War on COVID: Warfare and its Discontents

Introduction

This Essay critically analyzes the wartime framing that both Presidents Donald Trump and Joe Biden relied upon in fighting a “War on COVID-19.” According to this militarized framing, they sought to, in Trump’s words, “fight that invisible enemy,” the coronavirus.^[2] The conundrum this Essay explores is: Even as Biden has announced plans to let the coronavirus health emergency declaration expire in May 2023^[3] (as this Essay goes to press), for the future, how should lawmakers address crises, such as COVID-19, with the urgency of a social emergency without reinforcing our overly-militarized, securitized, and policed state implicated by national security emergencies?^[4] The problem with a militarized, securitized approach to a health crisis, such as COVID-19, is that security “is a deeply indeterminate concept, whose power derives not only from its association with particular issues or threats, but from the way that it combines fundamental ambiguity with a sense of heightened urgency.”^[5] As a normative and practical matter, a militarized, securitized approach to the interrelated health and economic crises catalyzed by coronavirus is flawed due to the indeterminacy of war discourse and its relationship to legality in exceptional moments.

Importantly, this project fits within the body of scholarship critiquing and redefining national security law studies—by questioning what is meant by “security,”^[6] by “racing national security,”^[7] and by applying feminist^[8] and other critical lenses which interrogate the levers of decision making and power that the concept of security highlights and erases.^[9] Building on “critical insights concerning the structure of international law and politics,” this broader body of scholarship raises significant questions, such as: to what extent is security defined primarily by state actors in contrast to nonstate actors?^[10] Relatedly, whose knowledge matters in identifying and responding to security threats?^[11] What is the relationship of security to legality? In moments of emergency, does security require exceptionalism?^[12] How do we prevent security measures adopted in times of emergency from bleeding over into ordinary law in normal times?^[13]

At the time of writing, the number of individuals who have died directly from COVID-19 is nearly 6.9 million globally^[14]14 and well over one million in the United States alone.^[15] While the health emergency (and, with it, the war on COVID-19) had been open-ended, once Biden declared the pandemic was “over” in September 2022, the U.S. government’s response involved pivoting to an endemic phase,^[16] paving the way for the revocation of emergency powers and raising questions about the government’s ongoing long-term commitment to the economic inequalities laid bare and exacerbated by the COVID-19 crisis.

This project builds on my recent scholarship on the “Color of Covid” and its intersection with the “Gender of Covid” which address security concerns in the context of differential economic insecurity and structural inequality experienced during COVID-19.^[17] Going beyond my earlier work, this Essay explores new questions concerning the use of the security framework by both Presidents Trump and Biden in the context of wartime rhetoric and war-related legal authority to address the COVID-19 pandemic and to plan for the postpandemic economy. Strikingly, civil rights leader Sherrilyn Ifill has called not simply for a Marshall Plan in recovering from the pandemic-era recession (referring to the post-World War II economic recovery program providing aid to Western Europe), but a Thurgood Marshall Plan to build a more inclusive economy.^[18] Utilizing the Marshall Plan as a reference point reflects a comfort with securitizing our understanding of the current moment (even while seeking to appropriate the security trope).^[19] As discussed further in Part III, the connection between national security and civil rights has an important basis in history.

Along similar lines, as Ben Heath notes, transnational actors are offering “alternative visions of security that either complement or contest” the state-actor model.^[20] Traditionally, the state defines national and international security concerns and objectives; thus, alternative visions require mapping out new approaches to human security aimed at transforming power structures.^[21] For example, “transnational social movements declaring that Black Lives Matter point toward alternative imaginations of security based on divestment from policing and carceral systems, and investment in communities.”^[22] While sympathetic to the propensity to appropriate the securitization framework, this Essay seeks an alternative framing that more fully refines and rejects the more militarized dimensions of the security framework, along parallel lines explored by Ben Heath and Mary Dudziak.^[23]

Part I of this Essay outlines the “War on COVID-19” framework, specifically exploring the invocation of wartime rhetoric and war and emergency powers legal authority. Part II explores the benefits and shortcomings of framing our current COVID-19 crisis as a war—as a legal and normative matter. Part III draws on three historical analogies to reflect on the paradoxical allure of the war and emergency power paradigm to better understand the current moment: The Civil War to Reconstruction, the Great Depression to the New Deal, and World War II to the Marshall Plan. Despite the tragedy inherent in war and other moments of crisis, these particular moments in U.S. history have prompted calls for and shown the promise of transformative change. In Part IV, I propose an alternative approach to meet the current moment with an ethics, politics, and law of care, rather than a framework of war, militarization and securitization, as these latter approaches often promote “law and order” over justice.

I. WARTIME FRAMEWORK: PRESIDENTIAL OVERREACH AND UNDERREACH

In this Part of the Essay, I outline the “War on COVID-19” as a framework of rhetoric and legal authority. The war paradigm provides expanded powers, such as those under the Defense Production Act (DPA), allowing the president to act in moments of crisis in the short term. But the war framework has been ill-suited to address social and economic trade-offs of responses to the COVID-19 crisis over the longer term, including paving the way toward an inclusive recovery. Due to problems of both executive overreach and underreach in the Trump and Biden administrations, the war paradigm is inadequate for addressing the interconnected health and economic crises we experienced with COVID-19 and is subject to abuse.^[24]

Subpart A outlines the use of wartime rhetoric as a way to frame the COVID- 19 crisis for political purposes, such as rallying public support. Subpart B focuses on the president’s expanded legal authority under emergency and war powers. Subpart C explains the notions of executive overreach and underreach, while Subparts D and E then examine specific instances of overreach and underreach under both Presidents Trump and Biden pursuant to their expanded legal powers.

A. Presidential Rhetoric: Using a War Framing for the COVID-19 Crisis

As a way to build public support during the COVID-19 lockdown, then- President Donald Trump claimed broader wartime powers, announcing that the fight against COVID-19 was “our big war,” and “a medical war. We have to win this war. It’s very important.”^[25] Yet rather than simply using the rallying cry of war to unify against a common enemy—COVID-19—Trump instead used the wartime framing in divisive ways. For example, Trump added fuel to the fire for a trade war with China as well as anti-Asian hatred, referring to the battle against the pandemic as “our war against the Chinese virus.”^[26] In fact, Trump sought to blunt criticism of his own mishandling of the response to the pandemic^[27] by pushing blame onto a foreign power.^[28]

President Joe Biden continued this wartime framing to call attention to the massive government effort needed to address the pandemic. In remarks at the Centers for Disease Control and Prevention (CDC) on March 19, 2021, for example, Biden noted the government’s COVID-19 efforts, emphasizing that “this is a war” and urging that Americans think of themselves in militarized terms: “[Y]ou are the Army. You’re the Navy. You’re the Marines. You’re the Coast Guard. I really mean it.”^[29] Since then, the Biden administration has authorized the National Guard to assist with the transportation and distribution of the COVID- 19 vaccine—particularly when the vaccine was initially made available, to meet the high demand—in an effort to make the vaccine as quickly and widely available as possible.^[30]

B. Presidential Power and Legal Authority

President Trump declared the COVID-19 pandemic a national emergency on March 13, 2020 under the Stafford Act^[31] and National Emergencies Act,^[32] following Health and Human Services Secretary Alexander Azar’s announcement of a public health emergency (under the Public Health Services Act)^[33] in January 2020.^[34] Beyond rhetorical value, declaring a war against COVID-19 permitted Trump and Biden to seize immense power under the overlapping legal frameworks of emergency and war powers. These legal frameworks are overlapping because declaring a national emergency enables the use of military personnel^[35] and other powers otherwise largely reserved for wartime, such as the DPA.^[36] In this Subpart, I focus on two important emergency power legal tools that Trump and Biden used: the DPA^[37] and a provision of the Public Health Services Act (known as Title 42).

A Cold War era statute, the DPA was adopted in 1950, in response to the start of the Korean War.^[38] It had its origins in the World War II era War Powers Acts of 1941 and 1942.^[39] The DPA permits the president, “largely through executive order, to direct private companies to prioritize orders from the federal government.”^[40] The president is authorized to “allocate materials, services, and facilities” for national defense purposes; take actions to restrict hoarding of necessary supplies;^[41] make purchases; and require that companies coordinate with each other.^[42] As with the War Powers Resolution,^[43] the DPA provides the executive branch with expanded powers—and discretion—during emergency situations to act unilaterally, within designated authority when the executive branch finds an emergency exists.

The invocation of emergency powers also enabled the Trump administration to “erect a shadow immigration enforcement power”^[44] under Title 42 along United States’ southern border. Under Title 42, the CDC Director:

may prohibit, in whole or in part, the introduction into the United States of persons from designated foreign countries (or one or more political subdivisions or regions thereof) or places, only for such period of time that the Director deems necessary to avert the serious danger of the introduction of a quarantinable communicable disease.^[45]

While basing these restrictions on public health grounds, the Trump administration invoked national security to exclude noncitizens generally, even while specifically enabling agricultural and other essential, temporary laborers, who are not citizens, to enter. Biden promised to terminate Title 42, but he was initially slow to do so.^[46]

C. Executive Underreach and Overreach

Both the DPA and Title 42 provide examples of how the militarized, wartime rhetoric and emergency law powers can have significant consequences on presidential action and presidential inaction. Specifically, the centralization of power in the executive with wartime powers can lead to the twin problems of executive overreach and executive underreach. Professors Aslı U. Bâli and Hannah Lerner note how war powers often shift authority to the executive branch, resulting in executive overreach.^[47] They argue for a larger ongoing role for the legislature, particularly in the context of health and other social emergencies (in contrast to national security emergencies).^[48]48 They contend that the legislative branch is better equipped than the executive branch to weigh scientific expertise, deliberate over difficult social and economic tradeoffs in a more transparent manner than the executive branch, and adjust responses as new scientific evidence comes to light.^[49] According to Bâli and Lerner, the legislative branch’s broader deliberative nature assists in securing more extensive input and therefore buy-in from more constituencies.^[50]

By contrast, Professors David Pozen and Kimberle Scheppele note the potentially equally troubling problem of executive underreach in response to the pandemic.^[51] According to Pozen and Scheppele, executive underreach is “a national executive branch’s willful failure to address a significant public problem that the executive is legally and functionally equipped (though not necessarily legally required) to address.”^[52]

In the next two Subparts, I explore how the centralization of power in the executive with wartime powers led to the twin problems of executive overreach and executive underreach with regard to the DPA and Title 42 under Presidents Trump and Biden.

D. Executive Underreach and Overreach during the Trump Administration

Trump’s initial anemic response to the COVID-19 crisis^[53] reflected executive underreach. As Pozen and Scheppele note:

Throughout the winter of 2020, Trump minimized the danger posed by the virus, declined to order the Centers for Disease Control and Prevention to prioritize it, ignored a National Security Council playbook on fighting infectious diseases, and failed to ensure adequate production and distribution of test kits, ventilators, or protective medical gear.^[54]

Moreover, from around the time of the first COVID-19 death in the United States, Trump proclaimed, “You know, a lot of people think that goes away in April with the heat—as the heat comes in. Typically, that will go away in April.”^[55] He repeatedly made comments about the virus disappearing up through the November 2020 election.^[56] Further, Trump did not use the DPA until late March 2020, and at that point, in a manner “that fell far short of what many experts recommended.”^[57] Having dragged his feet to provide medical supplies from the national stockpile, Trump finally did so in late March, when the decision seemed “to have favored states with Republican governors.”^[58] As further evidence of Trump’s executive underreach during the COVID-19 crisis, Pozen and Scheppele point out:

Trump has additionally threatened to pull the United States out of the WHO; peddled dubious and dangerous cures; refused to wear a face mask in public; criticized governors who imposed lockdowns or followed public health advice to reopen gradually; and, by June 2020, started holding largely mask-free indoor rallies to gin up support for his reelection.^[59]

While Trump was slow to invoke the DPA to accelerate production of personal protective equipment (PPE),^[60] his executive underreach problem stopped once he eventually appropriately ordered 3M Company to produce N95 respirator masks and General Motors to produce ventilators for the federal government.^[61] Further, he properly issued one executive order to prevent the hoarding of PPE^[62] and another to expand domestic production of PPE and other health equipment.^[63]

Yet in an act of executive overreach, Trump issued a controversial order preventing distributors from exporting PPE.^[64] The power to restrict exports had not been used since the Cold War, and the order was criticized because of the risk that such export restrictions might “work to the detriment of the world’s ability to distribute these scarce medical resources to where they are needed most with the minimal amount of red tape.”^[65]

In another act of executive overreach, Trump used his authority under the DPA to issue Executive Order No. 13,917, which required that meat processing plants remain open, ostensibly to protect the food supply chain and related “critical infrastructure."^[66] Assembly line workers in these plants were (and still are) disproportionately Black and Latinx, and had limited protection from Occupational Safety and Health Administration (OSHA) enforcement at the time.^[67] Pursuant to Executive Order No. 13,917, Trump instructed Agriculture Secretary Sonny Perdue, “as he deems appropriate, . . . to ensure that meat and poultry processors continue operations,” claiming scarcity of meat and poultry.^[68] The difficulty of workers being able to socially distance on the assembly line led to outbreaks at numerous poultry plants.^[69]

In short, the poultry workers were forced to risk their lives on the ostensible frontlines in the president’s “War on COVID-19.” Different rhetoric, along with legal protections to safeguard the health and safety of these workers, would have recognized them as people deserving of rights, rather than, in effect, soldiers who signed up to sacrifice their lives for the good of the country. Misconceiving of the workers in this way was especially troubling in that it disproportionately impacted Black and Latinx people whose lives were at risk.

