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The 1944 law behind the CDC's authority

ARI SHAPIRO, HOST:

The reason that masks are now optional in many airports, subways and buses has to do with a law passed in 1944. It's called the Public Health Service Act. It authorizes federal health agencies to make and enforce measures to prevent the spread of disease, and that's what the Centers for Disease Control and Prevention was trying to do by mandating masks on public transportation during the COVID pandemic before a federal judge declared it an overreach of CDC authority based on her reading of the 1944 law. So what does that law actually say?

Lawrence Gostin is a professor of public health law at Georgetown, and he's here to explain. Welcome.

LAWRENCE GOSTIN: Well, thank you very much for having me. I appreciate it.

SHAPIRO: Broadly, what exactly did this law do?

GOSTIN: Well, this is a law created in 1944 that gave the Public Health Service - because CDC wasn't even created then - the ability to prevent the interstate or international transmission of an infectious disease. You know, the country and the world had in its memory the 1918 flu pandemic. They realized that infectious diseases were one of the most serious threats, and they also realized that states acting alone, you know, can't prevent the spread of an infectious disease, so it gave the Public Health Service that power. And soon after the CDC was created, that power was then delegated to the CDC.

SHAPIRO: When this legislation was first being introduced, proposed, debated in the 1940s, did you see the same kind of tension we're seeing today over what the authority of the federal government should be?

GOSTIN: No. You know, I think that there was a very strong national agreement - Republicans and Democrats alike - that we needed a strong public health agency and that, while most public health powers do reside at the state and local level, what a state or a city can't do is prevent the spread of diseases across the United States or, in fact, coming from abroad to our nation's borders. And I think that, you know, that's why the Public Health Service Act gave the federal government, you know, very, very broad powers to prevent the introduction into the United States and the transmission of an infectious disease across the United States to do anything it deems necessary to protect America against the interstate or international spread of a dangerous infectious disease. And of course, by definition, COVID-19 meets that standard.

SHAPIRO: You believe that the judge misinterpreted this law. Do you also believe that the law, which was passed in 1944, needs updating? Is it out of step with the times? Does it fall short in some ways?

GOSTIN: Yeah. I mean, that's a good question, and I've been, you know, on a National Academy of Sciences Committee reviewing exactly that. So, you know, the answer to that is yes, I would like to see the CDC's regulatory powers modernized, and that we should learn the lessons from COVID-19.

SHAPIRO: Modernized can be - mean so many things. What does that mean in the way that you're using it?

GOSTIN: You know, what it means is that we give CDC all the powers explicitly that it will need in the next health crisis. If you think about the air travel mask mandate, it's an almost quintessential power that the CDC should have because you've got somebody, you know, boarding a flight in New York City and flying to Los Angeles. There's no state that can protect us.

SHAPIRO: And so that's where you would draw the line between that kind of a policy and something like the policy in Shanghai that says, you know, people can't leave their houses at all if there's a COVID outbreak or something like that.

GOSTIN: Absolutely. I don't - I do not believe that the CDC should have the power to reach into a state, regulate an individual, regulate a business so long as that state itself has the authority to do it. But what no state can do is prevent me from going from, you know, New York to New Jersey or from New Jersey to California. And that's why we need a national public health agency. And I do think we should be modernized. You know, I want to see a federal agency that's, you know, strong, powerful, decisive, uses science and protects us where states can't.

SHAPIRO: Lawrence Gostin, university professor of global health law at Georgetown and director of the World Health Organization's Collaborating Center on National and Global Health Law, thank you for talking with us.

GOSTIN: It's a pleasure, Ari. Thank you very much for having me. Transcript provided by NPR, Copyright NPR.

Ari Shapiro has been one of the hosts of All Things Considered, NPR's award-winning afternoon newsmagazine, since 2015. During his first two years on the program, listenership to All Things Considered grew at an unprecedented rate, with more people tuning in during a typical quarter-hour than any other program on the radio.