The end of the COVID-19 emergency

An unprecedented public health emergency has ended.

Photo by Isaac Quesada on Unsplash

Making the ending official

On May 11, 2023 the Public Health Emergency will officially end in the United States.

It was declared on Jan. 31, 2020, just one day after the World Health Organization declared COVID-19 on January 30, 2020 a Public Health Emergency of International Concern (PHEIC) under the International Health Regulations (2005). The World Health Organization ended its declared PHEIC on May 5, 2023.¹

There are more federal emergency provisions that were enacted by Pres. Trump in 2020 in order to respond to COVID-19. In addition to the Public Health Emergency² declared on Jan. 31, 2020; the National Emergencies Act on March 13, 2020, the HHS PREP Act Declaration on February 4, 2020, the Stafford Act Emergency on March 13, 2020, and the Defense Production Act on March 20, 2020 were also activated.

The Public Health Emergency declaration allowed for federal law waivers, such as the use of investigational new drugs and vaccines; and it permitted the federal government to establish social distancing and other medical countermeasures such as wearing masks in federal buildings. It does require renewing every 90 days, and it was renewed every 90 days for a total of 1,196 days, ending on May 11, 2023.

Manufacturers like pharmaceutical companies regulated by FDA were also given waivers during this period to distribute investigational new drugs and vaccines, and as of May 11, 2023, that guidance from FDA will transition to closure in three phases, ending 180 days after May 11, 2023. However, FDA will not be objecting to the continued distribution of drugs and devices that were covered during this period. So COVID-19 vaccines will still be available, for example.

However, the formerly free vaccines will no longer be covered by the federal government, and individuals will be relying on their health insurance for COVID-19 vaccines and treatments and tests.

Funding does not necessarily follow for these statutory authorities so for these emergency measures funding was needed from the National Emergencies Act declaration and the Stafford Act³ declaration. Although the National Emergency was declared by a President, it must be ended by a joint resolution of Congress or simply by non-renewal. So Congress did act to end the National Emergency and Pres. Biden signed H.J.Res. 7 on April 10, 2023⁴ which ended the National Emergency declaration, effectively immediately.

The Defense Production Act of 1950 (DPA) was activated on March 20, 2020 by Pres. Trump which authorizes the President to compel U.S. manufacturers to produce scarce goods. It was with this authority, that Pres. Trump compelled the automobile manufacturers to work together to manufacturer ventilators when hospitals had vast shortages in the beginning of the COVID-19 pandemic.

Because the public health emergency is now ending in the U. S., the Biden Administration is now officially ending the March 20, 2020 order from DHS that the U.S. use its statutory border authority to expel anyone who was illegally seeking immigrating into the U.S. that poses a threat of bringing COVID-19 into the U.S. because they would have to be held in close quarters as they wait processing, posing a threat to public health.⁵

International official ending of COVID-19, the PHEIC

The end of the Public Health Emergency of International Concern (PHEIC) was done upon a recommendation by the standing committee to the Director of WHO. This means that the committee found there was no longer a risk to other countries from travel or other transport of goods, and there was no longer a need for a coordinated response from member nations.

WHO has certainly suffered from a drop in confidence⁶ because of their perceived tolerance of China’s violation of the International Health Regulations to inform WHO with a 24 hours of learning of the threat of COVID-19 and its potential to be a PHEIC,⁷ and then their complete failure to be open and forthcoming about investigating the origins of COVID-19. Nor did they ever produce a patient zero that would have gone a long way in engendering global confidence.

The United States sent notice to the U.N. Secretary that the U.S. intended to withdraw as a member of WHO on July 6, 2020 (although interesting the Constitution for WHO has no mechanism for withdrawal from membership, default to the Vienna Convention for procedure would be the international legal approach which allowed for a year notice).⁸ Before July 6, 2021, Pres. Biden was elected and on his first day of office, Jan. 21, 2021, he withdrew the letter and signaled the U.S. would not be withdrawing.⁹

Rolling back progress

Looking back over these last three years, can we keep some of the progress we made in some areas? Under the Public Health Emergency declaration, telehealth was permitted and expanded and probably made healthcare available to a larger number of people who were unable to travel to a physician’s office or seek medicalcare otherwise. Medicare beneficiaries, rural health clinics and medicaid recipients were all benefactors of telemedicine. Unfortunately, federal legislation in 2023 eliminated telehealth from coverage and this great advancement will end 151 days after the end of the Public Health Emergency.