Trump’s use of Title 42,^[70] which blocked migrants from entering the United States through its southern border, is an additional instance of executive overreach.^[71] In relying on this obscure provision from a 1944 law, ^[72] the Trump administration “originally concocted” the Title 42 ban “on dubious legal grounds as a means to close down the southern border to asylum seekers,”^[73] Professor Jaya Ramji-Nogales explains:

The policy was implemented on March 20, 2020, reportedly over the objection of the then-Director of the Centers for Disease Control and Prevention, Dr. Robert Redfield. Public health experts have repeatedly criticized the program, describing the public health justification as specious, and offering guidance in the form of alternate measures that could protect public health while permitting asylum seekers to obtain protection in the United States.^[74]

Trump’s inappropriate use of the “War on COVID-19” as a justification to divert Pentagon funding to build his southern border wall^[75]—which, as I have discussed elsewhere, had roots in racial tropes concerning Latinx communities— serves as a final, related example of his executive overreach.^[76] What began as an effort to divert military funding to build his border wall even before the pandemic hit, the continued push to improperly use defense funds for the border wall during the pandemic was yet another example of executive overreach in that it was neither justified as a matter of law or policy. Besides likely unconstitutionally infringing on U.S. Congress’s spending powers,^[77] Trump’s policy was misguided and justified based on false information. He claimed that the border wall was needed to keep COVID-19 from spreading from Mexico to the United States. However, Mexico was not the problem: COVID-19 rates were actually higher on the U.S. side of the border at the time.^[78] Moreover, border wall construction under Trump seemed likely to create more problems than it would solve with regards to COVID-19 because the influx of construction workers headed to remote towns posed a potential public health threat in the border region.^[79]

Nonetheless, war powers were a convenient shield for Trump, who asserted that, “To this day, nobody has seen anything like what they were able to do during World War II . . . Now it’s our time. We must sacrifice together because we are all in this together and we’ll come through together.”^[80]80 In sum, even as Trump initially erred through executive underreach in responding too slowly and inadequately to the pandemic, he later blundered through executive overreach in his use of military rhetoric, nationalism, racism, and expansive, potentially unjustified exercises of power under the DPA, ignoring the sacrifice of low-income poultry workers and cloaking his long-term goal of building a Southern Wall on the border with Mexico.

E. Executive Underreach and Overreach in the Biden Administration

By contrast, Biden initially used wartime powers to appropriately and effectively accelerate the emergency response to the COVID-19 pandemic, rather than as a pretext to undermine worker rights protections or build a border wall. However, as an example of executive underreach, the Biden administration dragged its feet on reversing damaging Trump-era policies, particularly with regard to Title 42.

Biden, on his first day in office, issued Executive Order 14,001^[81]81 directing his administration to “identif[y] shortfalls in the provision of pandemic response supplies,” and to use the DPA to address any shortfalls, if necessary.^[82] Further, the Executive Order tasked his administration to ensure the adequacy of such supplies for future pandemics, including by improving supply chains and expanding the Strategic National Stockpile of PPE.^[83]

Since then, the Biden administration relied on the DPA to speed up vaccine production by assisting manufacturers to secure the equipment and components needed to make doses.^[84] Furthermore, the Biden administration also relied on the DPA to expand access to COVID-19 testing.^[85] In the midst of the fast-spreading Omicron variant, in December 2021, the Biden administration leveraged the DPA in its plans to distribute half a billion COVID-19 tests.^[86]

Yet as an example of both executive overreach and underreach, Biden was slow to end Trump-era pandemic restrictions under Title 42,^[87]87 continuing the blockade on migrants from the U.S. southern border.^[88] Biden’s continuance of the policy illustrated ongoing executive overreach, while his delay in reversing the policy demonstrated underreach. The Biden administration eventually announced it was terminating Title 42 in spring 2022,^[89] amidst the easing of COVID-19 rates and travel restrictions. But Biden’s efforts to rescind Title 42 were paused once a lawsuit was filed challenging his plans to end the policy.^[90] The Biden administration argued before the U.S. Supreme Court “that its intent to let the coronavirus public health emergency expire in May [2023 would] moot the ongoing case over a Trump-era border restriction.”^[91] And, indeed, once the coronavirus public health emergency expired in May 2023, Biden lifted the Title 42 restrictions.^[92]

II. PROS AND CONS OF A MILITARIZED, SECURITIZED FRAMEWORK

This Part of the Essay explores the pros and cons of using a militarized, securitized framework for the COVID-19 crisis—both as a legal and rhetorical matter. Subpart A summarizes the benefits of the wartime framing and Subpart B summarizes the downsides.

A. The “War on COVID-19”: The Allure of the War Framework

On the one hand, invoking war as a way to define a crisis—in this case as a battle against an “invisible enemy,”^[93] a virus—allowed President Trump and now President Biden to rally support and exercise extraordinary presidential powers quickly in the face of an emergency.^[94] Beyond the rhetorical value of securing public support for efforts combatting COVID-19, as Americans rally around the flag to support wars that appear justified,^[95] declaring war also establishes a legal hook and justification for invocation of the DPA.^[96]

As discussed in Part I, while slow to invoke the DPA, Trump eventually did resort to it to accelerate production of PPE, prevent hoarding of essential supplies, and increase the domestic production capacity of essential health products.^[97] Biden also sought to identify shortfalls in pandemic response supplies, secure supplies for future pandemics, improve supply chains, speed up vaccine production and distribution, and expand access to COVID-19 testing.^[98]

Thus, a benefit of the DPA is that it offers emergency authorization for the president to respond with dispatch in times of crisis. While the DPA grew out of the context of World War II and the Korean War, war is not a prerequisite for the president to invoke it as a source of legal authority,^[99] which further enhances its usefulness as a basis of presidential authority to act quickly in times of emergency. The “Declaration of Policy” section of the statute states that “the security of the United States is dependent on the ability of the domestic industrial base to supply materials and services for the national defense and to prepare for and respond to military conflicts, natural or man-caused disasters, or acts of terrorism within the United States.”^[100]

Given the broad language of the DPA, many crises beyond military conflicts fall within this basket. For example, the Federal Emergency Management Agency (FEMA) relies on the DPA when responding to disasters, “bumping its orders for items such as food and bottled water to the front of the line. The DPA was also used to supply natural gas to California during the 2000–2001 energy crisis.”^[101] In sum, the war powers legal framework that undergirds the DPA provides the president with broad authority to respond with swiftly in times of crisis.

B. The Downsides of a Militarized Framework

On the other hand, reliance on a heavily militarized framing risks reinforcing the legitimacy of domestic militarization, strengthening the carceral state, and undermining more transparent, democratic forms of governance. War is a malleable term that has been used to rhetorically wage battles in the “War on Drugs” and “War on Poverty.”^[102] Even where the term “war" is used to invoke legal authority—as it has been with invocation of the DPA to fight COVID-19—emergency and related war powers can be distorted to justify measures based on the pretext of an emergency.^[103]

For example, as discussed in Part I, in pointing to the pandemic crisis, Trump sought to justify redoubling efforts to build his proposed southern border wall.^[104] As further illustrated in Part I , Trump used the COVID-19 crisis as a basis to force the predominantly Black and Latinx poultry worker labor force to risk their lives on the frontlines in the president’s “War on COVID-19” by requiring that meat processing plants remained open, ostensibly to protect the food supply chain and related critical infrastructure.^[105] Additionally, Trump’s militarized rhetoric concerning COVID-19 weaponized it as a white supremacist tool that fueled anti- Asian hate. According to a UC San Francisco study, “[i]n the week after former President Donald J. Trump tweeted about ‘the Chinese virus,’ the number of coronavirus-related tweets with anti-Asian hashtags rose precipitously.”^[106] Trump had tweeted, “The United States will be powerfully, supporting those industries, like Airlines and others, that are particularly affected by the Chinese Virus. We will be stronger than ever before!”^[107] Both Trump’s text and this study came amidst “a rash of violent attacks on people of Asian descent” and lent validity “to warnings by public health experts that naming a disease after a place is stigmatizing.”^[108]

The warfare paradigm is also negative because it harkens back to harmful extensions of U.S. military power and colonialism abroad that have been ill- advised, including the recent occupation of Iraq.^[109] Analogous to that war, it was not clear when the “War on COVID-19” would end. Only once the COVID-19 virus is completely subdued? Until recently, the United States had been engaged in a decades-long forever war against Al Qaeda and its successor entities, leading to warfare with an ill-defined ending point.^[110] Martin Luther King, Jr. had warned against such endless wars in the context of the Vietnam War.^[111]

Wars are expensive, yet Congress rarely imposes sunset clauses and has been slow to otherwise bring wars to a close.^[112] Characterizing the fight against the coronavirus—an invisible enemy—as a war raises parallel challenges of determining when the emergency is over. The legal battle over ending Title 42 restrictions on migrants crossing the U.S. southern border is an example of how the ongoing emergency declaration harmed Brown and Black migrants (for example, from Latin America and Haiti).^[113]

On the domestic front, the militarization of American policing also reveals a dangerous downside of military models and militarized rhetoric. In the early days of the pandemic, the “War on COVID-19” was enforced through police stopping people who failed to wear face masks in predominantly Black and Brown communities.^[114] As I have noted elsewhere, “the New York Police Department violently arrested individuals in communities of color, while politely handed out face masks to white sun bathers in Central Park.”^[115]

Nonetheless, historically, periods of militarization have been followed by transformative change.

III. CRISIS AND CONSTITUTIONAL CHANGE

This Part draws on historical analogies to reflect on the paradoxical allure of the war and security framework in moments of crisis. Despite the hardship and loss inherent in these periods, these moments in U.S. history often prompt calls for transformative change following the tragedy. Given the contemporary interlocking pandemics of COVID-19, economic devastation, and inequality^[116]—and the calls for change prompted by these interrelated crises—we can look to historical analogies to better understand the urgency implied by the militarized framing of the COVID-19 crisis.

Here, I examine three historical analogies that have been raised to suggest that the COVID-19 crisis marks a moment for transformative change. Subpart A explores the shift from the Civil War to Reconstruction. Subpart B examines the pivot from the Great Depression to the New Deal. Subpart C turns to the transition from World War II to the Marshall Plan. Based on an understanding of how these three historical shifts operated within frameworks of national and economic security, the potential transition from pandemic to a postpandemic recovery has similarly been framed within the context of security, specifically health and economic security. We are at a pivot point: either we return to the status quo of the pre pandemic period, or we use the pandemic as a portal^[117] to a new normal.

A. From Civil War to Reconstruction

A familiar historical analogy, which draws directly on the notion of wartime and recovery, is the idea of Reconstruction as a period of rebuilding after the fractures and devastation of the Civil War. Following the Civil War, Congress adopted the Reconstruction Amendments, which freed enslaved Blacks, provided for at least formal equality, and enfranchised Black men to vote.^[118] These constitutional guarantees paved the way for Congress to adopt civil rights legislation during the Reconstruction era. However, progress was limited due to the Supreme Court’s adoption of cramped interpretations of the law as well as political backlash against race equality.^[119] Similarly, Jim Crow laws paved the way for the civil rights era of the 1960s, which was viewed as a Second Reconstruction, yet that reconstruction too was met with political backlash and over time an increasingly hostile reception in the Supreme Court.^[120]

Today, some observers have called for a “Third Reconstruction” or “New Reconstruction,” using the post-Civil War and first Reconstruction era as a model.^[121] In light of George Floyd’s murder at the start of the pandemic, the current health crisis has overlapped with a broader period of racial reckoning.^[122] In fact, having lost his job in the midst of the pandemic, Floyd’s arrest for a crime of poverty demonstrated ways the racial reckoning and pandemic were intertwined. Thus, the idea of a new Reconstruction is more than an analogy—it builds upon the idea of the unfinished Reconstruction following the Civil War.

Just as Reconstruction faced backlash and ultimately Jim Crow,^[123] U.S. voting rights and other civil rights are similarly experiencing a period of retrenchment.^[124] Hope for a renewed Reconstruction that addresses concerns over equality and inclusion has been dimmed by both the rise of a conservative supermajority on the
U.S. Supreme Court^[125] as well as the inability of U.S. Congress to adopt responses toward a more inclusive economic recovery and police accountability.^[126] However, Part IV of this Essay outlines proposals to move beyond the current impasse and to usher in a new Reconstruction-like era.

