NRPLUS MEMBER ARTICLE {T} he Covid-19 pandemic was a disaster. Over a million Americans died — many in isolation in hospitals and nursing homes, far from their friends and family — and millions more became seriously sick, lost their jobs, or felt the effects of widespread economic and social disruption. Students suffered irreversible learning losses, with many exiting the public-school system altogether. Patients delayed or were denied health care unrelated to Covid-19, from cancer treatment to routine vaccination. Mental-health issues and domestic abuse spiked.
Federal, state, and local authorities frequently made confusing or contradictory policy decisions, leaving Americans bewildered and frustrated. In many places, churches and schools shuttered while bars and liquor stores remained open. The Centers for Disease Control and Prevention (CDC) was among the most prominent federal institutions at the center of this maelstrom. One of the agency’s key functions during the pandemic — and a source of much controversy — was to provide public-health guidance: advice to institutions and individuals about how to behave in response to the threat of a novel coronavirus.
CDC guidance itself isn’t new — the agency has been issuing public-health guidelines and warnings for years — but it took on a new and outsized role during the pandemic. Americans learned the hard way that the CDC is not just a public-health agency; it is part of the administrative state, embedded in a powerful federal bureaucracy with considerable influence over economic and social life. Yet the CDC’s policy guidance is peculiar, neither strictly regulatory nor simply advisory. And the processes and evidence the CDC uses to make such consequential decisions are, compared with those of other administrative agencies, unusually opaque.
Recent survey data from the American Enterprise Institute’s Survey Center on American Life show a dramatic decline in public trust in scientific and medical expertise from before the pandemic to today. It may take years for the public-health community — and the CDC, in particular — to recover. As a first step toward regaining its legitimacy, the CDC should consider reforming its public-health guidance — not only to help it make better decisions, but also to increase the transparency and accountability of its decision-making process.
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To be trustworthy, an institution must be capable of reliably delivering the services the public demands from it. Moreover, the process by which public demand is met must be recognized as legitimate — the institution must carry out its functions in ways that are perceived as fair and reasonable. In the case of the CDC, that means not only promoting information and policies that protect public health, but also making policy decisions in accordance with agreed upon and publicly recognizable procedures, with the possibility of recourse when things go awry.
During the Covid-19 pandemic, the CDC often failed on both counts, hampering its own ability to implement effective policies and contributing to the erosion of public trust in scientific and medical expertise.
Where, exactly, did the CDC go astray? In some cases, especially very early in the pandemic, the CDC — like all public authorities — simply had to make judgment calls under conditions of radical uncertainty with no good options. In other instances, the agency made fateful mistakes — such as its botched rollout of diagnostic tests — which hampered our initial pandemic response. In still other cases, the agency arguably exceeded its statutory authority, as when it unilaterally issued an eviction-moratorium order after Congress failed to reach an agreement on the issue. (The order was later struck down by the Supreme Court.)
Many of the CDC’s most controversial decisions concerned the agency’s public-health guidelines. Making policy recommendations to protect public health is a core part of the CDC’s mission. During the pandemic, such recommendations — concerning whether and how to reopen schools or when to vaccinate which groups against Covid-19 — became a central feature of our public and private lives. Too often, these guidelines were ambiguous, confusing, or altogether wrong-headed.
Criticism came from various quarters. For instance, experts now agree that the CDC was far too slow in accepting the role of aerosols in transmitting the virus. And of course there was the infamous flip-flopping on masks, not to mention the obfuscatory justifications that followed. During the Omicron wave, critics from the left accused the agency of caving to practical and political pressures to return to business as usual when it abruptly halved isolation and quarantine times. More recently, congressional Republicans have charged that CDC guidance on school re-openings was unduly influenced by teachers’ unions.
These mistakes weren’t all equally misguided, but they contributed to the public perception that the CDC’s decision-making process was in some way unreliable, ineffective, or improper — in other words, influenced by non-scientific factors. In the extreme, the CDC stands accused of issuing diktats without the input of a broad enough array of stakeholders or public accountability. This is a problem of legitimacy, not just policy.
Yet it is a peculiar kind of legitimacy crisis. On one level, CDC guidelines are just that: guidelines, which institutions or individuals are encouraged but not required to follow. In principle, this allows for flexibility and adaptation — virtues when it comes to translating rapidly changing policy advice into action in such a large and diverse country as ours. It also means that the CDC is not entrusted with coercive power over the vast array of issues its guidance touches on.
