What happens when elected officials use preemption to usurp public health authority, and what can be done about it?
This post is the second in a blog series that explores how preemption has served as a double-edged sword in either supporting or undermining efforts to advance health equity. We explore how some states have limited public health authority and what must be done to rebuild a public health infrastructure that centers equity.
Public health professionals are trained to protect people’s health—from controlling the spread of infectious disease to ensuring the water, air, and food are safe. When the pandemic hit in early 2020, state and local public health authorities acted swiftly to stop the spread of a novel, contagious virus. Within months, 39 states had issued explicit stay-at-home orders and 20 had travel restrictions in place. To ensure safe living conditions amid dangerous outbreaks and the economic downturn, some states and localities even suspended evictions and water and utility shut-offs.
Stripping authority from public health officials endangers lives
But more and more, policymakers are using preemption to strip public health officials of their powers, preventing them from protecting people and their communities. Preemption is when a higher level of government, such as a state legislature, restricts the authority of a lower level of government, such as a city council. Historically, the federal government has used preemption to enforce states’ compliance with federal civil rights laws.
But over the last decade, state governments have been preempting local governments on issues like minimum wage, paid sick and family leave. Unfortunately, the COVID-19 pandemic brought this to a head. As a result, many local governments lack the authority to enact laws and policies that can also reduce health inequities among those who are disproportionately harmed by the impacts of COVID-19—women, people of color, and workers in low-wage jobs.
In many states—Arizona, Florida, Georgia, Mississippi, South Carolina, Tennessee, Texas, and West Virginia, among others—statewide stay-at-home orders established a regulatory ceiling, preventing local governments from imposing stricter requirements. Take Arizona, where the governor issued an executive order prohibiting any county, city, or town from issuing any order or regulation “restricting persons from leaving their home due to the COVID-19 public health emergency.”
Some states didn’t have any statewide stay-at-home orders in effect but still preempted local governments from issuing their own orders, which created a regulatory vacuum. For example, although the Iowa Governor Kim Reynolds did not issue a statewide stay-at-home order, she and the state attorney general informed local officials that cities and counties lack the authority to close businesses or order people to stay at home.
And in places where local governments implemented measures to protect public health on the advice of infectious disease control experts, state officials responded in threatening and punitive ways. For example, Georgia Gov. Brian Kemp sued Atlanta’s then-mayor, Keisha Lance Bottoms, when she tried to protect city residents with a mask mandate.
The results? During the Delta surge, states that resisted public health protections had much higher numbers of preventable deaths. Between August and December 2021, Florida experienced 29,252 excess deaths, compared to New York’s 8,786—more than triple. And states such as Georgia and Florida experienced longer surges, greater economic disruption, and worse health outcomes than other states like New York and New Jersey, where stronger masking and vaccination policies existed.
What can be done to strengthen public health authority?
To counter the trend of preemption upending public health efforts, here are suggestions for health officials, schools of public health, and state and federal governments to help strengthen public health authority and advance health equity:
Make public health visible—to the public and policymakers
Local public health authorities play myriad roles in protecting and promoting community health—not just during emergencies, but all the time. They set up testing and vaccination clinics and fight infectious disease, but they also address water and air pollution, develop strategies to decrease tobacco use, reduce obesity and diabetes, and work with other social service agencies to keep communities healthy. But in many communities, people aren’t aware of everything their public health agencies do for them. By engaging community members in their work—through health fairs, working with the community to identify health issues of importance to them, and other forms of outreach—public health officials can build community support, which in turn will help them better meet their community’s needs.
Teach public health law to public health students
The COVID-19 pandemic has underscored the need for health officials to be conversant in public health law. Schools of public health should incorporate law into their curricula, so that graduates are better equipped to deal with issues like preemption and threats to public health authority. Furthermore, agencies should have funding for and access to law expertise.
Public health solutions must center equity
As the country recovers from the health and economic impacts of COVID-19, states can use preemption to advance health equity by setting floors for minimum health standards. For example, California and Oregon have preempted certain local laws to encourage more affordable housing. States should encourage local governments to build on these minimum standards in ways that serve the people’s needs.
Increase funding for public health
As public health officials work to combat preemption misuse and protect the health of their communities, they must have strong funding and infrastructure supporting them. For years, public health in the United States has been consistently and drastically underfunded. Even though the Administration’s proposed 2023 budget includes some targeted investments in public health, there needs to be an adequate and stable funding stream. This includes investments at the local level and beyond the immediate crisis of the COVID-19 pandemic.
Incentivize the workforce
Over the last decade, local public health departments have lost more than 56,360 employees. One report estimates that an additional 80,000 full-time workers are needed to adequately staff the public health workforce. Supports like loan repayments, continued learning, and a modernized public health curriculum would go a long way to recruiting and retaining the next generation of public health leaders.
COVID-19 has underscored the importance of having a strong, modern public health system. Now, more than ever, public health officials must be able to do their jobs. The misuse of preemption is preventing them from doing that. To advance health equity, preemption must bolster public health authority—not undermine it.
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About the Authors
Monica Hobbs Vinluan is a senior program officer at the Robert Wood Johnson Foundation.
Sarah de Guia is the chief executive officer of ChangeLab Solutions.