Samuel R. Bagenstos (University of Michigan Law School) has posted Reconstructing the Public Health State (68 William & Mary L. Rev. ___ (forthcoming 2027)) on SSRN. Here is the abstract:
The American public health system is in crisis. This Essay, presented as the 2026 Wythe Lecture at the William & Mary Law School, argues that the crisis is not merely a story about Robert F. Kennedy, Jr., about political polarization and opportunism, or about the genuine missteps of public health officials during COVID-19 and before. It is, critically, a story about law.
The Essay first shows how law built the public health state. Through the Public Health Service Act and a web of related statutes, Congress created institutions for knowledge generation, disease surveillance, and regulation, and it embedded within them a structure of accountable independence—giving professionals the insulation to generate knowledge and offer unvarnished advice, while keeping the inherently political tradeoffs of public health subject to democratic control. Peer review, expert advisory committees like ACIP and the USPSTF, and cross-cutting scientific-integrity statutes all served this design.
The Essay then documents how that edifice is crashing down. The second Trump Administration has throttled knowledge generation and dissemination through mass grant terminations, procedural sabotage of NIH grantmaking, politicized keyword screening, and the suppression of scientific findings. It has subverted science in regulatory decisions, most vividly through Secretary Kennedy’s purge of ACIP, the bypassing of that committee to slash the childhood immunization schedule, and the politicization of FDA vaccine review.
Most importantly, the Essay shows how law has enabled this demolition. Supreme Court shadow-docket decisions effectively stripped district courts of jurisdiction to provide meaningful, immediate relief against unlawful terminations, relegating grantees to slow, backward-looking Tucker Act damages after the harm is done. And the Court’s extreme unitary executive jurisprudence has overridden statutory protections of scientific independence. That theory rests on an impoverished conception of democracy—one that locates accountability in a single, weakly accountable individual rather than in Congress, in agencies’ accumulated democratic warrant, and in the multiple levers of political control the people have chosen over time.
Finally, the Essay offers avenues for rebuilding. Reconstruction will require a frontal challenge to the Court’s unitary executive project, pursued through new legislation, appointments, and possible judicial reform. The Essay calls for new structures of accountable independence—such as professional qualification requirements, mandatory expert consultation, dissent channels, strengthened whistleblower and inspector-general protections, and expanded public participation—paired with the transparency and candor that scientific legitimacy demands, a lesson the COVID-era failures on masking, airborne transmission, and vaccine messaging make plain. And it argues for treating federalism not as an obstacle but as a source of resilience to guard against the federal government becoming public health’s single point of failure. These changes are essential if public health is to resume its work of helping everyone live longer, better lives.
Highly Recommended!
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