B. From Great Depression to New Deal

In light of the current twin health and economic crises, perhaps the most relevant historical analogy is the Great Depression and the New Deal period that followed. The New Deal was important as an immediate response to the Great Depression, and it was also forward-looking in that it laid a foundation for social safety nets, labor regulations, and the modern welfare state more broadly. While the Great Depression itself was not war, it occurred in the interwar period and has been largely framed in terms of economic insecurity, with Social Security and other New Deal initiatives intended to address this insecurity.^[127] Book-ended by World Wars I and II, the joblessness and economic suffering of the Great Depression paved the way for the New Deal’s establishment of programs to address social and economic security, embedding the notion of securitization into federal policy.^[128] The war framework and war powers themselves were essential to economic recovery, as World War II helped to further accelerate recovery from the Great Depression.^[129] At the same time, federal labor laws adopted during this period excluded the predominantly Black sectors of domestic workers and agricultural workers.^[130]

Today, the grandson of Franklin and Eleanor Roosevelt, James Roosevelt, Jr., among others, has suggested that the current moment calls for a new New Deal.^[131] Not unlike the Great Depression of the last century, the pandemic recession resulted in record unemployment due to quarantine measures and other COVID- 19 restrictions that necessitated a largely stay-at-home pandemic economy.^[132] Of course, the digital economy—which was already expanding before COVID-19— exploded during the pandemic, with the rapid growth of Zoom and other videoconference systems; the accelerated rise of app-based delivery services and taskers; and the popularity of a vast array of communication technologies and social media platforms for communication, social interaction, entertainment, and economic activity.^[133] In terms of employment, however, beyond the frontline workers who continued to work in-person and those who were able to work remotely, a record number of people were furloughed or fired.^[134]

Biden’s effort to “build back better” from this economic wreckage clearly harkens back to FDR’s New Deal.^[135] Further, his infrastructure legislation^[136] is an echo of the National Industrial Recovery Act,^[137] which created the Public Works Administration, helping to employ Americans through largescale public works construction projects.^[138] On the one hand, beyond the short-term support provided by stimulus checks that Congress supported in 2020 and 2021, lawmakers fell short of enacting more transformative, longer-term changes to build a more inclusive economy.^[139] Biden’s “human infrastructure” proposal largely languished on Capitol Hill, and he backed away from shoring up, much less expanding, the social safety nets established during the New Deal.^[140] On the other hand, he was ultimately able to secure passage of the Inflation Reduction Act, which will, among other things, support the growth of the green economy and continued economic recovery, both of which were deemed essential as the nation recovered from the twin health and economic crises.^[141]

C. From World War to Marshall Plan

A final historical analogy is World War II and the postwar recovery period, as seen through the Marshall Plan, the post-World War II economic recovery program providing aid to Western Europe. Biden made this direct connection between COVID-19 recovery and recovery from the world wars in his first primetime address from the White House in March 2021—on the one-year anniversary of the COVID-19 shutdown^[142] (and the day he signed the American Rescue Package^[143]). Speaking about the COVID-19 crisis, he stated: “As of now, the total deaths in America: 527,726. That’s more deaths than in World War One, World War Two, the Vietnam War, and 9/11 combined.”^[144]

Beyond the Marshall Plan’s assistance to support allies abroad, the United States also played a leadership role in supporting the emergence of human rights at home and abroad.^[145] As with the Marshall Plan, however, the United States’ approach to the human rights regime has ultimately largely focused on rights abroad rather than at home.^[146] Putting a more domestic and contemporary spin on the analogy, civil rights leader Sherrilyn Ifill called for a Thurgood Marshall Plan, named for the first Black Supreme Court justice, to build a more inclusive economy as the United States (and the world) recovers from the pandemic-era recession.^[147] Along similar lines, founder and CEO of Girls Who Code, Reshma Saujani, has called for a “Marshall Plan for Moms,” that is, “a plan to pay our mothers for their unseen, unpaid labor.”^[148] Saujani’s demand has been published in full-page ads in the New York Times and Washington Post, signed onto by a number of influential women.^[149]

Unlike the original Marshall Plan, proposals like those from Ifill and Saujani focus on the United States’ domestic commitments to economic security. These proposals also vary from the post-World War II Marshall Plan in that they advance an approach to security grounded in economic security, economic justice, and racial and gender inclusion. The original Marshall Plan, in contrast, was primarily about economic growth, as opposed to inclusion and human development, reflecting the broader approach to economic development.^[150]

Building a bridge between national security and civil rights has a significant basis in history. The civil rights bar has long sought to hold the country to its founding values of democracy, equality, and fundamental rights—ideals the United States fought for abroad to defend national security during World War II, the Marshall Plan, and Cold War.^[151] For example, even as securing these ideals abroad was central to maintaining peace and stability following World War II,^[152] the Department of Justice’s (DOJ) Civil Rights Division notably made the connection between the country’s national security and foreign policy on the one hand and civil rights and domestic policy on the other, insisting on democracy and civil rights at home as well as abroad.^[153]153 Noting the hypocrisy of the United States fighting for democracy and human rights abroad during World War II and the Cold War while not guaranteeing equality and democracy at home during Jim Crow, in its Brown v. Board of Education amicus brief, the DOJ argued:

[T]he existence of discrimination against minority groups in the United States has an adverse effect upon our relations with other countries. Racial discrimination furnishes grist for the Communist propaganda mills, and it raises doubts even among friendly nations as to the intensity of our devotion to the democratic faith.^[154]

The NAACP argued a similar point when Brown was reargued, asserting that the “[s]urvival of our country in the present international situation is inevitably tied to resolution of this domestic issue.”^[155]

In sum, in each of these historical examples a moment of deep national or economic insecurity was followed by a moment of transformation. Understanding these periods of crisis and recovery as moments of insecurity and rebuilding security helps clarify why the transformation that followed in each instance was necessarily somewhat limited.

IV. Alternative Framework: An Ethics of Care

Given the flaws of the war paradigm historically (as discussed in Part III) as well as in the current “War on COVID-19” (as discussed in Part II), in this final Part of the Essay, I propose an ethics of care as an alternative to the wartime approach, which, as discussed above, privileges presidential power and law and order over justice.^[156] An ethics of care provides a basis for a politics and law of care, which are more appropriate for addressing the current health and economic challenges over a longer time horizon,^[157] in contrast to the initial onset of the pandemic in which the war and emergency powers framework was expedient for the short run response, given the relatively unforeseen crisis.

Before I detail my proposed alternative approach to our longterm recovery from the pandemic, I want to acknowledge that the notion of national security itself is being redefined.^[158] For example, the United Nations has reframed notions of national security to include “human security”^[159] and activists and scholars have begun calling for food, housing, and other forms of economic security to be included as well,^[160] perhaps harkening back to the FDR-era beginnings of the notion of Social Security. While this redefining of security is helpful, it fails to fully address our need in the current moment to reexamine our commitments to each other and the state’s role in supporting those commitments. Notwithstanding the past moments of crisis—such as the Civil War and Great Depression—that ushered in a more robust role for the government in the protection of rights and economic security for all, this current moment calls for a reevaluation through an ethics of care given a slippage in protection of these rights.

In Subpart A, I describe the notion of an ethics of care and suggest how to scale this notion up and embed it into a politics and law of care. In Subpart B, I argue that just as the pandemic has perhaps forever changed our notions of work and economy, so too should it upset and call upon us to radically reimagine our notions of community and commitment to each other.

A. What is an Ethics of Care?

An ethics of care is a view of morality that centers care and responsibility. The notion grows out of feminist theory. Yet because caring and caring relationships are universal human attributes, an ethics of care approach assumes that care is ethically basic to humans in general, not just women, if not always pursued in practice.^[161] In theorizing an ethics of care approach, the philosopher of education Nel Noddings built on ideas previously developed by the applied psychologist Carol Gilligan.^[162] Gilligan asserted that women have a different moral voice than men, and Noddings sought to develop an ethics for this claim.^[163] Gilligan had “sketched an outline of moral development centered on care and responsibility as complementary to the prevailing model focused on justice and rights.”^[164] Noddings was also critical of a view of morality that focused, according to her, on justice, propositions, and justifications—that is, grounded in reasoning that derives rational conclusions from hierarchically entrenched principles.^[165] As an alternative, Noddings argued for an “affective foundation of existence”— beginning “not from moral reasoning, but from the human longing for goodness.”^[166] In contrast to Gilligan, Noddings is interested in an ethics of caring rather than the development of caring patterns.^[167]

While women have historically disproportionately played primary caregiving roles, both Noddings and Gilligan disavow an essentialist notion of women as caregivers.^[168] On the one hand, the disproportionate impacts of pandemic quarantine measures on women drove home the ongoing gendered construction and devaluing of care work and other forms of work in which women predominate; women dropped out of the workforce in higher numbers than men to care for children who had to learn remotely from home during pandemic peaks.^[167] On the other hand, this gendered role is a social (not biological) construct grounded in historical structures of dominance and subordination.^[170]

In scaling up an ethics of care such that it is a government obligation, feminist legal theorist Martha Fineman offers a theory based on vulnerability as “an argument for a radical ‘ethics of care’ as the foundation for governance[.]”^[171] Fineman’s approach to vulnerability contends that because vulnerability is a universal condition in that all humans are vulnerable at various stages in life (whether in infancy, old age, or illness), we need a theory of the state that responds to this reality.^[172] Fineman’s “argument . . . recognizes that human vulnerability provides the primary legitimating justification for the coercive ordering of human relationships and endeavors through law,”^[173] which would support caregiving arrangements. Of course, the pandemic illustrated how necessary such caregiving arrangements are. Fineman’s vulnerability theory plays a critical role in scaling up an ethics of care to address our universal vulnerability, in that, as Fineman observes:

Feminist ethics-of-care theories are based on individual relationships of care By contrast, vulnerability theory centres on the institutional, not the individual, and the corresponding responsibility to care is the governmental obligation to care for everyone subject to the structures and mechanisms of governance . . . form[ing] the foundation of governmental legitimacy.^[174]

Applying this insight to the pandemic, a vulnerability analysis of COVID- 19—with an ethics of care at its core—reveals that many people who were dependent on caregiving relationships found themselves to be suddenly undermined. This dramatic loss of care happened across many contexts: childcare, eldercare, healthcare, and care and cooperation among workers, friends, and neighbors. Further, while vulnerability to COVID-19 was a universal human condition, the pandemic revealed differential vulnerability.^[175] While we were all vulnerable to COVID-19 during the worst of the pandemic, front-line workers (who were disproportionately Black and Latinx) were more susceptible to transmission than remote workers.^[176] The structural inequalities in the labor market thus revealed differential racial vulnerability to the pandemic.^[177]

Because the pandemic created a universal experience, we witnessed a convergence of interests^[178] that helped pave the way for robust government assistance, at least in the first stages of the pandemic. For example, the government provided stimulus checks to those who had lost employment.^[179] The shared sense of vulnerability helped lay a foundation for new laws and policies—one based on an ethics of care. As Ruha Benjamin has noted: We had been told that universal access to healthcare was not possible; then the pandemic taught us that universal vaccination and testing programs were, in fact, not only possible, but indispensable.^[180] We had been told that a guaranteed basic income was a pipe dream; then with the pandemic, coronavirus stimulus checks were provided to the unemployed.^[181]

B. Scrambling Our Notions of Commitments to Each Other

As discussed above, the wartime framing of COVID-19 has so far failed to deliver on the promise of broader transformation. Now COVID-19 is shifting from pandemic (and extraordinary law and politics) to endemic (and ordinary law and politics).^[182] Just as COVID-19 has scrambled our notions of work and economy, so too should it scramble our notions of community and commitment to each other. In prompting requirements to socially distance, wear face masks, and receive COVID-19 vaccination shots and boosters geared toward protecting one another,^[183] the pandemic has called on all of us to re-envision our commitments to one another as members of a polity.

As a thought experiment in exploring how an ethics of care might inform ways the pandemic can usefully scramble our notions of commitment to each other, I first offer a reflection on how an ethics of care might be applied to the care economy,^[184] among other sectors of the economy. Next, I return to the historical analogies—and the militarized, securitized approaches therein embedded— examined in Part III above and how they can shed light on the utility of an ethics of care, thus offering lessons on mistakes we might avoid making again.

1. The Care Economy: A Quintessential Case Study

Elsewhere, I have focused on how—beyond the digital and green economies—care work is core to imagining the “future of work,“ given the aging of the baby boomer generation and their care needs.^[185] Beyond being a case study in the future of work, the care economy is also a paradigmatic example of how the crisis of COVID-19 paves the way for us to re-envision our commitments to each other through an ethics of care. More so than the wartime framing of the COVID-19 crisis, an ethics of care approach would be more transformative toward moving society toward a fuller recovery and a new normal over the longer term. A new normal would be a more equitable and, therefore, a more sustainable baseline.

The U.S. workforce is aging.^[186] With baby boomers aging, eldercare is a growth sector, yet cannot be easily automated.^[187] As has become apparent during the pandemic, care workers are key to the provision of care for so many at different stages and in different ways—children, the elderly, the sick, and others in need.^[188] Yet care workers, who were already underpaid and lacking in benefits,^[189] were especially hard hit by the pandemic. These caregivers included both those who work in the home^[190] as well as those who work in assisted living facilities, where COVID-19 cases skyrocketed at various points during the pandemic.^[191]

Besides supporting those in need of care, caregivers allow others to outsource care work responsibilities, especially working mothers. Thus, the care economy is a critical and undervalued engine for gender equality. Caregiving jobs are job-enabling jobs: caregivers enable other workers to work.^[192] As such, caregivers provide a double-benefit to the economy. Yet care workers are largely excluded from many federal labor laws.^[193] This has roots in the exclusion of domestic workers, like farm workers, from labor laws adopted during the New Deal period—an exclusion that historians find was related to the fact that the domestic and farm worker sectors were overwhelmingly Black.^[194]

In driving home the critical role of caregivers, the pandemic seemed likely to establish a convergence of interests among those in need of care and care workers who needed to find ways to continue to safely provide care in the midst of COVID-19.^[195] The moment is ripe to recognize the tremendous value of care work—to us all and the economy as a whole—by extending labor law protections to this sector and affording caregivers living wages afforded to most other workers, health benefits, and other protections.

