Rule of Law vs. Rule of Experts in Public Health Emergencies
The COVID-19 pandemic laid bare the existence of certain technocratic features of American government. For better or worse, expert agencies were given wide degrees of latitude to set public health policy. Many of the policies that governed us during the COVID era were the result of rule by expert, of a kind. For example, the initial lockdowns of March 2020 were an instance of experts advising executives to follow a particular course of action and those executives doing so. The issue of expertise and bureaucratic discretion was also recently highlighted by the Supreme Court overturning the Chevron deference doctrine in the case of Loper Bright Enterprises v. Raimondo. Footnote #1 content: Loper Bright Enters. v. Raimondo, 603 U.S. 369 (2024). Take the CDC’s federal mask mandate as an example. In her ruling in the case of Health Freedom Defense Fund v. Biden, which placed an injunction on the mask mandate, Judge Mizelle argued that the CDC’s interpretation of the law would delegate vast public health powers to the agency, if it were applied consistently, and that this is not the intention of the law that the CDC cited in favor of its mask mandate. Footnote #2 content: See Health Freedom Def. Fund v. Biden, 599 F.Supp.3d 1144, 1165 (M.D. Fla. 2022). In her ruling, Judge Mizelle argues: “The government interprets ‘sanitation’ and ‘other measures’ to include traditional techniques that impede the spread of disease. (Doc. 45 at 24; Doc. 50 at 7.) One definition it relies upon is even broader, defining ‘sanitation’ as the ‘applying of measures for preserving and promoting public health.’ If Congress intended this definition, the power bestowed on the CDC would be breathtaking. And it certainly would not be limited to modest measures of ‘sanitation’ like masks. It would also justify requiring that businesses install air filtration systems to reduce the risks from airborne contagions or install plexiglass dividers between desks or office spaces. So too, a power to improve ‘sanitation’ would easily extend to requiring vaccinations against COVID-19, the seasonal flu, or other diseases. Or to mandatory social distancing, coughing-into-elbows, and daily multivitamins. In short, ‘the sheer scope of the CDC’s claimed authority under §[264(a)] would counsel against the Government’s interpretation.” (citations omitted). In this case, there is a clear tension between rule of law (assuming that Judge Mizelle is correct about the law) and rule by experts, who wanted to impose the mask mandate for public health. These cases highlight a well-known conflict in liberal political philosophy between the rule of law and the rule of experts. I am particularly interested in how this dynamic plays out in public health emergencies, and that will be the focus of this paper.
To risk a platitude, we should have the rule of law. That’s a premise I think virtually all will agree with. The use of expert rule in public health emergencies (or emergencies generally) is a threat to the rule of law. Unless the experts are simply going to tell us to follow the law as it is written (in which case there is no need for them), then expert rule would conflict with rule of law. Whether for good or ill, expert rule involves experts ruling by their own will and desires rather than by the law itself. To be very clear, I am not assuming that experts are poorly intentioned or interested only in their own gain. I am assuming that most would-be expert rulers genuinely want to promote the common good and believe that their intervention against the rule of law would accomplish this. In a public health emergency, which is more just, rule of the law or rule of experts?
My thesis in this paper is that liberals should adopt a very strong presumption in favor of the rule of law during a public health emergency and should only turn to rule by experts under very narrow, and extremely rare, conditions. In addition to defending this thesis, this paper offers a general framework for when liberals should permit violations of the rule of law in favor of rule of experts during public health emergencies.
The paper proceeds as follows. In Section I, I define some thorny theoretical issues about the rule of law that will clarify what, precisely, I mean by rule of law and rule of experts in public health. In Section II, I advance several arguments in favor of the rule of law in public health. These arguments will be the following: (1) the democracy argument, (2) the autonomy argument, (3) the respect for rational planning argument, and (4) the precedent argument. These arguments are intended to establish the claim that liberals should endorse a very strong presumption in favor of not violating the rule of law during a public health emergency. In Section III, I ask when this very strong presumption in favor of the rule of law may be overridden in favor of rule by experts. I outline a narrow set of conditions that must obtain for this to be the case. My own view is that these conditions very rarely, if ever, obtain in the real world. But, if the reader disagrees with me on this point, the general framework is still useful. Footnote #3 content: This argumentative strategy of suggesting that liberals should have a strong presumption in favor of liberal values but which is ultimately defeasible in some cases, is similar to my past work in Samuel Director & Christopher Freiman, Civil Liberties in a Lockdown: The Case of COVID-19, J. MED. & PHIL. 48, 613–23 (2023) and in Samuel Director, Public Health Officials Should Almost Always Tell the Truth, J. APP. PHIL. 40, 951–966 (2023).
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