Planning for Pandemic: A New Model for Governing Public Health Emergencies:

I. INTRODUCTION Imagine the following scenario: The Centers for Disease Control confirms the appearance of a heretoforeunknown virus. It appears highly contagious since it is spreading easily between human beings. At this initial stage, the largest cohort of victims is youth in their late teens. There is no geographic locus of the disease or single identifiable index case from which the virus's origin can be determined. The disease is independently prevalent in many geographic areas, particularly among those living in the inner cities of major metropolitan areas in the United States and in some of the densely populated immigrant enclaves in European cities. At this point, the mortality is uncertain although in its early phase it is at least as deadly as a seasonal flu. It is the end of May: young people are dreading final exams, anticipating their high school and college graduations, and looking forward to the many end of the year celebrations. The weather is getting warmer, and the public pools are about to open. Despite the hot weather, the prevalence of the disease is not significantly waning. Americans are nervous. They want answers. They expect their government to protect them. It does not take much imagination to recognize that a contagious pandemic,1 whether arising naturally or as the consequence of a bioterrorist attack, challenges the constitutional protections that we expect in normal times. It takes a great deal of imagination, however, to envision all the scenarios and imponderables that may arise during an extended threat of a highly contagious, potentially deadly disease. Moreover, it is beyond our imaginative capacity to predict all the possible human actions, reactions, and interactions that may occur as a crisis unfolds. While we can model different emergency situations and contingency responses, we must also recognize our limitations.2 This lesson was dramatically illustrated when overreliance on models that failed to account for human panic reactions led to the financial meltdown of 2008.3 The opening scenario above highlights not only the pervasive uncertainty of a pandemic threat but also the competing human interests that confound official decision-making. Americans expect their government4 to protect their general welfare, health, and safety, but they are deeply suspicious of government actions that disrupt their daily routines. Sudden or major changes rather than incremental action with marginal impact instinctively incline majorities towards opposing change.5 Commitments to equal opportunity and non-discrimination will often weaken when the protections for oneself and family can only be achieved by disparately disadvantaging a minority population.6 Even as citizens press public officials for information, they distrust the government's ability to be honest and transparent. Thus they are likely to greet government recommendations or directives with skepticism, especially if compliance entails risk of new personal sacrifice.7 Government officials face equally vexing questions in the absence of information. Is the crisis sufficiently threatening to necessitate action that in normal times would be legally impermissible? Should the government act uniformly to protect an entire community or act selectively even though it will impact the rights and interests of individuals and groups differently? Is the marginal protection of the community's wellbeing achieved by the derogation of individuals' liberty too high a price to pay?8 Since the terrorist attacks on 9/11 policymakers, scholars, and citizens have struggled with the question of whether our government can respond to a serious national threat of unknown dimensions within our constitutional framework. Put another way, the question we confront in the twenty-first century United States is whether we can preserve constitutionalism during a national emergency when protection of national health and security clashes with respect for human rights. …