As a quintessential example of how an ethics of care can be embedded in a politics and law of care, a movement has emerged to call on lawmakers to reimagine work and the human infrastructure that supports work. Rather than treat care workers as second-class citizens by excluding them from federal labor laws, for example, an ethics of care would value their critical work in law and policy. The Care Infrastructure Campaign (spearheaded by Caring Across Generations and partnering organizations) deftly recognizes that caregiving affects many constituencies, including children, working parents, older individuals, and those in need of health assistance.^[196]

Just as investment in physical infrastructure creates literal bridges to enable commuting to work, so too investment in our care infrastructure is a critical bridge in connecting employees to work.^[197] While Biden’s proposed “Build Back Better” plan would have addressed shortfalls in the U.S. care infrastructure by providing $150 billion for in-home care workers through Medicaid,^[198] Congress’s failure to pass the broader bill highlights the need to pursue support for the care economy through more targeted legislation and bi-partisan efforts.^[199] At a moment of bipartisan agreement to improve bridges, tunnels, and other physical infrastructure, we also need investment in our human infrastructure, namely our infrastructure of care.^[200]

Lastly, the growing need for care across generations could demonstrate law professor Derrick Bell’s interest convergence theory: progress is made only when a variety of interests converge, including those of the dominant group.^[201] Even the most powerful among us in our society were vulnerable during the earliest days of the pandemic. This universal vulnerability helped align the interests of those most powerful with those who experienced differential vulnerability during the pandemic.^[202]

Rather than being completely autonomous individuals, we are socially situated. Over the course of a lifetime, we depend on each other, because each of us will inevitably be vulnerable^[203]and in need of care. An ethic of care has a greater potential to tap this interdependence for social change than the wartime framing over the longer run because of the interest many have or will have in the care economy either directly or by outsourcing care.

2. How Might an Ethics of Care Apply Beyond the Care Economy

While the care economy is perhaps an obvious example of how the pandemic demands an ethics of care that calls for rethinking our notions of community and commitment to each other, an ethics of care that is grounded in our pandemic experience might also be called for in other sectors of the economy as well. Just as COVID-19 has forced us to reimagine our commitments to each other by social distancing, masking, and getting vaccinated, so too has it forced us to reimagine our commitments to the planet, and, in effect to each other on a global scale. In just a few months—during the strictest global lockdown—our planet experienced an almost 15 percent decrease in global ozone emissions.^[204]  Imagine if we could find ways to reduce emissions in an ongoing way.

By utilizing an ethics of care that is grounded in our global, planetary interdependence, developing a politics and law of care through supporting a greener economy is essential for our literal survival. While the reduction in emissions during COVID-19 shutdowns was not prompted by a concern over the climate changing, the impact on emissions was so notable that it prompted us to realize that reduced emissions is possible in practice, not merely in theory. Notably, the Green New Deal, one of the foremost proposals for a green future, builds off of the FDR-era New Deal.^[205]

Thus I return to the historical analogies discussed in Part III as a way to apply lessons learned from the past to the future in envisioning an ethics of care.

3. Why We Must Pivot from Past Approaches to an Ethics of Care

Returning to the historical analogies—and the militarized, securitized approaches inherent in those moments—I reconsider how those earlier moments can shed light on the current “War on COVID-19” framing. By looking more closely at shortcomings in the law and policy responses to these historical examples of crisis, particularly in terms of race, I argue that an ethics of care is a more adequate framing for the long-term response to the pandemic.

From Civil War to Reconstruction: As professor Henry Louis Gates Jr. notes, even after the Civil War and abolition of slavery during the Reconstruction period, “[c]otton remain[ed] the most profitable United States export all through the 19th century, well into the 20th century, through the 1930s.”^[206] But there remained a “pesky problem of who was going to pick all that cotton?”^[207] During the period of “redemption,” Reconstruction was rolled back in at least two critical ways. First, progress was reversed when southern whites “institute[ed] a system of peonage and sharecropping, which is as close to slavery as you can get without actually being slavery” and paved the way for Black people to be, in effect, forced to continue to pick cotton.^[208] Second, many states, especially in the American South, rolled back voting rights for Black men, after which the Black community had limited options for demanding equality.^[209] With Black people concentrated in agricultural work and care work, they have been paid poverty wages through the systems of peonage, sharecropping, and various forms of care giving. Paradoxically, this is the very employment that was suddenly recognized during the pandemic as “essential work.”

An ethics of care would have recognized the fundamental humanity of African Americans and ensured human rights as a universal norm. Yet, even as the country transitioned during the New Deal, many of the racist underpinnings of the U.S. economy, labor market, and political system were still in place—the legacy of which has become stark during COVID-19 in ways that a wartime framing does not adequately address over the longer run. The transformation that the Reconstruction initiated following the Civil War was cut short in a reversal that continues to haunt the country and calls for a new paradigm to address entrenched structural inequality and economic fragility.

From Great Depression to New Deal: The New Deal was a period of reimagining the federal government’s relationship to individuals, paving the way for a range of federal protections. But by excluding domestic and agricultural workers (who were overwhelmingly Black) from labor protections,^[210] the New Deal undermined support for care workers as well as farm workers who ensured the nation’s food supply.^[211] While we view the New Deal as a period that shored up economic security, excluding these categories of workers from labor protections undermined human and economic security of these workers. It also undermined the broader security of the care economy and food security,^[212] both of which were revealed to be fragile during COVID-19.^[213] An ethics of care would have recognized the fundamental humanity of these workers. As the country moves forward with a longer-term response from COVID-19, we must learn from the mistakes of the past. We must not repeat the New Deal’s exclusion of essential workers, such as care and farm workers.

From World War II to Marshall Plan: Finally, implementation of the G.I. Bill after World War II involved another mistake that is relevant to the COVID-19 crisis and the shortcomings of a more traditional security framework. Following World War II, the G.I. Bill created a social compact of sorts with veterans. The G.I. Bill provided the housing and education benefits and is credited with helping to build America’s middle class following the war.^[214] Many Black veterans who qualified for G.I. Bill benefits, however, were wrongly denied. As one report explains:

[Black] [v]eterans had to go to their local veterans’ administration offices. These were staffed almost exclusively by [w]hite officials and this is a particular problem in the South They were denied access to mortgages . . . college tuition [and] a chance to participate in the post-war economic boom, which saw [w]hite wealth surge and Black wealth barely keep up with inflation.^[215]

Thus, while the G.I. Bill created postwar economic prosperity and security for some, these benefits were not extended on an equal basis reflecting an ethics of care. The G.I. Bill might have been a cornerstone for shoring up security—human and economic security of veterans and their families—had it been extended on an equal basis. Instead, and as COVID-19 starkly revealed, the nation continues to be plagued by deep underlying racial inequalities of wealth, housing, education, and health access, among other inequalities. These gross inequalities led to disproportionate impact on Black and Latinx communities in particular during the pandemic—a phenomenon I have coined the “Color of Covid.”^[216]

Conclusion

In this Essay, I have argued that the “War against COVID-19” framework is inadequate for addressing the twin health and economic crises of the pandemic now that we are beyond the immediate onset of these crises. The militarization and securitization paradigms privilege law and order over justice. As an alternative approach, I argue for an ethics of care. Past moments of crisis—such as the Civil War, Great Depression, and World War II—ushered in periods of transformation, establishing a more robust role for the government in the protection of rights and economic security. In providing security to some, but not all, however, the transformative potential of these earlier periods was limited. The current moment calls for significant rethinking of our commitments to each other and the state’s role in supporting those commitments. By applying an ethics of care, we can take advantage of the transformative potential from this crisis—even while honoring the tremendous tragedy and loss endured— to go further than previous moments of crisis. Lawmakers must build on this moment by adopting laws that better protect the pay and well-being of all workers, including those in the care economy.

In sum, this pandemic has forever colored our understanding of not only the crisis of contagion, but also of the ethics of community, connection and care. As Arundhati Roy suggests, we must acknowledge the tragedy of the pandemic, while also utilizing this crisis for transformational change by viewing the pandemic as a “portal” to a more just and equal world^[217]—where we are each valued as essential, not disposable.

 

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[1] President Joseph R. Biden, Remarks by President Biden and Vice President Harris During a Briefing at the Centers for Disease Control and Prevention, White House (Mar. 19, 2021), https://www.whitehouse.gov/briefing-room/speeches-remarks/2021/03/19/ remarks- by-president-biden-and-vice-president-harris-during-a-briefing-at-the-centers-for- disease-control-and-prevention [perma.cc/4CX3-UQCB]. It is challenging to determine to whom to attribute the specific phrase, “War On COVID-19,” as many similar formulations emerged worldwide early on in the pandemic. But one prominent proponent of the wartime framework globally was United Nations (UN) Secretary-General Antonio Guterres. In what might be viewed as a pivot from “Global War on Terror” to “Global War Against COVID,” the UN chief stated that the world is “at war” against COVID-19 and claimed that “[w]e need the logic and urgency of a war economy, to boost the capacity of our weapons[.]” UN Chief Says World at ‘War’ Against COVID-19, Al Jazeera (May 24, 2021), https://www.aljazeera.com/news/2021/5/24/un-chief-says-world-at-war-against-covid-19 [https://perma.cc/6NWA-MT9R]; see also Oscar Guinea & Iacopo Monterosa, A Global Effort to Win the War Against COVID-19, EUR. CTR. INT’L POL. ECON. (Mar. 2020), https://ecipe.org/blog/global-effort-against-covid19 [perma.cc/BX4K-VMGY].

[2]. Jack Shafer, Opinion, Behind Trump’s Strange ‘Invisible Enemy’ Rhetoric, Politico (Apr. 9, 2020, 4:24 PM), https://www.politico.com/news/magazine/2020/04/09/trump- coronavirus-invisible-enemy-177894 [https://perma.cc/724A-3J33].

[3]. Sharon LaFraniere & Noah Weiland, U.S. Plans to End Public Health Emergency for Covid in May, N.Y. Times (Jan. 30, 2023), https://www.nytimes.com/2023/01/30/us/politics/biden- covid-public-health-emergency.html [https://perma.cc/3BAE-V947]. In fact, as this article goes to press, the Biden administration has just lifted the U.S. national emergency, which allowed the government to take sweeping steps to respond to the virus and support the country’s economic, health and welfare systems,” though “[t]he public health emergency [which] underpins tough immigration restrictions at the U.S.-Mexico border . . . is set to expire on May 11[,]” as announced previously. The Associated Press, Biden Ends COVID National Emergency After Congress Acts, NPR (Apr. 11, 2023), https://www.npr.org/2023/04/11/1169191865/biden-ends-covid-national-emergency [https://perma.cc/S6TV-535K].

[4]. For the purposes of this Essay, I rely on the helpful distinction between “national security emergencies” and “social emergencies” that Aslı Bâli and Hanna Lerner have proposed. See Aslı U. Bâli & Hanna Lerner, Social Emergency: Rethinking Emergency Framings in the Age of COVID-19 and Climate Change (manuscript at 1) (on file with author)[hereinafter Bâli & Lerner, Social Emergency] (analyzing and distinguishing “the institutional implications of social emergencies, which require more deliberative, inclusive and participatory mechanisms of democratic decision-making, compared with the national security emergency model of decisive top-down executive action checked by judicial oversight”).

[5]. J. Benton Heath, Making Sense of Security, 116 AM. J. INT’L L. 289, 291 (2022) [hereinafter Heath, Making Sense of Security]; see also Arnold Wolfers, “National Security” as an Ambiguous Political Symbol, 67 Pol. Sci. Q. 481, 481 (1952) (highlighting dangers of the ambiguities inherent in the inchoate notion of security). But see David A. Baldwin, The Concept of Security, 23 Rev. Int’l Studs. 5, 12 (1997) (arguing that security is not “essentially contested” but rather “a confused or inadequately explicated concept”).

[6]. See, e.g., Aziz Rana, Who Decides on Security?, 44 Conn. L. Rev. 1417 (2012) (raising critical questions concerning the scope of security and who defines it); Antony T. Anghie, Introduction to the Symposium on J. Benton Heath, “Making Sense of Security,” 116 Am. J. Int’l L. Unbound 225 (2022) (introducing symposium and raising critical questions about the notion of security).

[7]. See, e.g., Matiangai Sirleaf, Racing National Security: Introduction to the Just Security Symposium, Just Sec. (July 13, 2020), https://www.justsecurity.org/71373/racing-national- security-introduction-to-the-just-security-symposium [https://perma.cc/4NYY-26VF] (introducing symposium and providing an overview of the notion of racing national security). For my contribution to the “Racing National Security” symposium, see Catherine Powell, “Viral Convergence”: Interconnected Pandemics as Portal to Racial Justice, Just Sec. (Aug. 5, 2020), https://www.justsecurity.org/71742/viral-justice-interconnected-pandemics-as- portal-to-racial-justice [https://perma.cc/9PEG-ELYF] [hereinafter Powell, Viral Convergence] (placing the idea of racing national security within the context of Black thinkers who have, throughout history, helped redefine what is meant by notions of security).

