Challenges of the COVID-19 Response: A Legal Perspective

This week, given the extreme circumstances surrounding the recent COVID-19 pandemic, we are once again deviating from our usual ILE content and leaning on the expertise of our in-house law fellow, Samantha Zinnes, to talk about the challenges local government has in dealing with the crisis. This brief interview was conducted via zoom on March 30^th, 2020.

Relating to the law and this COVID-19 crisis, what can you say about the federal and local response?

SZ: The problem right now is not necessarily that the law is flawed, but that we have a distribution of leaders who are unevenly using the law and the tools it gives them to their fullest potential.  We have a federal government with tools that only the federal government can use, but they are not being implemented the way states and local governments want or need them to be.  So the fact that we have multiple levels of government is a double-edged sword.  The states check the federal government by only allowing it certain powers, such as country-wide emergency response.  But what’s happening here is we have a federal government not using those powers, or using them slowly, so we still have 50 separate responses.  And those 50 responses are all different.

What have these separate responses meant for us and for supply chains of goods necessary for dealing with COVID-19?

When it comes to a global health crisis, we know that a unified response is the best response. Leading into the crisis, we have 50 different states competing for resources.  There are bidding wars between states, driving up prices and panic, which encourages individuals to hoard or take advantage of panic. Historically, a strong central system for directing resources can be more effective and helps mitigate some of this panic.

 

How do you see the way we think about the law changing as a result of the COVID-19 Pandemic?

I think that there might be an attempt to implement more safeguards so people in power have to listen to health officials.  What’s funny, though, is that laws like this are already on the books in Michigan.  So what we see here is more of an issue of interpretation and implementation and human nature, and less a failure of the law itself.

 

If this is a legal interpretation and implementation issue, what do you think we can do about this to help mitigate this situation next time?

I think that this is one of those once-in-a-lifetime instances that forces people to wake up and look at things with fresh eyes.  And if it doesn’t, nothing will.  This is something very tangible, like a war fought on our own soil.  It effects everyone directly. If we think about the few terrible events that have happened on United States soil and had widespread effects on the populace like the Civil War, Pearl Harbor, and 9/11, all of these events have been followed by massive reform and social change, for better or for worse. In this case, I think it’s likely that this will change the way that people interpret and implement the law-- hopefully for the better.

One big thing for attorneys, the justice system as a whole, will be determining how far government immunity goes.  Following this crisis, those in the legal profession are going to be testing this line.  If a government employee ignores the recommendation of the local health administrator or if the government employee fails to follow the advice and guidance of health professionals in times of crisis, what are the repercussions of that?  Are there any? Right now, we don’t know how any of this is going to pan out.  We have world leaders testing positive for [COVID-19].  We don’t know how this experience will change them, not physically, but emotionally, politically.  We don’t know how it will change us.  We’re still living it. 

Something Michigan Governor Gretchen Whitmer said has really stuck with me. It was something along the lines of, “It’s not time to litigate or determine who did what when.  It’s time to handle this now.  We will have time after to look back and litigate that issue.”

What is one surprising impact of this crisis that you see already emerging in local communities?

One surprising impact this will have on local communities will be handling the after effects of the stress on local government workers and medical professionals.  Both have had to cope with the fact that they may not be able to get the resources they need to operate, and for some, survive. They have people and patients that they are responsible for, and for at least part of this crisis, many of them had little to no support or recourse aside from what they could pull together on their own. Local officials were calling private suppliers for aid.  Governors were posting for help on Twitter. That is some serious stress and trauma. This is going to change public servitude going forward and attitudes toward those who work in the public sector or health professions.  Hopefully for the better, but only time will tell.