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April 2, 2020 by Daniel Farber

Federalism and the Pandemic

The states have been out in front in dealing with the coronavirus. Apart from President Trump's tardy response to the crisis, there are reasons for this, involving limits on Trump's authority, practicalities, and constitutional rulings.

Statutory limits

As I discussed in a previous post, the president's power to deal with an epidemic is mostly derived from statutes. The available statutory powers include deploying federal resources and funding to support the states; controlling the movement of infected individuals across state lines and the U.S. border; and dealing with infections within the government's workforce. [Addendum: The way this was originally stated, it was a bit too narrow. The feds can also quarantine those who are likely to infect people who will cross state lines.]

States have broader powers. Governors, and often mayors, have the power to impose quarantines, close down businesses, and take over needed private resources. State governments also have ultimate control over public hospitals, and they regulate medical practice and activities of private hospitals. In short, while they don't have the same resources as the federal government, their powers are significantly stronger.

Practical limits

There are also practical reasons for a …

April 2, 2020 by Joseph Tomain
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In this time of pandemic, we are learning about our government in real time – its strengths and weaknesses; the variety of its responses; and about our relationship, as citizens, to those we have elected to serve us. Most importantly and most immediately, we have learned the necessity of having a competent, expert regulatory structure largely immune from partisan politics even in these times of concern, anxiety, and confusion.

One of life’s lessons that most of us have learned, most likely from our mothers, is that it is better to be safe than sorry. That bit of folk wisdom has been embedded in environmental law for about three decades, where it is known as the precautionary principle. Briefly, that principle can be explained this way: “Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for …

April 1, 2020 by Michael C. Duff
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Front-line health care workers and other first responders are in the trenches of the battle against the COVID-19 virus. The news is replete with tragic stories of these workers fearing death, making wills, and frantically utilizing extreme social distancing techniques to keep their own families sheltered from exposure to the virus. Should they contract the virus and become unable to work, they may seek workers' compensation coverage, which is the primary benefit system for workers suffering work-related injuries or diseases.

Under workers' compensation, workers are entitled – after a waiting period of seven days or so, depending on the state – to a portion of the wages earned at the time of suffering the work-related injury or illness and payment of reasonably necessary related medical expenses.

Yet, as Bill Smith, president of the Workers' Advocates Law and Injury Group (the largest group of employee-side lawyers in the country) noted …

March 31, 2020 by Brian Gumm
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On March 27, the Center for Progressive Reform joined environmental justice, public health, and community advocates in calling out the U.S. Environmental Protection Agency (EPA) for suspending enforcement of our nation's crucial environmental laws. The agency made the move as part of the Trump administration's response to the coronavirus pandemic, despite mounting evidence that increased air pollution worsens COVID-19, the disease the virus causes.

Not missing the opportunity to use the crisis as an excuse to press its assault on our safeguards, the EPA said last week that it would not "seek penalties for noncompliance with routine monitoring and reporting obligations" for an indefinite period of time. As the coalition of groups noted, the order is broad and "relieves polluting and hazardous industries from meeting environmental standards during the coronavirus outbreak, with no end date in sight."

The enforcement suspension will almost certainly lead to …

March 30, 2020 by Daniel Farber
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It's a truism among disaster experts that people who were disadvantaged before a disaster are also the most vulnerable during the disaster. There are aspects of the coronavirus pandemic that fit this mold. Here are some of the disparities we can expect to see.

Rural v. Urban

Much of our economic growth and job opportunity is in cities, which is why young people continually leave the countryside. Life expectancies also tend to be lower in rural areas. Although it's hard to be sure, people in those areas may also be disadvantaged in terms of the coronavirus. The virus is likely to spread more slowly in rural areas because the web of interpersonal interactions is less dense and because rural areas are further from the airports that initially spread the disease. That's a definite advantage. But when the epidemic does …

March 25, 2020 by Sidney Shapiro, Liz Fisher
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Whatever one's political views, the end goal regarding the coronavirus (COVID-19) is the same – to minimize the number of people dying and suffering from severe disease. As commentators have repeatedly noted, we need genuine expertise for that. Beyond involving scientists and physicians in decision-making, there are three steps in determining what that expertise should look like and how we tap into it most effectively.