[8]. See, e.g., Cynthia H. Enloe, Bananas, Beaches And Bases: Making Feminist Sense Of
International Politics (Univ. of Cal. Press, 2014) (pioneering work developing feminist criticism of prevailing notions of national security); Cynthia Enloe, Globalization & Militarism: Feminists Make The Link 55 (2d ed. 2016).

[9]. See generally Symposium on J. Benton Heath, “Making Sense of Security”, Am. J. Int’l L.225 (2022), https://www.cambridge.org/core/journals/american-journal-of- international-law/ajil-unbound-by-symposium/j-benton-heath-making-sense-of- security [https://perma.cc/ZE5W-VW4Y] (symposium exploring various critical perspectives on security law).

[10]. Heath, Making Sense of Security, supra note 5, at 293. As Heath wisely notes:
A key theme here is the struggle by non-state actors—whether overpoliced communities, Indigenous groups, small-scale food producers, or communities living near the sites of extractive industry—to have their own knowledge about their security interests recognized and prioritized as authoritative. Achieving such recognition is particularly difficult in an international legal system that has historically privileged diplomats acting through foreign offices, or, more recently, networked groups of trained and recognized experts on a wide array of global problems. This disconnect raises critical insights regarding the extent to which international regimes—even those that claim to uphold a humanized vision of security—remain undemocratic, unresponsive, and inaccessible.
Id.

[11]. Id. at 291 (arguing that underlying different approaches to “security” is “a deeper struggle over whose knowledge matters when constructing and responding to the most pressing threats”). Drawing links between international law and critical security studies, Health points out, “The connection between knowledge, politics, and power is a key ingredient of many critical theories to which this Essay is in some degree of debt.” Id., at 291, n.26 (citing Roberto Mangabeira Unger, Knowledge And Politics (1975); Michel Focuault, Security, Territory, Population: Lectures At The Collège De France 1977–1978 (Michel Senellart ed., Graham Burchell trans., 2007); Catharine A. MacKinnon, Feminism, Marxism, Method, and the State: Toward Feminist Jurisprudence, 8 Signs 635 (1983)).

[12]. See Julian Arato, Kathleen Claussen, & J. Benton Heath, The Perils of Pandemic Exceptionalism, 114 Am. J. Int’L L. 627, 628 (defining exceptionalism as “a paradigm of justification according to which deviations from primary rules are absolved by way of ‘exceptions’ (express or implied), and in which claims of exception can be expected to proliferate”). This insight also draws inspiration from Mary Dudziak’s work (and conversations with her) on the culture of war and on linkages between war, race, and American democracy. See generally Mary L. Dudziak, War Time: An Idea, Its History, Its Consequences (2012).

[13]. See David Cole, Judging the Next Emergency: Judicial Review and Individual Rights in Times of Crisis, 101 Mich. L. Rev. 2565, 2587–88 (2004) (arguing for the role of courts in checking the political branches and noting that “[i]f the line between emergency and normal is evanescent, a doctrine of extraconstitutional authority cannot be safely cabined to emergency times”).

[14]. WHO Coronavirus (COVID-19) Dashboard, World Health Org., https://covid19.who.int [https://perma.cc/FUV4-NSRB].

[15]. Situation by Region, Country, Territory & Area, World Health Org., https://covid19. who.int/table [https://perma.cc/CB83-G2JR]. More broadly, countless people have died and suffered indirectly from COVID-19 due to factors including (1) the impact of the pandemic on other aspects of the healthcare system (including more restricted access to healthcare to treat other severe illness, due to the strain on the healthcare system), (2) the mental health impacts, and (3) the economic wreckage resulting from various quarantine limitations, including lockdown measures that forced employers to suspend operations or close permanently, leading to loss of jobs and income for workers. See, e.g., John D. Birkmeyer, Amber Barnato, Nancy Birkmeyer, Robert Bessler & Jonathan Skinner, The Impact of the Covid-19 Pandemic on Hospital Admissions in the United States, 39 Health Affairs 2010 (Sept. 24, 2020), https://www.healthaffairs.org/doi/epdf/10.1377/hlthaff.2020.00980 [https://perma.cc/7CYF-SQVZ]. Noting:
Hospital admissions fell . . . with the declaration of the [COVID-19] pandemic in the US in March 2020, with several reports of hospitals operating at less than 50 percent capacity. Volumes fell in part because hospitals purposefully curtailed elective surgery and other noncritical medical services. . . [and because] many patients with acute medical illness, whether life threatening or not, did not seek hospital care out of fear of contagion or concerns about access at COVID- 19 overrun hospitals. Id. at 2010. See also Stress in America 2021: One Year Later, a New Wave of Pandemic Health Concerns, Am. Psych. Ass’n (Mar. 11, 2021), https://www.apa.org/news/press/releases/stress/ 2021/one- year-pandemic-stress [https://perma.cc/HE53-CR6S] (highlighting impact on mental health); Chart Book: Tracking the Recovery From the Pandemic Recession, CTR. ON BUDGET AND POL’Y PRIORITIES, (Mar. 31, 2023), https://www.cbpp.org/research/economy/tracking-the- recovery-from-the-pandemic-recession [https://perma.cc/HU4Y-YKXZ] (noting how the “COVID-19 pandemic precipitated a devastatingly sharp contraction of economic activity and huge job losses in early 2020, as government restrictions and fear of the virus kept people at home and businesses shut”).

[16]. Ayana Archie, Joe Biden Says the COVID-19 Pandemic Is Over. This is What the Data Tells Us, NPR (Sept. 19, 2022), https://www.npr.org/2022/09/19/1123767437/joe-biden-covid-19- pandemic-over [https://perma.cc/2BKB-365X] (indicating that COVID-19 was shifting to a new phase, though Biden’s own top medical advisor, Dr. Anthony Fauci, seemed to question President Biden’s characterization that “[t]he pandemic is over,” raising questions as to whether the pandemic is truly over and at what point it has or will became endemic, similar to the seasonal flu).

[17]. Catherine Powell, Color of Covid and Gender of Covid: Essential Workers, Not Disposable People, 33 Yale J.L. & Feminism 1 (2021) [hereinafter Powell, Color of Covid and Gender of Covid]; Catherine Powell, Color of Covid: The Racial Justice Paradox of our new Stay-at-Home Economy, CNN: Op. (Apr. 18, 2020, 9:13 AM), https://www.cnn.com/2020/ 04/10/opinions/covid-19-people-of-color-labor-market-disparities-powell/index.html [https://perma.cc/TH62-77KG] (coining “Color of Covid,” acknowledged by Don Lemon and Van Jones in their CNN cable news mini-series, “The Color of Covid”); Catherine Powell, The Color and Gender of Covid: Essential Workers, Not Disposable People, Think Global Health (June 4, 2020), https://www.thinkglobalhealth.org/article/color-and-gender-covid-essential- workers-not-disposable-people [https://perma.cc/TZ9Y-BZW7] (coining and theorizing “Gender of Covid” as well as its intersection with the Color of Covid).

[18]. See Legal Defense Fund, This Defining Moment: A Conversation with Sherrilyn Ifill and Bryan Stevenson, YouTube (Oct. 22, 2020), https://www.youtube.com/watch?v=19IxQtW-hK0 [perma.cc/73NJ-3Y7Q] (calling for a “Marshall Plan—a (Thurgood) Marshall Plan,” Sherilynn Ifill stresses the urgent need to redress the disproportionate impact of COVID on communities of color). Note that at the time of this talk, Sherilyn Ifill was Director-Council of the NAACP Legal Defense and Educational Fund. She has since stepped down from that role and is now the Vernon E. Jordan, Jr., Esq. Endowed Chair in Civil Rights at Howard University, where she is founding the 14th Amendment Center for Law & Democracy. The original Marshall Plan grew out of a 1947 commencement address by Secretary of State George C. Marshall at Harvard University, where Marshall called for U.S. assistance to restore the economic infrastructure of Europe, “[a]s the war-torn nations of Europe faced famine and economic crisis in the wake of World War II, [and] the United States proposed to rebuild the continent in the interest of political stability and a healthy world economy.” The Marshall Plan, Nat’l Archives, https://www.archives.gov/exhibits/featured-documents/marshall- plan [https://perma.cc/B4QL-9B8J]. In calling for a “Thurgood Marshall Plan,” Ifill invokes the bold economic recovery of the original Marshall Plan and calls upon Thurgood Marshall’s legacy of racial equality from his work as her predecessor as the NAACP Legal Defense and Educational Fund Director-Counsel and later the first Black U.S. Supreme Court Justice. In considering a postpandemic recovery, it is important to note that we may not fully “recover” from the pandemic anytime soon as COVID-19 itself may become endemic, according to health experts. See Nicky Phillips, The Coronavirus is Here to Stay—Here’s What That Means, Nature (Feb. 16, 2021), https://www.nature.com/articles/d41586–021–00396–2 [https://perma.cc/8HN4-S5LE]

[19]. For further discussion, see Part III.C. More broadly, civil rights leaders have used the discourse of “crisis,” to provide urgency to the “fierce urgency of now.” See Martin Luther King, I Have a Dream, March on Washington (Apr. 28, 1963) (explaining that the “fierce urgency of now” illustrates that in a divided country, we need one another and that we are stronger when we move forward together). See also History of the Crisis, NAACP, https://naacp.org/find-resources/history-explained/history-crisis [https://perma.cc/JA4E-LG8Y] (quoting WEB Dubois, speaking in his first editorial at the 1910 founding of The Crisis, which became the NAACP’s official magazine, of the “danger of race prejudice” and “that this is a critical time in history of the advancement of men[.]”).

[20]. Heath, Making Sense of Security, supra note 5, at 290–291 (quoting Christine Chinking & Mary Kaldor, International Law And New Wars 564 (2017)).

[21] Id.

[22]. Id. at 291; see also Amna A. Akbar, Toward a Radical Imagination of Law, 93 N.Y.U. L. Rev. 405, 452–53 (2018); Monica Bell, Black Security and the Conundrum of Policing, Just Sec. (July 15, 2020), https://www. justsecurity.org/71418/black-security-and-the- conundrum-of-policing [https:// perma.cc/GQS2-5582].

[23]. See, e.g., Arato et al., supra, note 12; Dudziak, supra, note 12.

[24]. Cf. Arato et al., supra note 12, at 628.

[25]. Brian Bennet & Tessa Berenson, ‘Our Big War.’ As Coronavirus Spreads, Trump Refashions Himself as a Wartime President, Time, https://time.com/5806657/donald-trump- coronavirus-war-china/ [https://perma.cc/ETD3-ACEV] (“President Lyndon Johnson declared a war on poverty. President Richard Nixon declared a war on drugs. Now President Donald Trump has gone to war with a virus.”).

[26]. Id. (noting a picture of Trump’s prepared remarks, in one instance, which showed “corona” crossed out and replaced with “Chinese”).

[27]. Eric Lipton, David E. Sanger, Maggie Haberman, Michael D. Shear, Mark Mazzetti, & Julian E. Barnes, He Could Have Seen What Was Coming: Behind Trump’s Failure on the Virus, N.Y. Times (July 20, 2021), https://www.nytimes.com/2020/04/11/us/politics/ coronavirus-trump- response.html [https://perma.cc/W2YS-TLJV] (discussing missteps and inept response of the Trump administration); Edward Luce, Inside Trump’s Coronavirus Meltdown, Fin. Times (May 13, 2020), https://www.ft.com/content/97dc7de6-940b-11ea-abcd-371e24b679ed [https://perma.cc/435S-P3C3].

[28]. Bennet & Berenson, supra note 25 (“Trump’s rhetorical shift to saying the country is at war reflects a strategy to blunt criticism and push blame onto a foreign power.”).

[29]. Biden, supra note 1.

[30]. Jennifer Steinhauer, Overwhelmed, More States Turn to National Guard for Vaccine Help, N.Y. Times (Jan. 14, 2021), https://www.nytimes.com/2021/01/14/us/politics/coronavirus-vaccine- national-guard.html [https://perma.cc/9JEY-GU5H]. For the authorization by the Biden administration, see Memorandum from the White House to the Sec’y of Def., Sec’y of Homeland Sec., to Extend Federal Support to Governors’ Use of the National Guard to Respond to COVID- 19 and to Increase Reimbursement and Other Assistance Provided to States (Jan. 21, 2021), https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/21/extend- federal-support-to-governors-use-of-national-guard-to-respond-to-covid-19-and-to- increase-reimbursement-and-other-assistance-provided-to-states [https://perma.cc/W945- BSA2].

[31]. Robert T. Stafford Disaster Relief and Emergency Assistance Act, Pub. L. No. 93-288 (1974) (codified as amended at 42 U.S.C. §§ 5121–5208 (1988)). See also, Alexandra Phelan, Explainer National Emergency Declarations and COVID-19, Just Sec. (Mar. 13, 2020), https://www.justsecurity.org/69190/explainer-national-emergency-declarations-and-covid-19 [https://perma.cc/BZ4N-WNJH].

[32]. National Emergencies Act, 50 U.S.C. § 1621 (1976).

[33]. Public Health Services Act, 42 U.S.C. § 265 (2012).

[34]. Id. For a more detailed discussion, see Mark Nevitt, The Coronavirus, Emergency Powers, and the Military: What You Need to Know, Just Sec. (Mar. 16, 2020), https://www.justsecurity.org/69215/the-coronavirus-emergency-powers-and-the- military-what-you-need-to-know [https://perma.cc/M29Y-DEU6] (discussing the Trump administration’s declaration of a public health emergency in January 2020).