Worse, is that confidence in the federal government has fallen since the pandemic began. The President’s confidence level has fallen to just three percentage points at 42% above the all time low during the Watergate era; and Congress’s confidence level is even lower at 38%. ¹⁰ There are many reasons for this beyond the pandemic responses, but nevertheless, it means if the credibility of the federal government does not recover, we will be in a worse position with the next pandemic than we were going into COVID-19 responses when confidence was higher.

So What Have we Learned?

For responding to COVID-19, we relied on several new statutes created after the anthrax attacks of 2001, and they were useful but they were not fully implemented. For example the PREPA Act also authorized the creation of a national register of physicians and health care providers so they could cross state lines to help in hospitals in states where they did not have licenses, but could show they had a license in their own states. (They also have to have privileges to work in each hospital.) This has never materialized for unknown reasons.

Anthrax was not contagious, so issues of quarantine, isolation and vaccination were never addressed in the anthrax attacks of 2001. In many ways, anthrax was a small dress rehearsal for COVID-19 and COVID-19 could be a dress rehearsal for the next pandemic. We have to keep rehearsing to retain the lessons from our national experiences.

The 1918 Influenza Pandemic was more than one hundred years ago, and we were warned that we could expect another pandemic in about 100 years. So what could we have learned from the 1918 pandemic that we could use today? Vaccines were not an issue because we did not have one (not a real one); but one very big improvement was made from the lesson learned about data and pandemics. Because of the lack of systematic tracking, we will never have accurate numbers of deaths that were caused by the 1918 Influenza pandemic (in the U.S. or worldwide) because there was no plan to track the cases and deaths of this pandemic that came on without warning; so we have built robust tracking data systems that were in place and ready for use. These tracking systems were immensely useful during the COVID-19 pandemic.

The germ theory was barely known in 1918, but the use of masks was widely used at public events. Businesses and theaters were closed to stop the spread of the deadly influenza that could kill in three days. So using masks and closing businesses and theaters was just using the responses we learned in the past. But now, we are reflecting on whether the balance of lives saved compared favorably to those lost to suicide or suffered other damages as a result of isolation, home confinement and lack of physical social interaction.

The Yellow Fever epidemic in 1793¹¹ the United States and the documented Smallpox Epidemics of Boston in 1721¹² and elsewhere, as well as our modern public health emergencies showed that class and economics allow some people to escape exposure to risk while others must continue to work in public places and risk themselves and their families. In both of these 18th Century epidemics, the wealthy escaped from the outbreaks of Philadelphia and Boston to their country summer homes, while the poor languished in sick houses and died at much greater rates.

So, too, Native Americans on reservations without running water, in America (yes, in America) suffered at extraordinarily high rates during the COVID-19 pandemic in part due to a lack of running water which made hand washing as a precaution against COVID-19, impossible.

Even the Black Death of 1346-1952 holds some lessons for understanding the upheaval of society that can come from widespread death, the role of religion, etc. , for example quackery has always been with us, with false cures to take advantage of a vulnerable population, and so we are prepared for that.

If that is not enough for lessons learned, at least fifty movies since 1923 have done a credible job of imagining the possibilities of a pandemic of all kinds, some real diseases (Bird Flu, plague) and some imagined (Andromeda Strain). For a complete analysis of those pandemic and bioterrorism scenarios you can read about them in my book, “The Things that Keep You Up at Night: Reel Biohorror” at https://a.co/d/gVnardu

We also have Constitutional lessons learned during the pandemics, and COVID-19 presented quite a few. I wrote an article for The Federal Lawyer in Feb 2022 entitled, What have we learned about federalism and public health emergencies since 2001?.¹³ This was a followup to an article I wrote about the anthrax attacks and federal authorities in 2002 (a 20 year view)! One of the major questions we have to answer is when is a pandemic a threat to national security which is a Constitutional question about whether the matter should be regulated by states or by the federal government. Thus, federalism is the tension between government authorities.

Constitutional Federalism — unresolved tension in public health emergencies

One of the most frequent conflicts that we saw in the COVID-19 responses was disagreements between recommendations from the federal government and responses from the state and local governments. This is the federalism aspect of the U.S. Constitution, although it was rarely mentioned, and it is defined by the 10th Amendment:

Tenth Amendment

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

These state powers were interpreted by the U.S. Supreme Court in 1824 in a complex case about steam ship licenses, styled Gibbons v. Ogden.¹⁴ Although it was about steam ship licenses, it addressed the powers not delegated to the United States, which included "health laws." This case has been the foundation of state authority in all areas of health law. It also helps define federal powers to regulate drugs, vaccines and masks because they are activities that involve interstate commerce. (Power to regulate activities that affect interstate commerce is a power delegated to the United States in the Commerce Clause.¹⁵ )

So for example, the U.S. FDA regulated the COVID-19 vaccine, but states regulated how it was delivered and implemented. Through legislation, the federal government was given power to temporarily waive liability for vaccine liability and injuries (which is a state jurisdictional matter) in an emergency, which shifted power from the state to the federal government, but only temporarily in an emergency. So the federalism relationship worked as planned.

