The Partisan Transformation of American Public Health Law, 1918 to 2020.

Abstract

In “Politics, Pushback, and Pandemics: Challenges to Public Health Orders in the 1918 Influenza Pandemic” (p. 416), Navarro and Markel clear away an influential but incorrect impression about epidemic policy in US history. Figures like Associate Justice Samuel Alito of the US Supreme Court have asserted that the pandemic regulations of 2020 and 2021 are like nothing the country has seen before. Navarro and Markel, however, identify powerful continuities between state governments’ efforts to contain infection today and such efforts in 1918. The authors document, moreover, parallel cultures of protest a century ago and today against mask mandates, business closures, and school closures. The article particularly focuses on a distinctive new element in our 21st-century pandemic: the rise of novel partisan dimensions in the opposition to regulatory interventions.

Navarro and Markel, however, mostly omit a vital new part of the story that supports and extends their basic argument. In the 21st-century epidemic, the United States is witnessing almost entirely unprecedented partisan pushback against public health measures by the courts. The partisan transformation of the courts is indispensable for anyone aiming to understand the similarities and differences between 1918 and 2020. The influenza pandemic of 1918 produced an outpouring of regulations designed to slow the spread of infection—and protest followed. Crowds inveighed against business closures. Local politicians spluttered against costly closure orders. Lawsuits followed, as they have today.

But there is a crucial difference between the lawsuits of 1918 and those of 2020. A century ago, such challengers sued to force officials to carry out their authority appropriately. Today, legal challengers sue to assert that officials have no authority at all. Plaintiffs in the courts during the 1918 influenza contended that regulations were unfair, that they violated public health law, or that they otherwise exceeded the authority of the actor making the regulation. Sometimes they won. The Supreme Court of New Jersey set aside the conviction of a saloonkeeper in Paterson on the ground that the violation charged was not actually a violation of the relevant statute against public nuisances (Board of Health v. Clayton, 106 A. 813, N.J., 1919). Such victories sent public health officials back to the drawing board to come up with regulatory interventions anew. But mostly courts rebuffed such challenges (e.g., Globe School Dist. No. 1 v. Board of Health, 179, Ariz., 1919, p. 55). Courts were loath to override public health measures when their own expertise was lacking. As the Supreme Court of Kansas put it in 1919, it was “indispensable to preservation of the public health that some administrative officer or board should be clothed with authority to make adequate rules which have the force of law” (Ex Parte McGee, 185, Kan., 1919, p. 14).