[35]. Nevitt, supra note 34 (discussing the Trump administration’s declaration of a public health emergency in January 2020, including implications for the use of military personnel).

[36]. Defense Production Act of 1950, 50 U.S.C. §§ 4501–4568.

[37] Id.

[38]. Anshu Siripurapu, What Is the Defense Production Act?, Council On Foreign Rels. (Dec. 22, 2021, 3:40 PM), https://www.cfr.org/in-brief/what-defense-production-act [https://perma.cc/D8ZY-LPUQ].

[39]. Id. (noting that these earlier statutes gave then-president Franklin D. Roosevelt sweeping powers to control the nation’s domestic economy during World War II). Created with the aim of harnessing the industrial capacity of the nation for war, the DPA has been reauthorized numerous times since 1950, amended to reach not only the traditional defense industrial base, “but also the nation’s critical infrastructures, like public health and critical technologies.” James E. Baker, Use the Defense Production Act to Flatten the Curve, Just Sec. (Mar. 20, 2020), https://www.justsecurity.org/69275/use-the-defense-production-act-to-flatten-the-curve [https://perma.cc/XD3L-M4ZK] (“The Act includes authority to prioritize existing contracts, allocate resources, incentivize the manufacture of materials and products, and survey industry to determine which entities are producing or can produce needed materials, services, and goods.”).

[40] Siripurapu, supra note 38.

[41]. 50 U.S.C. § 4511(a)(2); see also Siripurapu, supra note 38.

[42]. Siripurapu, supra note 38 (noting that companies can be authorized to “coordinate with each other, which might otherwise violate antitrust laws”).

[43]. War Powers Resolution of 1973, 50 U.S.C. §§ 1541–1548 (providing the president authority to wage war for sixty days prior to congressional authorization).

[44]. Lucas Guttentag, Coronavirus Border Expulsions: CDC’s Assault on Asylum Seekers and Unaccompanied Minors, Just Sec. (Apr. 13, 2020), https://www.justsecurity.org/69640/ coronavirus-border-expulsions-cdcs-assault-on-asylum-seekers-and-unaccompanied- minors [https://perma.cc/4YAB-VGU4].

[45]. 42 C.F.R. § 71.40 (issued pursuant to Public Health Services Act, 42 U.S.C. Section 265 (2012)) (emphasis added).

[46]. Suzanne Monvak, Supreme Court Keeps Title 42 Border Policy in Place for Now, Roll Call (Dec. 19, 2022), https://rollcall.com/2022/12/19/supreme-court-keeps-title-42-border- policy-in-place-for-now [https://perma.cc/P66A-R3AC] (“The Supreme Court . . . put a temporary hold on a lower court order that would end the so-called Title 42 policy this week as the justices considered a request from over a dozen Republican-led states to preserve the pandemic-related border restrictions.”)

[47]. Bâli & Lerner, Social Emergency, supra note 4; Hanna Lerner & Aslı U. Bâli, Power to the Parliaments, Boston Rev. (Aug. 27, 2020), https://www.bostonreview.net/articles/asli- u-bali-hanna-lerner-power-parliaments [https://perma.cc/U9AD-V4C4] [hereinafter Lerner & Bâli, Power to the Parliaments].

[48]. Lerner & Bâli, Power to the Parliaments, supra note 47.

[49]. Bâli & Lerner, Social Emergency, supra note 4.

[50]. Id.

[51]. David E. Pozen & Kim Lane Scheppele, Executive Underreach, in Pandemics and Otherwise, 114 Am. J. Int’L L. 608 (2020). “Legal scholars are familiar with the problem of executive overreach . . . Yet in other countries, including the United States and Brazil, a very different and in some respects opposite problem has arisen, wherein the national executive’s efforts to control the pandemic have been disastrously insubstantial and insufficient.” Id. at 608.

[52]. Id. at 609 (emphasis omitted).

[53]. See, e.g., Cameron Peters, A Detailed Timeline of All the Ways Trump Failed to Respond to the Coronavirus, VOX (June 8, 2020), https://www.vox.com/2020/6/8/21242003/trump-failed- coronavirus-response [https://perma.cc/9WBX-3WFH].

[54]. Pozen & Scheppele, supra note 51, at 613.

[55]. Daniel Wolfe & Daniel Dale, ‘It’s Going to Disappear’: A Timeline of Trump’s Claims That COVID-19 Will Vanish, CNN (Oct. 31, 2020), https://www.cnn.com/interactive/ 2020/10/politics/covid-disappearing-trump-comment-tracker [https://perma.cc/84R5- HH73] (quoting Trump’s February 10, 2020 statement). The first likely COVID-19 death in the United States was on February 6, 2020. Thomas Fuller & Mike Baker, Coronavirus Death in California Came Weeks Before First Known U.S. Death, N.Y. Times (May 7, 2020), https://www.nytimes.com/2020/04/22/us/coronavirus-first-united-states-death.html [https://perma.cc/BWP6-CXQN].

[56]. Wolfe & Dale supra note 55 (“Since February [2020], the President has declared at least 38 times that Covid-19 is either going to disappear or is currently disappearing.”).

[57]. Pozen & Scheppele, supra note 51 at 613 (citing Gavin Bade, Despite Expanded DPA, Confusion Reigns Over Coronavirus Industrial Response, Politico (Apr. 3, 2020), https://www.politico.com/news/2020/04/03/trump-dpa-medical-goods-164036 [https://perma.cc/RA52-UMFA]).

[58]. Pozen & Scheppele, supra note 51, at 613 (citing Aaron Rupar, How Trump Turned Ventilators Into a Form of Patronage, VOX (Apr. 10, 2020), https://www.vox.com/2020/4/10/21215578/trump-ventilators-coronavirus-cory-gardner-colorado-jared- polispatronage [https://perma.cc/3BSS-BST7]).

[59]. Pozen & Scheppele, supra note 51, at 613.

[60]. Baker, supra note 39 (noting the sluggish response of the Trump administration to act, despite a Trump executive order invoking the DPA).

[61]. Memorandum from President Donald J. Trump to the Secretary of Health and Human Services, Memorandum on Order Under the Defense Production Act Regarding General Motors Company (Mar. 27, 2020), https://trumpwhitehouse.archives.gov/presidential- actions/memorandum-order-defense-production-act-regarding-general-motors- company [https://perma.cc/6SPG-FSXN]; Memorandum from President Donald J. Trump to the Secretary of Homeland Security, Memorandum on Order Under the Defense Production Act Regarding 3M Company (Apr. 2, 2020), https://trumpwhitehouse. archives.gov/presidential-actions/memorandum-order-defense-production-act- regarding-3m-company [https://perma.cc/2JNX-96ZB].

[62]. Exec. Order No. 13,910, 85 Fed. Reg. 17,001 (Mar. 26, 2020).

[63]. Exec. Order No. 13,911, 85 Fed. Reg. 18,403 (Apr. 1, 2020).

[64]. Memorandum from President Donald J. Trump to the Secretary of Health and Human Services, Memorandum on Allocating Certain Scarce or Threatened Health and Medical Resources to Domestic Use (Apr. 3, 2020), https://web.archive.org/web/2020040 4011508/https://www.whitehouse.gov/presidential-actions/memorandum-allocating-certain- scarce-threatened-health-medical-resources-domestic-use [https://perma.cc/ J8MK-JCWB].

[65]. Siripurapu, supra note 38 (quoting CFR Senior Fellow Jennifer Hillman).

[66]. Exec. Order No. 13,917, 85 Fed. Reg. 26,313 (May 1, 2020) (citing emergency powers under the Defense Production Act).

[67]. Powell, Color of Covid and Gender of Covid, supra note 17, at 13–14.

[68]. Exec. Order No. 13,917, supra note 66 (noting that closures of these plants “threaten the continued functioning of the national meat poultry supply chain, undermining critical infrastructure during the national emergency”).

[69]. Jane Mayer, How Trump is Helping Tycoons Exploit the Pandemic, New Yorker (July 13, 2020), https://www.newyorker.com/magazine/2020/07/20/how-trump-is-helping-tycoons- exploit-the-pandemic [https://perma.cc/SU4L-VK3K] (documenting how one of Trump’s top donors—the owner of one of America’s largest poultry plants—leveraged the COVID-19 crisis to force poultry workers to continue working, even while stripping them of protections).

[70]Public Health Services Act, 42 U.S.C. § 265 (2012).

[71]. See Priscilla Alvarez, Biden Administration Announces Official End of Title 42, the Trump-Era Pandemic Restrictions at the US Border, CNN (Apr. 1, 2022), https://www.cnn.com/2022/04/01/politics/immigration-title-42-repeal-cdc/ index.html [https://perma.cc/QV34-TYQU] (“Former President Donald Trump invoked a public health authority, known as Title 42, at the onset of the coronavirus pandemic, a move that was immediately met with skepticism by immigrant advocates, public health experts, and even officials within the administration who believed it to be driven by political motivations.”).

[72]. Lucas Guttentag, Coronavirus Border Expulsions: CDC’s Assault on Asylum Seekers and Unaccompanied Minors, Just Sec. (Apr. 13, 2020), https://www.justsecurity.org/ 69640/coronavirus-border-expulsions-cdcs-assault-on-asylum-seekers-and- unaccompanied-minors [https://perma.cc/K8NP-Y8GW].

[73]. Jaya Ramji-Nogales, How an Internal State Department Memo Exposes “Title 42” Expulsions of Refugees as Violations of Law, Just Sec. (Oct. 5, 2021), https://www.justsecurity.org/ 78476/how-an-internal-state-department-memo-exposes-title-42-expulsions-of- refugees-as-violations-of-law [https://perma.cc/VQV2-9TQB].

[74]. Id.

[75]. Fiona Harrigan, Opinion, Trump’s COVID-19 Border Logic Doesn’t Check Out, S. Fla. Sun Sentinel (June 16, 2020), https://www.sun-sentinel.com/opinion/commentary/fl-op-com- coronavirus-border-wall-20200616-funstjpenfhwpitdyrpoaswvyy-story.html [https://perma.cc/585L-STN8] (discussing Trump’s effort to use diverted defense funds for his Southern border wall as misguided and based on incorrect information); see also Brakkton Booker, Trump Administration Diverts $3.8 Billion In Pentagon Funding To Border Wall, NPR (Feb. 13, 2020), https://www.npr.org/2020/02/13/805796618/trump- administration-diverts-3–8-billion-in-pentagon-funding-to-border-wall [https://perma.cc/TY63-XFLK] (reporting on Trump’s effort to divert military funding for his Southern border wall).

[76]. Catherine Powell, Race, Gender and Nation in an Age of Shifting Borders, 24 UCLA J. Int’l L. FOREIGN AFF. 133 (2020) [hereinafter Powell, Race, Gender and Nation].

[77]. Cf. Emily Cochrane, House Votes to Block Trump’s Emergency Declaration About the Border,
N.Y. Times (Feb. 26, 2019), https://www.nytimes.com/2019/02/26/us/ politics/national- emergency-vote.html [https://perma.cc/T2B8-7FNK].

[78]. See Harrigan, supra note 75. Harrigan notes:
Simply put, many Mexicans worry that the coronavirus is crossing the border from the U.S. As early as March, in an ironic twist of fate, Mexicans demanded that their government crackdown on Americans crossing the border. It’s no wonder that the number of Mexican crossers stopped at the southwest border has dwindled so precipitously as the coronavirus pandemic persists.
Id.

[79]. See id.

[80]. Bennet & Berenson, supra note 25.

[81]. Exec. Order No. 14,001, 86 Fed. Reg. 7,219 (Jan. 26, 2021).

[82]Id.

[83]Id.

[84]See President Joesph R. Biden, Remarks on the Administration’s COVID-19 Vaccination Efforts, The White House (Mar. 2, 2021), https://www.whitehouse.gov/briefing- room/speeches-remarks/2021/03/02/remarks-by-president-biden-on-the- administrations-covid-19-vaccination-efforts [https://perma.cc/6R2S-Z748]; see also Siripurapu, supra note 38; Sydney Lupkin, Defense Production Act Speeds Up Vaccine Production, NPR (Mar. 13, 2021), https://www.npr.org/sections/health-shots/ 2021/03/13/976531488/defense-production-act-speeds-up-vaccine-production [perma.cc/3SKM-VN8N] (discussing Biden’s use of DPA to address reasons underlying shortages, including supply chain issues).

[85]. See, e.g., Exec. Order No. 13,996, 86 Fed. Reg. 7,197 (Jan. 26, 2021); see also Siripurapu, supra note 38.

[86]. See Fact Sheet: President Biden Announces New Actions to Protect Americans and Help Communities and Hospitals Battle Omicron, White House (Dec. 21, 2021), https://www.whitehouse.gov/briefing-room/statements-releases/2021/12/21/fact-sheet- president-biden-announces-new-actions-to-protect-americans-and-help- communities-and-hospitals-battle-omicron [perma.cc/N9JP-YMM5]; see also Siripurapu, supra note 38.

[87]. Public Health Services Act, 42 U.S.C. § 265 (2012).

[88]See Alvarez, supra note 71.

[89]. See id.

[90]. Monvak, supra note 46.