First, the experts can inform decision-making, even if uncertainty will remain. While we can all agree on the end point – no one dying – how to get there is not clear, even to the experts. Rigorous expert judgment and a respect for science are therefore required. Expertise is developed not just from professional training, but from experience in using that training over and over, building up a store of experience that makes one a better expert.

Ultimately, however, the choices in uncertain situations are …

March 24, 2020 by Darya Minovi
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UPDATE: The Center for Progressive Reform signed a March 31, 2020 letter in support of federal funding for programs aligned with the Equitable and Just National Climate Platform in the COVID-19 stimulus legislation. Among a variety of environmental justice priorities, the request includes cumulative impacts analysis.


As the coronavirus (COVID-19) continues to spread around the globe, the inequalities in American society have come into even sharper relief. People with low incomes who are unable to work from home risk being exposed to the virus at work or losing their jobs altogether. Their children may no longer have access to free or reduced-price meals at school. They are also less likely to have health insurance, receive new drugs, or have access to primary or specialty care, putting them at a greater risk of succumbing to the illness. As with any shock to the system – natural disaster, conflict, and …

March 23, 2020 by Katie Tracy
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In my previous post, I explored five essential elements of an effective response to the coronavirus (COVID-19) pandemic. They included closure of all nonessential businesses, paid sick leave and family medical leave, health and safety standards for infectious diseases, hazard pay, and workers' compensation. Here are five more things we need to protect workers and our economy from the crisis.

Universal Basic Income: To help prevent economic collapse, the federal government should provide a minimum monthly wage to all U.S. workers while the COVID-19 emergency continues. Suggested dollar amounts have ranged from $500 to $2,000 per adult and child, but the result should be no less than $2,000 per individual per month to help families sustain rent and mortgage payments, prescriptions, health insurance premiums, food costs, and other household expenses until the COVID-19 crisis ends.

A March 19 Republican proposal, the Coronavirus Aid, Relief …

March 23, 2020 by Katie Tracy
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As the coronavirus (COVID-19) sweeps the planet, it threatens billions of people and all but promises a global economic recession of uncertain magnitude. As I'm sure you are, I’m deeply concerned about what this means for my family, my neighbors, and my broader community.

I’m particularly concerned about working people who frequently interact with the general public and provide essential services, and thus cannot work from home. At the forefront of my mind are custodial and janitorial workers, grocery clerks, bank tellers, gas station attendants, bus drivers, garbage and refuse collectors, pharmacists, health care workers, and law enforcement officers. These workers are our new first responders in this time of crisis, and it’s our responsibility, personally and as a nation, to do everything within our power to protect them and their families from a potentially deadly virus.

I’m also concerned about protecting from …

March 19, 2020 by James Goodwin
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Earlier this week, a group of 25 Center for Progressive Reform (CPR) Board Members, Member Scholars, and staff signed a joint letter urging Russell Vought, Acting Director of the White House Office of Management and Budget (OMB), to direct federal agencies to hold open active public comment periods for pending rulemakings amid the COVID-19 pandemic. The letter further urges Vought to extend comment periods for at least 30 days beyond the end of the crisis.

Meaningful public participation is one of the bedrock principles upon which our regulatory system is based. Among other things, by enlisting the dispersed expertise of the public, it ensures higher-quality regulatory decision-making, and it imbues the process and its results with a crucial measure of credibility and legitimacy.

This goal of meaningful public participation is most notably enshrined in the Administrative Procedure Act’s requirement that agencies provide members of the public …

CPR HOMEPAGE
More on CPR's Work & Scholars.
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The Peril of Ethylene Oxide: Replacing One Public Health Crisis with Another

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Will COVID-19 'Shock' Workplace Injury Law Like the Railroads of the Early 20th Century?

June 17, 2020

OSHA, Other Agencies Need to Step Up on COVID-19, Future Pandemics

June 16, 2020

Environmental Justice Impacts of COVID-19 on the Delmarva Peninsula

June 15, 2020

Pandemic Heroes Compensation Act of 2020: Preliminary Observations on the Proposed Bill

June 11, 2020

Court Order Okays OSHA Inaction on COVID-19

June 1, 2020

COVID-19 Shows Why We Need to Re-Empower People Through the Civil Courts