and public health failures appear on most lists. In a new report, I joined 50 top experts from a wide variety of policy areas to diagnose and treat another facet of the COVID-19 crisis: legal failure. In Assessing Legal Responses to COVID-19, our contributors surveyed numerous federal, state, and local laws, assessing their performance during COVID-19 and made hundreds of actionable recommendations for reform across the domains we assessed. 

Some of our most important recommendations involve complex structural reforms and will require hyper-detailed legislation. These include major priorities such as establishing the Food and Drug Administration and the Centers for Disease Control and Prevention as independent agencies less susceptible to political influence, as well as introducing fundamental health care and public health reforms. However, our experts also suggested some immediate Congressional actions that will improve our response to the pandemic.

First, as COVID-19 continues its surge across the sunbelt and resurgence in the Midwest, necessary mitigation efforts will continue to impact businesses, their workers, and consumers adversely. Congress needs to fund state and local control efforts and to keep families and businesses above water through the worst economic downturn since the Great Depression. This legislative support should include legal protections against eviction, mortgage foreclosure, utility shutoff, discrimination, and employment loss, as well as funding for income support and unemployment benefits.


Second, COVID-19 has once again confirmed that U.S. health care continues to critically underperform across multiple dimensions, including access, financing and delivery. While fundamental issues such as over-reliance on employer-provided insurance must be addressed after the election (or earlier if the Supreme Court agrees with the administration and strikes down the Affordable Care Act), Congress can deliver some rapid fixes. There should be an enhanced Medicaid match during the pandemic and its economic turmoil, additional incentives to hold-out states to finally expand Medicaid, and for those who wish to remain in private health insurance markers, COBRA subsidies for the recently unemployed, and Special Enrollment Periods for those wishing to purchase Marketplace plans. The CARES Act only scratched the surface of the health care costs associated with COVID-19 and the Administration’s plan to pay for the care costs of the uninsured has never materialized. Congress can and should step up and solve those problems immediately.

Third, the U.S. was unprepared for the surge in demand for basic medical equipment for testing, infection control and care. Diagnosing and reversing this colossal federal failure will take time. However, because states or groups of states have been forced to take on logistical roles that were assumed to be federal, Congress must provide the funding for those who have taken responsibility. If the states are to take over the role of Procurer-in-Chief, they should have that effort funded.

Fourth, COVID-19 has exposed the safety net, revealing our country’s lack of adequate protections for low-income individuals and families with regard to safe and affordable housing, food security, income security, and worker safety. Even more of an indictment of our system is that the most severe impact has been on those the system was already failing — people of color and low-income individuals, whose ranks include the majority of workers providing essential services and unable to shelter at or work from home. Here, Congress can make an immediate difference by increasing SNAP allotments and broadening eligibility, passing an immediate moratorium on evictions and foreclosures, and providing additional funding for OSHA to fully protect the workforce. Similarly, Congressional action to protect nursing home residents and staff and ensure enhanced enforcement and data transparency is urgently required.

Fifth, the COVID-19 pandemic has laid bare the life-and-death consequences of inadequate and discriminatory laws and policies such as unequal worker protections, divisive immigration policies, and uneven access to health care. In plain sight health and racial disparities are being compounded daily by the pandemic. Gaps in our civil rights laws and uneven enforcement will take time to solve. However, Congress must immediately demand greater accountability from the agencies responsible for the enforcement of our Civil Rights laws, including the U.S. Department of Justice and the U.S. Department of Health and Human Services Office of Civil Rights. During these difficult times, community monitoring and participation is vital, and Congress should fund community-based organizations serving racial/ethnic communities, immigrants, LGBT, incarcerated populations, persons with disabilities, and other under-resourced and underserved communities.

COVID-19 may well provide the opportunity to re-write the social contract. But, that revision will take time, time we may not have. As our fellow citizens do their part, working from home, helping online teachers tutor their kids, and wearing masks, Congress should step up and finish the work it started.

Nicolas P. Terry, LLM, is a Hall Render professor of law and the executive director of the William S. and Christine S. Hall Center for Law at Health Indiana University Robert H. McKinney School of Law.