Areas where it was more confusing and not as useful was where masks could be required in federal buildings and on public transport, but as soon as you stepped into state jurisdiction (off the tarmac or off the public bus into the city street and into a private store) you were subject to state and local jurisdiction which may have been that masks were not required. Even local jurisdictions had some control to have different restrictions than their state governments, which also caused conflicts in authority.

Native American Nations are also sovereigns in our system of federalism and conflicts arose where tribal governments placed controls on reservation borders for ingress and egress points for public health purposes to protect tribal citizens. Native Americans were one of the most vulnerable communities to COVID-19 illness and death. One state’s governor understood the cooperative federalism model; and one state’s governor seemed totally ignorant of the existence of tribal sovereignty.¹⁶ These federalism relationships should be established and understood before the next disaster.

Unintended Consequences

There may be some good but unintended consequences of enduring COVID-19. In this article we have flown from the Black Plague in 1346 through the development of human civilization to glean some lessons that will help us survive yet another pandemic that is sure to come. But what of this has yielded some good unintended consequences? In our rush to move forward and put this terrible three years behind us, let us not forget the lessons of COVID-19 because they may save us in the next pandemic. We also do not want to roll backward from some of the important changes that were made during COVID-19.

The pandemic highlighted economic disparities among people who had to work in service jobs and could not escape into isolation and still earn enough to survive the pandemic. A new surge in research has begun to consider health disparities that considers race but should also consider economics. This will contribute to better planning and better responses.

Other changes in our day to day lives, like conducting more meetings online, from telemedicine, teaching court proceedings to church services, changed our society in ways that seem permanent. Only 20% of jobs are now completely onsite, with 52% being hybrid (a mix of working some days at home) and 28% exclusively remote (compared to Jan 2019 when only 8% of jobs were exclusively remote).¹⁷ This new major shift in job flexibility may allow less commuting time and more family time as an unintended consequence of a terrible pandemic.

These unintended consequences should be good for society, and we should not forget the lessons learned from our past pandemics — they will prepare us better for the 2119 pandemic.

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If you would like the most complete reference on biosecurity law and legal authorities and policies, both domestically and internationally, you can find my book on amazon.com at https://a.co/d/1rkgXU0

1. https://www.who.int/news/item/05-05-2023-statement-on-the-fifteenth-meeting-of-the-international-health-regulations-(2005)-emergency-committee-regarding-the-coronavirus-disease-(covid-19)-pandemic

2. Public Health Service Act, 42 U.S.C. Sec. 201 (2000).

3. Stafford Act Sec. 501(b) (42 U.S.C. §5191).

4. https://www.congress.gov/bill/118th-congress/house-joint-resolution/7

5. 42 USC 265, 268 Order, March 20, 2020 at https://www.cdc.gov/quarantine/pdf/CDC-Order-Prohibiting-Introduction-of-Persons_Final_3-20-20_3-p.pdf

6. https://globalizationandhealth.biomedcentral.com/articles/10.1186/s12992-022-00872-y

7. Article 6, para. 1, International Health Regulations (2005, 2009) at file:///C:/Downloads/9789241580496-eng.pdf .

8. https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(20)31527-0/fulltext#:~:text=On%20July%206%2C%202020%2C%20the,to%20withdraw%20from%20WHO%20membership.&text=Trump%20administration%20sends%20letter%20withdrawing,Health%20Organization%20over%20coronavirus%20response.

9. https://www.theverge.com/2021/1/20/22240386/biden-who-us-withdrawal-world-health-organization

10. https://news.gallup.com/poll/402737/trust-federal-government-branches-continues-falter.aspx

11. https://www.gilderlehrman.org/history-resources/spotlight-primary-source/reports-yellow-fever-epidemic-1793

12. https://en.wikipedia.org/wiki/1721_Boston_smallpox_outbreak

13. The article is free to paid subscribers.

14. https://www.oyez.org/cases/1789-1850/22us1

15. https://www.law.cornell.edu/wex/commerce_claus

16. https://blog.petrieflom.law.harvard.edu/2023/03/07/sovereignty-federalism-and-native-nations-tribal-nations-in-a-public-health-emergency/

17. https://www.gallup.com/401384/indicator-hybrid-work.aspx