Consider This from NPR - The 1944 Law That Gave The CDC Its Powers, Explained

Episode Date: April 28, 2022

The Centers for Disease Control and Prevention's mask mandate on planes, trains and buses ended earlier this month, and it came down, in part, to a judge's interpretation of the word "sanitation." U.S. District Judge Kathryn Kimball Mizelle voided the mask requirement, citing a 1944 law that gives the CDC power to stop the spread of communicable diseases through measures like inspection, fumigation, disinfection and sanitation.Lawrence Gostin is a professor of public health law at Georgetown University. He explains what the 1944 Public Health Service Act did and why he thinks the judge's interpretation could have an impact on the United States' ability to respond to future health crises. Additional reporting by NPR's Pien Huang also appeared in this episode.In participating regions, you'll also hear a local news segment to help you make sense of what's going on in your community.Email us at [e-mail] more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

This message comes from Indiana University. Indiana University performs breakthrough research every year, making discoveries that improve human health, combat climate change, and move society forward. More at iu.edu forward. Sanitation. The fact that the Centers for Disease Control and Prevention's mask mandate on planes, trains, and buses ended earlier this month, well, it came down in part to an interpretation of that word, sanitation. In a statement, the CDC defended the mask mandate, saying... U.S. District Judge Katherine Kimball-Mizell voided the mask requirement for all public transit. She cited a law that gives the CDC power to stop the spread of communicable diseases

through measures like inspection, fumigation, disinfection, and sanitation. But according to Lawrence Gostin, a professor of public health law at Georgetown, She looked at the dictionary definition of sanitation, and that didn't include masks. And that was the court's reasoning. The Biden administration is appealing the decision. Although it's not clear if the mandate would be immediately reinstated if the government wins that appeal. It's not the first blow to a pandemic-era CDC rule. Last August, the Supreme Court struck down

its order that extended a moratorium on evictions. Lindsay Wiley, a health law professor at UCLA, said the eviction ban was a bit of a stretch for the CDC. A lot of the general public and a lot of federal judges feel like, you know, this isn't exactly what CDC's role should be. This is something state and local governments are doing, and it should really be left to them. Now, to understand what the CDC's authority actually is, you have to go back to 1944. That's when the U.S. passed the Public Health Service Act, the law cited by the Biden administration and Judge Mizell for the mask mandate. This is a law created in 1944 that gave the Public health service, because CDC wasn't even created then, the ability to prevent the interstate or international transmission of an infectious disease.

Gostin says the country was still thinking of the 1918 flu pandemic. They realized that infectious diseases were one of the most serious threats. And they also realized that states acting alone, you know, can't prevent the spread of an infectious disease. So it gave the public health service that power. And soon after the CDC was created, that power was then delegated to the CDC. Consider this. During the COVID-19 pandemic, the CDC has used the powers granted by a long-standing

law to issue broad public health orders. Now that those orders are being overturned, what could the agency's authority look like in the future? From NPR, I'm Ari Shapiro. It's Thursday, April 28th. This message comes from WISE, the app for doing things in other currencies. Send, spend, or receive money internationally, and always get the real-time mid-market exchange rate with no hidden fees. Download the WISE app today or visit wise.com. T's and C's apply. It's Consider This from NPR. Health law professor Lawrence Gostin says the Public Health Service Act does not specifically mention masks.

But it wouldn't mention masks because a Congress at any given time can't predict what future crises will be. And he doesn't agree with Judge Mizell's focus on the definition of sanitation as a basis for ending the mask mandate. In 1944, in fact, throughout America's history, you know, certainly throughout the 19th and 20th century, the term sanitation had a particular meaning, and it was a meaning of hygiene, public health. It had a very broad understanding. If the judge's interpretation that Congress never authorized the CDC to require masks in a pandemic is upheld on appeal, Gostin thinks it could have an impact on the country's ability to respond in future health crises. I think it would really handcuff the CDC

when the next health crisis hits. And if the CDC is handcuffed, we're not going to get the protection we need and deserve as a nation. I asked Gostin if there was much debate over what the federal government's authority should be back when the Public Health Service Act was first introduced in the 1940s. No. You know, I think that there was a, you know, a very strong national agreement, Republicans and Democrats alike, that we needed a strong public health agency and that while most public health

powers do reside at the state and local level, what a state or a city can't do is prevent the spread of diseases across the United States or, in fact, coming from abroad to our nation's borders. And I think that's why the Public Health Service Act gave the federal government very, very broad powers to prevent the introduction into the United States and the transmission of an infectious disease across the United States to do anything it deems necessary to protect America against the interstate or international spread of a dangerous infectious disease. And of course, by definition, COVID-19 meets that standard. You believe that the judge misinterpreted this law. Do you also believe that the law, which was passed in 1944, needs updating? Is it out of step with the times? Does

it fall short in some ways? Yeah, I mean, that's a good question. And I've been, you know, on the National Academy of Sciences Committee reviewing exactly that. So, you know, the answer to that is, yes, I would like to see the CDC's regulatory powers modernized and that we should learn the lessons from COVID-19. Modernized can mean so many things. What does that need in the next health crisis. If you think about the air travel mask mandate, it's an almost quintessential power that the CDC should have because you've got somebody boarding a flight in New York City and flying to Los Angeles. There's no state that can protect us.

And so that's where you would draw the line between that kind of a policy and something like the policy in Shanghai that says people can't leave their houses at all if there's a COVID outbreak or something like that. Absolutely. I do not believe that CDC should have the power to reach into a state, regulate an individual, regulate a business, so York to New Jersey or from New Jersey to California. And that's why we need a national public health agency. And I do think we should be modernized. You know, I want to see a federal agency that's, you know, strong, powerful, decisive, uses science and protects us where states can't. Lawrence Gostin, University Professor of Global Health Law at Georgetown and Director of the World Health Organization's Collaborating Center on National and Global Health Law. It's Consider This from NPR. I'm Ari Shapiro.