Indeed, many controversial pandemic policies, such as school closures and mask mandates, were implemented by state, local, and municipal authorities — not the CDC. The fact that CDC guidelines are technically voluntary is partly why there was so much variation in whether, when, and how they were adopted. It is also why the CDC’s defenders are not entirely wrong when they remind its critics on Capitol Hill that school closures, for instance, were in the hands of state and local authorities. At the same time, to characterize CDC public-health guidance during the pandemic as mere advice is highly misleading.
Unlike a lot of expert advice given to government authorities, CDC guidelines are public-facing but not obviously publicly accountable. Especially under pandemic conditions, the recommendations are — and are meant to be — considered and adopted, frequently without modification or even second thought, by a wide array of local, national, public, and private institutions, from Army bases and Amazon warehouses to your local school board and youth swim team. During the pandemic, CDC guidelines also came to shape and constrain individual behavior in a way and to a degree that most regulatory agencies could only dream of, influencing everything from whether to wear what kind of masks under what circumstances to how many feet to stand apart from strangers to how long to isolate at home after infection or exposure.
In effect, the CDC’s policy recommendations — though they do not carry the force of law — were often treated as binding in practice. To flout them in certain circles was almost tantamount to transgression — the violation of a taboo. The nebulous but nevertheless real effect of the CDC’s guidance is a reminder that political power is not always reducible to the coercive power of the law. What does democratic accountability mean under such circumstances?
When it comes to official rules and regulations, it is clear — at least in principle — what it means for an agency to exceed its authority, e.g., by regulating something it shouldn’t. This is what happened when the CDC tried to use its federal quarantine powers to justify issuing an eviction moratorium. To be sure, we often disagree in practice about particular cases, e.g., how to interpret any given agency decision, statutory language, or legal precedent. But we also have well-established (not to say perfect) mechanisms by which the public and its representatives in Congress can challenge agency decisions, and the courts can adjudicate such disputes, as happened in the eviction-moratorium case.
What about public-health guidelines? The CDC has its own internal processes for incorporating stakeholder feedback and expert input into the formulation of its public-health guidance. But these processes are largely opaque to the public. During the pandemic, the vast majority of citizens were left in a passive position, presented with public pronouncements on a dizzying range of individual and social activities but lacking formalized mechanisms for voicing disagreement or seeking recourse after the fact.
To improve its policy-making process — both in terms of outcomes and legitimacy — the CDC should consider reforms that increase public accountability. To that end, it might look to its sister agency, the U.S. Food and Drug Administration, which has pioneered models for science-based policy-making that incorporate a broader range of feedback from those affected.
The FDA approach to administrative rulemaking relies on notice and comment, guidance documents, and public workshops. The goal is to engage stakeholders in real time and, where possible, build scientific consensus, allowing policy to reflect the concerns of the many rather than the few. For instance, the FDA has included patient representatives in many of its advisory committees and medical-device panels for decades. Members of the public have other avenues for redress, including the filing of citizen petitions and — at least until recently — longstanding publication of agency officials’ contact information, including email addresses.
There is no silver bullet for regaining public trust, and the FDA faces problems of its own in this respect. But increasing outside input and accountability could help the CDC restore its own institutional health and avoid the kinds of mistakes it made during the pandemic. For instance, the CDC did not adequately consider the impacts of its pandemic guidance, relying too heavily on a relatively narrow range of experts and stakeholders. What were the public-health consequences of job loss? Of extended social isolation? Of delaying medical care? Of cutting millions of students off from an important vehicle for delivering social services — public schools? And how were such risks to be balanced against those associated with Covid-19?
To grapple with such issues — not to mention the complexity of tailoring generic public-health guidance to local circumstances and needs — the CDC should have engaged a more diverse array of voices. In addition to infectious-disease experts, economists, educators, mental-health practitioners, and lay citizens from a variety of local communities and public and private institutions all have a stake in formulating and implementing health policy. (By contrast, the CDC’s Advisory Committee to the Director, for instance, is composed almost entirely of academic experts in medicine and public health.)
Like the FDA, the CDC could integrate public comment and stakeholder feedback into its decision-making process, even for non-regulatory actions such as issuing guidance. During a fast-moving crisis such as a pandemic, the CDC may need to act more nimbly, without being hamstrung by bureaucratic processes. To that end, the agency might consider establishing an independent pandemic advisory committee — an ad hoc group of diverse experts and stakeholders that could provide advice and review agency decisions. (The CDC has experimented with such an approach in the wake of previous public-health crises.)
But whether made during an emergency or under normal circumstances, CDC decisions must be both transparent and accountable to the public. The agency’s legitimacy and our country’s ability to protect public health depend on it.
Brian J. Miller, a practicing physician, is an assistant professor of medicine at the Johns Hopkins University School of Medicine and a nonresident fellow at the American Enterprise Institute (AEI). M. Anthony Mills is a senior fellow at AEI.