States need prepared, predictable policies before the next pandemic

The way that states across the nation have responded to COVID-19 offers a large, natural experiment on the effectiveness of a range of pandemic policies. Despite what you hear from politicians from both parties, there’s actually not much we can say for certain about which policies performed better than others — yet. But one thing is clear: Most states need better plans to guide their responses to pandemics and other emergencies.

Governors across the nation embarked on significantly different approaches to tackling COVID-19. Some states quarantined travelers; others did not. Some limited social gatherings to 10, some to 25, and others to 50 or even more. Face mask requirements are statewide in some places, applied at the city or county level elsewhere, and completely absent from yet other states. School reopening plans are just as varied.

These differences suggest that states did not develop, or did not follow, prepared plans. They winged it, in other words. This does not mean governors acted arbitrarily or failed to consider expert opinion or evidence when making decisions — just that these decisions were not made according to a strategy that had been prepared in advance. 

If states had prepared and followed such plans, their responses to the pandemic would be more similar than they are different. True, states’ plans would vary slightly — what’s best for Montana may differ from what works for Connecticut. But if each state followed the best, science-based recommendations, there would be much more consistency in these emergency orders than what we’ve seen. 

This hodgepodge of policies has created a mountain of legal uncertainty. This is a boon for lawyers, of course, but a potentially costly confusion for the rest of us. Ballotpedia, a nonprofit, online political encyclopedia, is tracking about 900 lawsuits nationwide related to the states’ emergency policies. And it acknowledges this is only a partial list.

Some actions taken by governors were consistently shot down by the courts. For example, several governors suspended nonelective medical procedures, but courts have ruled this illegal in Tennessee, Oklahoma and Texas. If states followed a plan they had prepared in advance, they would be able to avoid some foreseeable missteps. 

Yet, states seem to find themselves in legal turmoil no matter what they do. Some are being sued for closing businesses and others are being sued for opening them back up. They have been sued for suspending in-person schooling and for allowing it again. Churches are suing the government and the government is suing churches. In California, members of a church sued Los Angeles County for prohibiting them from gathering. Meanwhile, in Ventura County, public officials are suing a church there for conducting services.

Some states seem unprepared even for basic legal questions about how to handle a public health emergency. In Michigan, for example, Gov. Gretchen Whitmer is relying on a rarely used and obscure law from 1945 concerning urban riots to issue emergency orders that have the force of law, without having to consult the state legislature. This raises an obvious separation-of-powers issue, and its constitutionality needs to be decided by the Michigan Supreme Court. Executive branch officials in Wisconsin and Pennsylvania, among others, have faced legal challenges to similar fundamental governance questions. 

To be fair, states still may face lawsuits even with prepared emergency response plans. And because lockdowns and similar pandemic policies involve federally protected rights, such as the freedom of religion and assembly, there’s only so much states can do. At a minimum, though, a state could settle the predictable but yet unresolved legal questions, such as those that are still up in the air in Michigan and elsewhere. 

All this controversy, of course, is amplified by partisan interests, who have demonstrated a willingness to exploit it to score political points. If a state followed predetermined procedures, ones ideally developed in a bipartisan fashion, that would make it more difficult for people to politicize their responses to emergencies.

If states had properly prepared for dealing with a pandemic such as COVID-19, governors would have a better sense of their legal authority. The public then would not have to wait for a court to determine which policies apply and which do not. Governors could steer clear of policies that might be overturned in court and could provide a much more consistent approach to their states’ response.

The effectiveness of a state’s emergency orders increases with the citizens’ willingness to comply with them. Easy-to-understand and predictable policies make that more likely. Yet, we have seen anything but those from states in this pandemic. Between now and the next widespread public health challenge, states should develop preparedness plans that are consistent and on solid legal ground.

Michael Van Beek is director of research at the Mackinac Center for Public Policy in Midland, Mich.