Who Watches the Public-Health Watchmen?

A n important question that has been raised by the COVID-19 epidemic — but not answered to anyone’s satisfaction — touches on the nature and future of government emergency powers: Quis custodiet ipsos custodes?

Who watches the watchmen?

The obvious — and correct — answer to that question, when it comes to public-health authorities, is: Congress and the state legislatures. Emergency powers do not exist separate from the law; they are exercised under the law and defined in it. Even the Roman dictatorship was constrained by law and custom, and the dictator’s dictates subject to veto, at least during the republican era.

As the Roman example attests, executives cannot be trusted with open-ended emergency powers. But we need not look all the way back to Julius Caesar and Sulla for examples of that. We have Rahm Emanuel’s infamous dictum — “Never let a serious crisis go to waste” — before us, and, to take one more-immediate example among many, President Joe Biden’s proposal to illegally and unconstitutionally extend the COVID-era eviction moratorium, while conceding that it is illegal and unconstitutional.

My pet theory of American democratic politics is that Congress and the state legislatures are held in contempt because they are boring, their operations subject to a tedious committee system and complex rules. Presidents, in contrast, are exciting — they are the superheroes of politics, rushing from this adventure to that and taking very little interest in what they wreck in the exercise of their heroic capacities. The President Show is easy to follow, because it is like an action movie: The main character is always on screen, and the dialogue is largely limited to pithy one-liners and catchphrases. Congress, by comparison, is Bleak House — and then Bleak Senate.

Leana Wen, the physician and former Planned Parenthood kommandant, exemplified this contempt in a recent interview with NPR’s Fresh Air, during which she complained that elected lawmakers are interfering in the work of public-health authorities during the COVID epidemic. “Legislatures have worked to restrict the power of public-health authorities,” she lamented. “Legislatures have restricted the ability of health authorities to do quarantines.” As a result, she says, public health has been “politicized in a way it shouldn’t be.”

The easiest way to see Wen’s position evaporate is to take it seriously. What would it look like if we had public-health authorities whose power and scope were not restricted by legislatures? What would it look like if there were no legal restrictions on the power of public agencies to force people into quarantines? Of course legislatures will restrict and constrain such emergency powers — they are the source of those powers, which are granted to public agencies under the law.

You would think that this would be obvious, but it isn’t.

One of the differences between the conservative approach to politics and the progressive approach is that conservatives generally place more value on procedure. (Here it is necessary to note that not every cable-news maniac on the scene who calls himself a conservative is in any meaningful sense that.) Progressives tend to be more outcome-oriented. Ensorcelled by what Thomas Sowell calls the “vision of the anointed,” they believe that they know what is right and that this moral illumination confers upon them certain privileges — that they enjoy by right whatever power is necessary to do good as they see it. You will find this expressed in Theodore Roosevelt’s conception of the president as the heroic custodian of the national interest and the public good, and in Woodrow Wilson’s contempt for the Constitution and his vicious suppression of dissent. You saw it in Barack Obama’s threat: “If Congress won’t act, I will.” And you saw it in Donald Trump’s almost complete disregard for Congress, which was so fundamental a part of his approach to the presidency that he hardly even worked to see his own priorities enacted by the legislature.

You see it outside of government as such, too. Dr. Wen is famously high-handed — she was dismissed from Planned Parenthood after complaints about her “confrontational management style,” which is to say that she was too savage for people who make their money butchering living children — and she is far from unrepresentative of the medical profession, whose members reliably conflate their area of genuine expertise (medicine) with other kinds of expertise, most commonly in public policy and public administration. But even the best medical education does relatively little to prepare one for non-medical questions and challenges — particularly political questions and challenges, which require an entirely different approach from that which is relied upon in medical analysis. That’s how you get the incoherent complaints that certain policy questions are “politicized” when they are always and everywhere the result of political processes. Complaining that public-health policies are politicized is complaining that water is wet.

Doctors enjoy practically princely powers in their own sphere. (You can detect this in their contemptuous disregard for their patients’ time.) CEOs and board chairmen enjoy similar power at the pinnacles of their particular heaps. But doctors have a long and sorry history of failure when it comes to health-care policy, because medical policy is not medicine, just as CEOs who promise to “run government like a business” inevitably founder when they discover, to their vexation and astonishment, that government is not a business. “Nobody knew that health care could be so complicated,” President Trump famously complained. But everybody knew — if they knew.

Contra Dr. Wen, the question is not whether legislatures will be involved in decisions about epidemic policy, quarantines, or vaccine mandates. The question is whether they will make good decisions, and how we can go about seeing to it that they proceed with some degree of intelligence and responsibility.