American Contagions by John Fabian Witt

Author:John Fabian Witt
Language: eng
Format: epub
Publisher: Yale University Press
Published: 2020-11-15T00:00:00+00:00

Chapter 5

MASKED FACES TOWARD THE PAST

America’s first responses to the novel coronavirus were shaped by legal and political tools inherited from the past. The imperatives of the pandemic played a role, too, of course, but history conditioned American responses.

How did history matter? Long-standing patterns in American history reemerged in the early months of the new coronavirus. As in past epidemics, the law of epidemics took the form mostly of state law, not federal. Courts retained their customary role in deferring to public health authorities—although, as usual, the courts did not cede the field entirely. There were new twists, too. This time, courts became forums for new varieties of hyper-partisanship. Novel quarantinisms appeared, too, now exacerbated by mass incarceration and mass immigration detention. Glaring racial disparities in fatality rates, especially high for African Americans, reprised long-standing health injustices and produced renewed attention by progressive sanitarians to class disparities in living conditions and access to health care. Meanwhile, new technologies of surveillance threatened to undo the civil liberties synthesis of the HIV / AIDS era.

* * *

In most countries, the coronavirus crisis accelerated trends toward further concentrated power at the national instead of the local level. Sometimes, this was because presidents and prime ministers used the crisis to consolidate power. In Hungary, the parliament handed Prime Minister Viktor Orban sweeping new emergency powers. In China, President Xi Jinping used the crisis to expand his power over Hong Kong. As the legal scholar David Schleicher has observed, however, the imperatives of COVID-19 produced national centralization in countries around the world even where leaders did not use the virus as a pretext for power grabs.1 The speed and geographical scope of the crisis seemed to warrant national rather than local policy.

In the United States, by contrast, the law of public health continued to be principally state and local law. The federal government played an awkward and sometimes bumbling role.2 The federal Centers for Disease Control and Prevention, established in Atlanta after World War II to wage an effective campaign against malaria, had developed an international reputation as a leading institution in global efforts to combat infectious diseases. Now the CDC produced flawed testing kits in the early days of the outbreak that made it impossible to test widely. CDC efforts to assist in the tracking and tracing of infected travelers proved clumsy and ineffective. (The CDC’s director, Robert Redfield, had been an early and controversial proponent of quarantinist strategies for HIV / AIDS patients.) Meanwhile, the White House mostly declined to assert vigorous federal executive authority, except to advance preexisting partisan projects. Emergency orders cut back on the entry of asylum seekers and foreign workers and slashed federal funds for noncitizen students.3 A porous travel ban slowed travel from China while COVID-19 cases poured in from Europe. Federal officials like Anthony Fauci, the director of the National Institute of Allergy and Infectious Diseases, and Deborah Birx, the coronavirus response coordinator for the White House, became clearinghouses for information and scientific guidance. But they exercised relatively little actual authority.

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