Rule of Law

Congressional Oversight in the Midst of Coronavirus

As the number of domestic cases of coronavirus continues to increase, so too does the evidence that the Trump Administration has gravely mismanaged the early response to this public health crisis.  But rather than reflect on how best to address this crisis going forward, the President has instead decided to blame his predecessor for at least some of the problems the nation is currently facing.  Fortunately for the American people, determining how we got to this place—and what should be done about it—is not a job for the President alone.  Congress has historically exercised its broad oversight authority to investigate public health crises and the executive branch’s responses to them, and it can do the same here.

It’s been over two months since the first instances of coronavirus were reported, and over a month since the World Health Organization declared coronavirus a “global emergency.”  Thus far, the Trump Administration’s response has hardly taken this “global emergency” seriously.  From President Trump calling the virus a “new hoax” at a campaign rally, to naming Vice President Mike Pence (whose prior record of addressing public health crises doesn’t inspire confidence) to oversee the government’s response, to preventing the head of the National Institute of Allergy and Infectious Disease from speaking without White House approval, Americans can reasonably worry about the Administration’s response to this crisis.

Fortunately, Congress is starting to investigate, and it’s right to do so.  Congress has a “broad” power to investigate because, as the Supreme Court has recognized, it “cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change.”  And there are numerous instances in the past of Congress using its investigative powers to investigate public health epidemics in an effort to determine how the nation could best address them.

For example, in May 2003, there was an outbreak of a viral respiratory illness called Severe Acute Respiratory Syndrome (SARS).  SARS was responsible for 461 deaths across 27 countries, with 61 cases in the United States, though none of those lead to death.  In response to the crisis, both House and Senate committees conducted hearings on the effectiveness of state and local responses to SARS.  One hearing involved testimony from the U.S. General Accounting Office (GAO) on its examination of the “preparedness of state and local public health agencies and hospitals for responding to a large-scale infection disease outbreak.”  Based on its study, GAO recommended that “[t]he public health response to outbreaks of emerging infectious diseases such as SARS could be improved by the completion of federal and state influenza pandemic response plans that address problems related to the purchase, distribution, and administration of supplies of vaccines and antiviral drugs during an outbreak.”

Similarly, in June 2009, the World Health Organization declared that the H1N1 swine flu outbreak was an influenza pandemic.  By July, there were almost 100,000 cases and more than 400 deaths across all continents except Antarctica.  Congress held thirteen hearings on the swine flu in order to keep Congress “informed about all efforts taking place to protect our citizens and our families [from swine flu].”  Several of these hearings focused on the importance of vaccines to combat swine flu.  For example, at a Senate Health, Education, Labor and Pensions Committee hearing, the Director for the National Institute for Allergy and Infectious Diseases explained that “[v]accines are . . . essential tools for the control of any form of influenza” and  “antiviral medications also are an important counterpart.” Shortly after, Congress approved nearly $8 billion to fight the epidemic, with about $6 billion set aside for “vaccine purchases and related supplies, including syringes, needles, antivirals and other support.”

Congress has also used its oversight authority to investigate how effectively, or not, the executive branch has responded to public health crises.  For example, in the early 2000s, there were 36 million people living with human immunodeficiency virus (HIV) and acquired immune deficiency syndrome (AIDS), and 22 million deaths from the disease worldwide.  To combat this, President George W. Bush launched the President’s Emergency Plan for AIDS Relief (PEPFAR), which has provided more than $90 billion in funding to fighting HIV/AIDS across the world.  While PEPFAR was overseen by a U.S. Global Aids Coordinator, Congress also conducted oversight of PEPFAR in the form of “public hearings [and] review of reports . . . that describe . . . how appropriated funding has been spent and documenting progress toward congressionally-mandated targets for PEPFAR efforts.”  These reports allowed Congress to determine how successful (or not) these programs were.

Likewise, in 2014, Congress responded to the West African Ebola outbreak, which resulted in roughly 11,000 deaths.  Five congressional committees held eight public hearings on the outbreak. During those hearings, many members of Congress discussed the need for more resources from the federal government, and Congress subsequently appropriated emergency funding to various agencies.  As part of this appropriation process, Congress required monthly reports from the U.S. Agency for International Development and quarterly reports from the Department of Health and Human Services on how the funding was being utilized.

This small sampling of past instances of congressional oversight in the face of major public health crises can serve as a model for this Congress in the days to come.  After all, by using its broad oversight authority, there is surely much Congress could learn about what policies were most effective in responding to past pandemics, as well as where this Administration’s early responses to this outbreak went wrong and if and how Congress can help.  Here are just a few examples.

First, the original coronavirus test included a faulty component, and as of March 1, the problems with this test had not been resolved.  As a result, the United States has tested only hundreds of people for the virus, while South Korea, for example, has tested tens of thousands.  Add to that new reports that the Administration will not be able to meet its “promised timeline of having a million coronavirus tests available by the end of the week.”  Congress could hold hearings to investigate these problems and why testing in other countries has so far outpaced testing here.

Second, after coronavirus broke out on a cruise ship with Americans on board, the “State Department and a top Trump administration health official” overruled CDC objections to flying individuals infected with the virus back to the United States alongside individuals who had not been infected.  Senator Warren has already sent a letter demanding answers to the questions raised by this troubling episode.  Congress could follow up with hearings with the relevant officials to figure out what happened then, what process is currently in place for resolving such disputes, and what the best protocols would be going forward.

Third, at a House Hearing last week, Health and Human Services Secretary Alex Azar acknowledged “that a coronavirus vaccine might not be affordable for all Americans and that the Trump administration could not cap its price because of the need for private sector investment in . . . research.”  Some Senators have already sent a letter calling on the Secretary to “commit . . . that anyone who needs it will be able to afford a vaccine for coronavirus.”  Congress could also hold hearings to try to figure out what policies must be put in place to ensure that happens and to force the Administration to explain what, if anything, it is doing to ensure that any coronavirus vaccine is affordable for all.

Fourth, while the Administration sent a supplemental budget request to the Hill seeking “additional money to fight the coronavirus,” that request would also have given the Administration “enhanced authority to move around federal funds.”  Early reports described this request as a “non-starter with Democrats, who are already livid over White House moves to reshuffle existing federal funds toward the border wall.”  In the end, the House and Senate passed a much larger emergency supplemental funding bill.  Congressional hearings could help determine how best to appropriate funds in the months ahead and could also monitor the Administration’s use of the appropriated funds.

In short, by bringing in both Administration officials and public health experts from outside the Administration, Congress can get answers to key questions about how this virus works, what testing should look like, what other safety protocols should be put into place, and how else Congress can help address this “global emergency.”  As the death toll from coronavirus continues to rise both in the United States and abroad, the nation needs answers, and it needs a plan to address this crisis.  By exercising its oversight authority, as it has done in similar moments of crisis in the past, Congress can help get the answers the American people deserve.