[91]. Pricilla Alvarez & Ariane de Vogue, Biden Administration Tells Supreme Court Title 42 Will End When Public Health Emergency Expires, CNN (Feb. 7, 2023), https://www.cnn.com/ 2023/02/07/politics/title-42-biden-administration-public-health-emergency-expire [https://perma.cc/5ALX-8NMR].

[92]. Biden Administration Ends Title 42. What Now? NPR: Consider This (May 14, 2023), https://www.npr.org/2023/05/12/1175865631/biden-administration-ends-title- 42-what-now [https://perma.cc/F2PL-ENFV].

[93]. Shafer, supra note 2 (“Calling his crusade ‘our big war’ and directly enlisting the military in the
fight allows Trump to frame a public health crisis as a military operation: He is the commander in chief, we are his foot soldiers, our patriotic duty is to obey him, and the entire planet is his battleground.”).

[94]. See, e.g., Nevitt, supra note 34.

[95]. See Biden, supra note 1 and accompanying text. Biden’s own reference to Americans being “frontline troops” in the “war” on COVID-19 enlists all Americans to rally around the flag.

[96]See, e.g., Nevitt, supra note 34.

[97] See supra notes 58–63 and accompanying text.

[98]. See supra notes 30, 81–86 and accompanying text.

[99]. Siripurapu, supra note 38.

[100]. 50 U.S.C. § 4502(a)(1).

[101]. Siripurapu, supra note 38.

[102]. See Elizabeth Hinton, From The War On Poverty To The War On Crime: The Making Of Mass Incarceration In America (2016).

[103]. See supra notes 66–79 and accompanying text.

[104]. See supra notes 75–79 and accompanying text.

[105]. See supra notes 66–69 and accompanying text.

[106]. Laura Kurtzman, Trump’s ‘Chinese Virus’ Tweet Linked to Rise of Anti-Asian Hashtags on Twitter, UCSF, Special Notice About Covid-19 (Mar. 18, 2021)
https://www.ucsf.edu/news/2021/03/420081/trumps-chinese-virus-tweet-linked-rise-anti- asian-hashtags-twitter [https://perma.cc/6L2E-YYYC] (discussing study published in March 18, 2021 in the American Journal of Public Health).

[107]. Id. (quoting the tweet and noting that “the number of anti-Asian hashtags associated with #chinesevirus grew much faster” after [Trump’s] March 16[, 2020] tweet”).

[108]. Id.; see ADL, Reports of Anti-Asian Assaults, Harassment and Hate Crimes Rise as Coronavirus Spreads, ADL Blog (June 18, 2020), https://www.adl.org/blog/reports-of-anti-asian-assaults- harassment-and-hate-crimes-rise-as-coronavirus-spreads [https://perma.cc/6XC7-8GEQ] (noting incidents of “being told to ‘Go back to China,’ being blamed for ‘bringing the virus’ to the United States, being referred to with racial slurs, spat on, or physically assaulted” and that “[s]tatements by public officials referring to COVID-19 as the ‘Chinese virus,’ ‘Kung Flu’ or ‘Wu Flu’ may be exacerbating the scapegoating and targeting of the [Asian American Pacific Islander] community”); Cady Lang, Hate Crimes Against Asian Americans Are on the Rise. Many Say More Policing Isn’t the Answer, Time (Feb. 18, 2021), https://time.com/5938482/asian-american-attacks [https://perma.cc/G8J5-SZVQ]; Kimmy Yam, There Were 3,800 Anti-Asian Racist Incidents, Mostly Against Women, In Past Year, NBC News (Mar. 16, 2021); https://www.nbcnews.com/news/asian- america/there-were-3-800-anti-asian-racist-incidents-mostly-against-n1261257 [https://perma.cc/55MU-574Q] (noting the targeting of female and elderly Asian Americans, indicating “the coalescence of racism and sexism, including the stereotype that Asian women are meek and subservient, likely factors into this disparity,” and quoting Russell Jeung, Professor of Asian American studies at San Francisco State University, who points out, “[t]here is an intersectional dynamic going on that others may perceive both Asians and women and Asian women as easier targets’”); Nicole Chavez, A Woman’s Brutal Attack Exposed a Torrent of Anti-Asian Violence After the Atlanta Shootings, CNN (Apr. 1, 2021), https://www.cnn.com/2021/04/01/us/asian-americans-attacks/index.html [https://perma.cc/CDE7-5BEU] (discussing the recent shooting of Asian American women in Atlanta-based spas as well as the stereotype of Asian American women being fetishized and hypersexualized).

[109]. David Wallechinsky, What is the Real Reason George Bush Invaded Iraq?, Huffington Post (Nov. 23, 2005), https://www.huffpost.com/entry/what-is-the-real-reason-g_b_11116 [https://perma.cc/99NF-T8Y6] (discussing President George W. Bush’s ill–advised decision to invade Iraq).

[110]. See Mary L. Dudziak, “You Didn’t See Him Lying . . . Beside the Gravel Road in France”: Death, Distance, and American War Politics, 42 Diplomatic Hist. 1 (2018) (critiquing lengthy conflicts following the September 11, 2021 terror attacks); DUDZIAK, supra note 12 (same); Rosa Brooks, How Everything Became War And The Military Became Everything: Tales From The Pentagon (2016) (critiquing overbreadth of powers by the Defense Department).

[111]. See, e.g., Viet Thanh Nguyen, The MLK Speech We Need Today Is Not the One We Remember Most, Time (Jan. 17, 2019), https://time.com/5505453/martin-luther-king-beyond-vietnam [https://perma.cc/AG6Z-3YDJ] (“King’s prophecy connects the war in Vietnam with our forever wars today, spread across multiple countries and continents, waged without end from global military bases numbering around 800.”).

[112]. See< Kaine, Young, Lee, Roy, Spanberger, & Cole Introduce Bill to Repeal 1991 & 2002 AUMFs, Formally Ending Gulf & Iraq Wars, Tim Kaine (Feb. 9, 2023) https://www.kaine. senate.gov/press-releases/kaine-young-lee-roy-spanberger-and-cole-introduce-bill-to- repeal-1991_2002-aumfs-formally-ending-gulf--iraq-wars?utm_campaign=wp_the_daily_202&utm_medium=email&utm_source=newsletter&wpisrc=nl_daily202 [https://perma.cc/W7XA-GUWC] (noting the risk of allowing presidents to use zombie Authorizations for the Use of Military Force (AUMF) to justify actions never envisioned by the AUMF and lamenting, “The 1991 and 2002 AUMFs—which passed 32 and 20 years ago, respectively—authorized the use of force for the Gulf and Iraq wars, but Congress has failed to repeal these AUMFs to prevent potential misuse by future presidents.”).

[113]. See discussion supra notes 82–86, 100–107; Ramji-Nogales, supra note 73; see also Alex Thompson & Alexander Ward, Top State Adviser Leaves Post, Rips Biden’s Use of Trump-era Title 42, Politico (Oct. 4, 2021), https://www.politico.com/news/2021/10/04/top-state- adviser-leaves-post-title-42-515029 [https://perma.cc/7RAS-UQ4B] (quoting Biden administration senior State Department advisor, Harold Koh, who criticized “the continuing use of Title 42 to rebuff the pleas of thousands of Haitians and myriad others arriving at the Southern Border who are fleeing violence, persecution, or torture”).

[114]. Powell, Color of Covid and Gender of Covid, supra note 17, at 5.

[115]. Id. (citing sources comparing the violent arrests of people in communities of color for failure to wear face masks while predominantly white crowds sunbathed in Central Park and other “white spaces”). My Yale article also notes the disparate response to Black Lives Matter protesters (and curfew violators) and the armed protesters who demonstrated against face masks, quarantine measures, and other COVID-19 restrictions from which we ostensibly needed to be “liberate[d],” according to Trump tweets. Powell, Color of Covid and Gender of Covid, supra note 17, at n.13. See Mary McCord, Trump’s ‘LIBERATE MICHIGAN!’ Tweets Incite Insurrection. That’s Illegal., Wash. Post (Apr. 17, 2020), https://www.washingtonpost.com/outlook/2020/04/17/liberate-michigan-trump- constitution [https://perma.cc/FMT8-5JKH].

[116]. Powell, Viral Convergence, supra note 7; Catherine Powell, Introductory Remarks, Interlocking Pandemics, 114 Am. Soc’y Int’l L. 371 (2021) (outlining the notion of the interlocking pandemics of COVID-19, economic devastation, and inequality in introductory remarks for a panel on “COVID‐19: Understanding the Disparate Impact on Marginalized Communities” at the 113th Annual Meeting of the 2020 American Society of International Law).

[117]. Arundhati Roy, The Pandemic is a Portal, Fin. Times (Apr. 3, 2020), https://www.ft.com/ content/10d8f5e8–74eb-11ea-95fe-fcd274e920ca [https://perma.cc/VNA2-25DT] [hereinafter Roy, The Pandemic is a Portal, Fin. Times]; see also Arundhati Roy, The Pandemic Is a Portal, Yes! Mag. (Apr. 17, 2020), https://www.yesmagazine.org/ video/coronavirus-pandemic-arundhati-roy [https://perma.cc/LC3Q-LV8Q]; Rahm Emanuel, Opinion, Let’s Make Sure This Crisis Doesn’t Go to Waste, Wash. Post (Mar. 25, 2020, 8:00 AM), https://www.washingtonpost.com/opinions/2020/03/25/lets-make-sure- this-crisis-doesnt-go-waste [https://perma.cc/X5E7-KXPV].

[118]. These Reconstruction Amendments are, of course, the Thirteenth, Fourteenth, and Fifteenth Amendments. U.S. Const. amends. XIII, XIV, XV.

[119]. Henry Louis Gates, Jr., Stony The Road: Reconstruction, White Supremacy, And The Rise Of Jim Crow (2019).

[120]. Rebecca E. Zietlow, It’s Time for a Third Reconstruction, Hill (June 17, 2020), https://thehill.com/opinion/civil-rights/503182-its-time-for-a-third-reconstruction [https://perma.cc/E7JV-AAW2] (providing a historical overview of these first and second Reconstruction periods and calling for a third Reconstruction).

[121]. Id.; Adam Serwer, The New Reconstruction, Atlantic (Oct. 2020), https://www.the atlantic.com/magazine/archive/2020/10/the-next-reconstruction/615475 [https:// perma.cc/A42D-3HK9]; Richard Rothstein & Valerie Wilson, Reconstruction 2020 Panel, Econ. Pol’y Inst. (July 9, 2020), https://www.epi.org/event/reconstruction-2020- valuing-black-lives-and-economic-opportunities-for-all [perma.cc/5LK7-W6ML] (calling for new Reconstruction akin to the period following the Civil War).

[122]. Powell, Viral Convergence, supra note 7.

[123]. See, e.g., Gates, supra note 119 (discussing the roll back of voting rights for Black Americans and the rise of Jim Crow segregation in the aftermath of Reconstruction).

[124]. Kimberlé Williams Crenshaw, Race, Reform and Retrenchment: Transformation and Legitimation in Antidiscrimination Law, 101 Harv. L. Rev. 1331 (1988); Terry Smith, Whitewash: Unmasking White Grievance At The Ballot Box 16 (2020) (exploring how white identity contributed to the 2016 election of President Trump by analogizing voting to a jury deliberation, in that like the jury, voting is a collective decisionmaking process undertaken on behalf of the democratic body politic, not on behalf of the individual voter); Catherine Powell & Camille Gear Rich, The ‘Welfare Queen’ Goes to the Polls: Race-Based Fractures in Gender Politics and Opportunities for Intersectional Coalitions, 19 Geo. L.J. 105 (2020) (exploring how raced and gendered narratives are mobilized to roll back voting rights against the backdrop of the current retrenchment of civil rights).

[125]. See Adam Liptak & Jason Kao, The Majority Supreme Court Decisions in 2022, N.Y. Times (June 30, 2022), https://www.nytimes.com/interactive/2022/06/21/us/major-supreme- court-cases-2022.html [https://perma.cc/KH5X-52JM] (noting cases trimming the federal government’s regulatory authority, including, inter alia, in the contest of vaccine mandates in the workplace, per NFIB v. Dept. of Labor) (citing Nat’l Fed’n of Indep. Bus. v. Dep’t of Lab., Occupational Safety and Health Admin., 595 U.S. (2022)).

[126]. See, e.g., discussion supra note 71 and accompanying text. The more ambitious “Build Back Better” bill was narrowed in the ultimately adopted Inflation Reduction Act. Proposals to address police violence and misconduct have also stalled in Congress, such as The George Floyd Justice in Policing Act of 2020. See, e.g., Felicia Sonmez & Mike DeBonis, No Deal on Bill to Overhaul Policing in the Aftermath of Protests over Killing of Black Americans, Wash. Post (Sept. 22, 2021, 7:35 PM) https://www.washingtonpost.com/powerpost/policing-george-floyd-congress- legislation/2021/09/22/36324a34-1bc9-11ec-a99a-5fea2b2da34b_story.html [https://perma.cc/7452-ZV6X] (explaining the collapse of efforts to overhaul policing in the aftermath of large-scale protests).

[127]. Michelle Goldberg, Opinion, The New Great Depression is Coming. Will There Be a New New Deal?, N.Y. Times (May 2, 2020), https://www.nytimes.com/2020/05/02/ opinion/sunday/coronavirus-new-deal-ubi.html [https://perma.cc/NVD8-UQH9].

[128]. Eric Rauchway, Why The New Deal Matters (Yale Univ. Press 2021).

