Public Health Preparedness & Response: An Exercise in Administrative Law

Responses to epidemics, pandemics, and other biological disasters require multiple coordinated initiatives that combine sophisticated planning, sound emergency management, effective stockpiles, solid geographic information systems, well-developed laboratory surveillance and response, and effective management capabilities. Critical to the noted elements of planning and response is the existence of a legal structure, which underpins the operations of necessary programs. While the law may not be the first public health tool considered in a disaster, it is fundamental to the effective functioning of multiple actors and must be harmonized across jurisdictional lines. This article explores the role of law in pandemics and other biological catastrophes, highlighting broad developments in public health law that have been sparked by recent events. The piece will consider general responses and trends in health disaster management in the context of administrative law with a particular focus on agency responses. Background discussion will also offer a broad overview of the evolution of federal and state laws, highlighting core areas where parallel legal frameworks have developed. The second half of this essay will paint a more detailed portrait of administrative law responses to public health disasters focusing on the Food and Drug Administration (“FDA”), exploring medical countermeasures pursued by this agency to enhance preparedness and response. Key FDA legislation and recent guidance, as well as emergency use authorization (“EUA”) policies, will be analyzed, as a case study of how a pivotal agency has been shaped through law to deal with public health crises.