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Public Officials Find Their Hands Tied as They Confront Winter COVID Surge

States of Crisis with Dan Vock
Public Officials Find Their Hands Tied as They Confront Winter COVID Surge
By Daniel C. Vock • Issue #26 • View online
Public health experts have long warned that the winter would be especially hard, if the country did not get the coronavirus in check before people headed indoors and hosted gatherings for holiday parties.
But keeping the winter surge under control may be harder than even they thought. Not only do public officials have to contend with a tougher environment, officials find that their legal powers and their popular standing are eroding at precisely the wrong time.
That’s the story this week, as “States of Crisis” marks six months of delivering news, insight and analysis about these tumultuous times.
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Onto the news…

Officials Have Fewer Options to Deal With the Biggest COVID Surge Yet
Several factors, from a recent U.S. Supreme Court ruling to the hypocrisy of prominent politicians, could make it harder for state and local officials to cope with this winter’s COVID-19 surge. Here are a few factors that could stymie their response:
Fewer vaccines (for now)
State officials must now deal with the reality that the hoped-for shipments of COVID vaccines will be much smaller than they originally expected.
“This is far less than what is needed for Maine and proportionally for other states as well,” Maine Gov. Janet Mills, a Democrat, said last week, after learning that the state’s initial supply of vaccines would be a third of initial projections.
The delays are largely the result of supply chain issues for Pfizer and Moderna, the first two companies to apply for FDA approval to distribute COVID-19 vaccines, reports The Washington Post. Production of the vaccine is “as complicated as the research-and-development piece,” a Pfizer spokesperson told the Post.
All told, federal officials expect the companies to ship enough vaccines for 20 million people to get the two shots they need for immunity. That’s far short of the “hundreds of millions” a Trump administration official promised earlier
Another potential wrinkle in vaccine distribution is an ongoing feud between New York Gov. Andrew Cuomo and President Donald Trump.
New York is one of a handful of states (including California, Nevada and Oregon) that plans to review the effectiveness of the COVID-19 vaccines after the FDA grants its approval. New York officials say they don’t anticipate the review will take much longer than a day, but Trump threatened on Twitter to withhold the vaccine from New York because of the review. Cuomo, in turn, promised to sue the Trump administration if that happened.
Public officials setting bad examples
As COVID fatigue grows, many public officials have undermined their own authority by not abiding by their own public health restrictions. The mayors of Austin and Denver both caused a stir by traveling for Thanksgiving, even as they told their residents not to do the same.
California Gov. Gavin Newsom and a slew of other public officials in the state have been caught in similar controversies. Newsom and San Francisco Mayor London Breed, in fact, dined indoors at a famous (and expensive) Napa Valley restaurant called French Laundry, on successive nights. Both admitted that they used bad judgment. “I made a bad mistake,” Newsom said. “I need to preach and practice, not just preach and not practice.”
Those revelations came to light as most of California is under new stay-at-home orders because of an unprecedented rise in cases there.
Congressional inaction (still)
People around Capitol Hill often describe another round of federal coronavirus relief as a “stimulus” or even a “rescue” package. But the reality is that the package is not just about economic help. Federal aid can also be crucial to public health.
The negotiations include straight-up health spending for things like distributing vaccines. But they also include provisions that could affect people’s behavior. For example, Congress could encourage unemployed people to stay in their homes if they included an extension of an eviction moratorium or more generous unemployment benefits. Aid to state and local governments could prevent layoffs of government health workers.
But discussions on the Hill are still mired in their pre-election quagmire. Last week, a bipartisan group of lawmakers offered a temporary measure for coronavirus relief, in the hopes of ending the standoff between the Democrats who control the House and the Republicans who control the Senate. While Democrats largely supported the effort, Senate Majority Leader Mitch McConnell responded with a GOP plan that Democrats found inadequate.
President-elect Joe Biden has said that passing a coronavirus relief package is his top priority, and Congress should act on that even before he’s sworn in on Jan. 20. But that hasn’t altered the political fundamentals enough for states and local governments to expect any federal help soon.
Legal limits
Just hours before Americans sat down to celebrate Thanksgiving, the U.S. Supreme Court handed down a consequential ruling that scaled back the ability of governors to limit the size of religious gatherings to prevent the spread of deadly disease.
The immediate consequences of the 5-4 decision were limited, but it marked a potential shift in how the high court would evaluate public health measures in the future.
The actual question in the case before the high court was whether the justices should impose a temporary injunction that would block New York’s coronavirus rules for religious institutions, while two underlying cases are on appeal. To complicate matters, New York lifted the attendance restrictions while the Supreme Court was considering the case.
But as messy as the decision was, the result was that conservatives who earlier this year found themselves on the losing side of similar cases were now on the winning side.
The shift occurred, of course, after Justice Amy Coney Barrett filled the vacancy created by Justice Ruth Bader Ginsburg. It meant that Chief Justice John Roberts, a conservative, was no longer the swing vote on the increasingly conservative court. In fact, he was in the minority, sniping with a fellow Republican appointee, rather than controlling the outcome of the case.
To the newly emboldened conservatives, the challenges brought by a Roman Catholic diocese and two Orthodox Jewish synagogues showed a clear example of religious institutions being singled out for harsher treatment than other groups.
“Members of this court are not public health experts, and we should respect the judgment of those with special expertise and responsibility in this area. But even in a pandemic, the Constitution cannot be put away and forgotten,” an unsigned order from the majority wrote.
The majority argued that Cuomo’s orders unfairly targeted religious institutions. All of them in the hardest-hit areas of the state, for example, had to limit attendance to 10 people per service, regardless of the capacity of their facilities. But most of the churches and synagogues that asked the high court for help could seat 500 people, and some could hold more than 1,000. Meanwhile, the majority noted, other types of facilities did not have to abide by such strict restrictions. Stores, certain factories and transportation facilities could admit as many people as they saw fit.
The majority also concluded that people who could not attend worship in services could be irreparably harmed. Catholic congregants, for example, could not receive communion while observing Mass at home. Orthodox Jewish worshipers, likewise, could not fully participate in their services.
“The restrictions at issue here, by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty. Before allowing this to occur, we have a duty to conduct a serious examination of the need for such a drastic measure,” the majority held
Roberts seemed troubled by aspects of how the rules applied to religious institutions, but he argued that the court shouldn’t issue an injunction when the churches and synagogues that brought the challenge were no longer subject to those rules. (As the situation improved in those areas, Cuomo moved those regions into a less restrictive set of rules.)
But Justice Stephen Breyer, a member of the court’s liberal bloc, said the high court was not in a good position to judge whether New York’s rules were unduly harsh toward religious institutions.
“The elected branches of state and national governments can marshal scientific expertise and craft specific policies in response to ‘changing facts on the ground.’ And they can do so more quickly than can courts. That is particularly true of a court, such as this court, which does not conduct evidentiary hearings,” he wrote.
“It is true even more so where, as here, the need for action is immediate, the information likely limited, the making of exceptions difficult, and the disease-related circumstances rapidly changing,” Breyer added.
Justice Sonia Sotomayor, a New York native, went even further. She said that New York’s regulatory scheme had effectively lowered the coronavirus infection rates in Brooklyn, and that is why the state was able to loosen restrictions on religious institutions.
“Yet the court grants this application to ensure that, should infection rates rise once again, the governor will be unable to reimplement the very measures that have proven so successful at allowing the free (and comparatively safe) exercise of religion in New York,” she wrote in a footnote.
She pointed to briefs that medical experts filed with the court saying that the coronavirus spread most easily in large groups of people gathering, speaking and singing in close proximity indoors for extended periods of time. The state targeted those types of activities, not just with religious services, but also for movie theaters, sports venues and concert halls, Sotomayor said.
“Justices of this court play a deadly game in second-guessing the expert judgment of health officials about the environments in which a contagious virus, now infecting a million Americans each week, spreads most easily,” she warned.
While the underlying case is still on appeal, the effect of the November ruling won’t take long to feel. Last week, in fact, the justices ordered a trial court to reconsider an earlier ruling it made siding with the state of California over a Pasadena church.
This time, the high court instructed, the trial judge should consider the Supreme Court’s latest ruling on religious restrictions.
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Daniel C. Vock

A pandemic. Recession. Civil unrest. State leaders are grappling with several enormous crises all at once. We explore how they're responding.

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