[129]. J.R. Vernon, World War II Fiscal Policies and the End of the Great Depression, 54 J. Econ. Hist. 850, 850 (1994) (arguing that World War II fiscal policies were in fact a major contributor to the recovery from the Depression, not merely a topping-off of the recovery after it had been substantially completed).

[130]. Minor League Pay, RevealL (Mar. 27, 2021), https://revealnews.org/podcast/minor-league-pay [https://perma.cc/R9N9-S3QV] (discussing the history behind the exclusion of certain employees from the New Deal era labor laws).

[131]. James Roosevelt, Jr. & Henry Scott Wallace, A 21st Century New Deal, Hill (July 22, 2020), https://thehill.com/opinion/campaign/508585-a-21st-century-new-deal [https://perma.cc/JT6T-LEYC]; Jennifer Rubin, Opinion, Joe Biden’s New New Deal, Wash. Post (Mar. 15, 2021), https://www.washingtonpost.com/opinions/2021/03/15/joe-bidens- new-new-deal [https://perma.cc/T3RT-DB8G]. It is important to note also the earlier discussion of the Obama-Biden administration’s New “New Deal” in Michael Grunwald, The New New Deal: The Hidden Story Of Change In The Obama Era (2012).

[132]. See Unemployment Rates During the COVID-19 Pandemic, Cong. Rich. Serv. (Apr. 14, 2021), https://crsreports.congress.gov/product/pdf/R/R46554/12 [https://perma.cc/2ULP-9VEE] (discussing unemployment trends prompted by quarantine measures and other COVID-19 restrictions that necessitated a largely stay-at-home pandemic economy during the first year of the pandemic).

[133]. Aamer Baig, Bryce Hall, Paul Jenkins, Eric Lamarre, & Brian McCarthy, The COVID-19 recovery will be digital: A plan for the first 90 days, Mckinsey Digit. (May 14, 2020), https://www.mckinsey.com/capabilities/mckinsey-digital/our-insights/the-covid-19- recovery-will-be-digital-a-plan-for-the-first-90-days [https://perma.cc/CSR2-H6FJ] (proposing efforts to reskill those who lost jobs for the digital economy).

[134]. Powell, Color of Covid and Gender of Covid, supra note 17, at 16–17, 36.

[135]. Rubin, supra note 131.

[136]. Infrastructure Investment and Jobs Act, Pub. L. No. 117–58, 135 Stat. 429. The Infrastructure Act supported, among other things: roads, bridges, and other infrastructure projects; modernizing public transit; improving nationwide broadband access and infrastructure; rebuilding the U.S. national electric grid; and upgrading national water infrastructure. See Katie Lobosco & Tami Luhby, Here’s What’s in the Bipartisan Infrastructure Package, CNN (Nov. 15, 2021, 5:47 PM), https://www.cnn.com/2021/07/28/politics/infrastructure- bill-explained/index.html [https://perma.cc/25RU-ZQX6].

[137]. See National Industrial Recovery Act (NIRA) of 1933, Pub. L. No. 73-67, 48 Stat. 195.

[138]. Rubin, supra note 131. Jim Tankersley, Biden Signs Infrastructure Bill, Promoting Benefits for Americans., N.Y. TIMES (Nov. 15, 2021), https://www.nytimes.com/2021/11/ 15/us/politics/biden-signs-infrastructure-bill.html [https://perma.cc/8S6S-YJAZ] (noting that spending in the infrastructure legislation “nearly on par” with FDR’s New Deal).

[139]. For further discussion, see Powell, Color of Covid and Gender of Covid, supra note 17, at 39.

[140]. President Biden’s initial, more ambitious “human infrastructure bill” (or “Build Back Better” bill) as passed by the House, would have supported, inter alia: climate change through clean energy and technology; free universal preschool nationwide; a one-year extension of the child tax credit; a permanent national paid leave program; affordable in-home care through Medicaid; in-home care workers; and affordable housing. See Nik Popli & Abby Vesoulis, The House Just Passed Biden’s Build Back Better Bill. Here’s What’s in It, Time (Nov. 19, 2021, 9:48 AM), https://time.com/6121415/build-back-better-spending-bill-summary [https://perma.cc/BS7J-LK4S]; see also Susan Milligan, Biden Sells ‘Human Infrastructure’ Plan Despite Imperiled Bipartisan Package, U.S. News & World Rep. (June 29, 2021), https://www.usnews.com/news/politics/articles/2021-06-29/biden-sells-human- infrastructure-plan-despite-imperiled-bipartisan-package [https://perma.cc/7EFR-E8YC].

[141]. While not as robust, nonetheless, the Inflation Reduction Act, authorizes $370 billion in spending on energy and climate change, $300 billion in deficit reduction, three years of Affordable Care Act subsidies, prescription drug reform, and tax reform. Inflation Reduction Act of 2022, Pub. L. No. 117-169; see also Fact Sheet: The Inflation Reduction Act Supports Workers and Families, White House (Aug. 19, 2022), https://www.whitehouse.gov/briefing-room/statements-releases/2022/08/19/fact-sheet- the-inflation-reduction-act-supports-workers-and-families [https://perma. cc/JA4K-3ZZT].

[142]. President Joseph R. Biden, Remarks on the Anniversary of the COVID-19 Shutdown, The White House (Mar. 11, 2021), https://www.whitehouse.gov/briefing-room/speeches- remarks/2021/03/11/remarks-by-president-biden-on-the-anniversary-of-the-covid-19- shutdown [perma.cc/9Y8Y-6W4Y].

[143]. American Rescue Plan Act of 2021, Pub. L. No. 117–2, 135 Stat. 4.

[144]. President Joseph R. Biden, supra note 142.

[145]. Mary Anne Glendon, A World Made New: Eleanor Roosevelt And The Universal Declaration Of Human Rights (2002).

[146]. Catherine Powell, Human Rights at Home: A Domestic Policy Blueprint for a New Administration, Am. Const. Soc’y L. Pol’y (2008).

[147]. See Legal Defense Fund, supra note 18 (calling for “a (Thurgood) Marshall Plan,” Sherilynn Ifill stresses the urgent need to redress the disproportionate impact of COVID-19 on communities of color).

[148]. Stephanie Ruhle, Girls Who Code Founder: Any economic recovery plan should have moms at center, MSNBC at 2:40 (Jan. 27, 2021), https://www.msnbc.com/stephanie- ruhle/watch/girls-who-code-founder-any-economic-recovery-plan-should-have- moms-at-center-100097605912 [https://perma.cc/8M2S-69KW]. Saujani notes, “[Moms] are not America’s social safety net. Id. at 3:40.

[149]. See Mom’s First News, Moms F1rst, https://momsfirst.us/news [https://perma.cc/XL7U- G2RK] (discussing “Marshall Plan for Moms” ad in the New York Times); Veronica Stracqualursi, 50 Prominent Men Join Push for ‘Marshall Plan for Moms’ Proposal, CNN Pol. (Feb. 26, 2021), https://www.cnn.com/2021/02/26/politics/marshall-plan-for-moms-male- allies/index.html [https://perma.cc/63WF-98DN] (discussing “Marshall Plan for Moms” ad in the Washington Post as well as the New York Times).

[150]. For example, instead of continuing to focus primarily on economic growth through Gross National Product (GNP), over time, the United Nations began to issue the Human Development Report (HDI), following Nobel laureate and Harvard economist Amartya Sen's capacities approach to development by measuring other indicators of well-being, such as access to health and education. See, e.g., Amartya K. Sen, Foreword, Readings In Human Development: Concepts, Measures And Policies For A Development Paradigm, vii-xiii (Sakiko Fukuda-Parr & A.K. Shiva Kumar eds., 2005); see generally Amartya K. Sen, Development As Freedom (1999) (laying the groundwork for development economics to move beyond essentially exclusive reliance on economic growth as a way to measure progress).

[151]. See Mary Dudziak, Cold War Civil Rights: Race And The Image Of American Democracy (2011) (discussing U.S. foreign policy underpinnings of Brown v. Bd of Ed.).

[152]. President Franklin Delano Roosevelt, Annual Address to Congress: The “Four Freedoms” (Jan. 6, 1941).

[153]. Mary Dudziak, Desegregation as Cold War Imperative, 41 Stan. L. Rev. 61, 110–11 (1988) (discussing the Justice Department’s amicus brief in Brown v. Bd of Ed.).

[154]. Id. (quoting Brief of Department of Justice Attorney General of the United States, James P. McGraner Amicus Curiae at 6, Brown v. Board of Educ., 347 U.S. 483 (1954), supplemented sub nom. Brown v. Board of Educ., 349 U.S. 294 (1955)).

[155]. Id. at 111, n. 287 (quoting Brief for Appellants on Reargument at 194, Brown v. Board of Educ., 347 U.S. 483 (1954)).

[156] See supra notes 103–116 and accompanying text (discussing the law and order approach embedded in the wartime and emergency powers approach).

[157] See also Amy Kapczynski & Gregg Gonsalves, The New Politics of Care, Bos. Rev. (Apr. 27, 2020), https://bostonreview.net/articles/gregg-gonsalves-amy-kapczynski-new-deal-public- health-we-need [https://perma.cc/Z9DH-QEB7] (arguing for “a new politics of care, one organized around a commitment to universal provision for human needs; countervailing power for workers, people of color, and the vulnerable; and a rejection of carceral approaches to social problems). As suggested in the discussion that follows, infra Part IV.A, an ethics of care is a philosophical framework and a politics of care is a political strategy based on an ethic sof care. A law of care refers to a legal framework grounded in an ethics of care philosophy.

[158] See discussion in the Introduction of this Article. As I have discussed elsewhere, President Obama’s National Security Strategy also sought to broaden the idea of “security.” See Powell, Viral Convergence, supra note 7 (“When I worked for the White House National Security Council, I saw first-hand how elements of Obama’s foreign policy sought to promote economic and other forms of justice as cornerstones of our national interests in a secure and prosperous world.”).

[159] What Is Human Security?, United Nations Trust Fund Human Security,
https://www.un.org/humansecurity/what-is-human-security [https://perma.cc/3Y6H- 88GP] (“As noted in General Assembly resolution 66/290, ‘human security is an approach to assist Member States in identifying and addressing widespread and cross-cutting challenges to the survival, livelihood and dignity of their people.’ It calls for ‘people-centered, comprehensive, context-specific and prevention-oriented responses that strengthen the protection and empowerment of all people.’”).

[160] See supra, note 20 (discussing how activist are offering alternative visions of security).

[161] See, e.g., Nel Noddings, Caring: A Relational Approach to Ethics and Moral Education (2d ed. 1984) (noting gender neutral application of an ethics of care); Carol Gilligan, In A Different Voice (1982) (same).

[162] Gilligan, supra note 161.

[163] See, e.g., Noddings, supra note 161; Gilligan, supra note 161..

[164] Walter E. Conn, Book Review for Nel Noddings, Caring: A Relational Approach to Ethics and Moral Education, 12 Horizons 209 (2014).

[165] Id.

[166] Id.

[167] Id.

[168] Id.

[169] Powell, Color of Covid and Gender of Covid, supra note 17, at 15 and accompanying text.

[170] Catharine MacKinnon, Feminism Unmodified: Discourses on Life and Law (1987) (articulating the feminist theory of dominance and subordination).

[171] Martha Albertson Fineman, Universality, Vulnerability, and Collective Responsibility, 16 Etjics F. 103, 108 (2021) [hereinafter Fineman, Universality].

[172] Martha A. Fineman, The Vulnerable Subject: Anchoring Equality in the Human Condition, 20 Yale J. L. & Feminism 1, 11 (2008) [hereinafter Fineman, Vulnerable Subject].

[173] Fineman, Universality, supra note 171.

[174] Id. at 114 n.6.

[175]  See Powell, Color of Covid and Gender of Covid, supra note 17, at 35 (relying on Fineman,
Vulnerable Subject, supra note 171, at 1). Noting:
While observers point to the tech and green economies as the “future of work,” the pandemic reveals that another large component of the future of work is care work—jobs where women (particularly women of color) are already well- represented (in fact, disproportionately so). Thus, even while creating ladders of opportunity for women and people of color into the digital economy, green economy, and other expanding sectors, lawmakers should imagine ways to support less visible, but critical important, expanding sectors, such as the care economy
Id.

[176] Id.

[177] Id.

[178] See Derrick A. Bell, Jr., Comment, Brown v. Board of Education and the Interest-Convergence Dilemma, 93 Harv. L. Rev 518 (1980).

[179] See Powell, Color of Covid and Gender of Covid, supra note 17, at 37–39.

[180] Ruha Benjamin, Harvard Carr Center for Human Rights Policy, Viral Justice: Pandemics, Policing, and Portals, Harvard Carr Center for Human Rights Policy (Jul. 16, 2020) (as heard live and paraphrased by author).

[181] Id. (arguing for the transformative potential of the COVID-19 crisis).

[182] Zachary B. Wolf, Biden Declares the Pandemic is Over. People Are Acting Like It Too, CNN Pol. (Sept. 19, 2022), https://www.cnn.com/2022/09/19/politics/biden-covid- pandemic-over-what-matters/index.html [https://perma.cc/SB9G-RN3P] (discussing shift from the pandemic to endemic phase of COVID-19).

[183] Guidance for COVID-19, Ctr. Diseases Control (Mar. 2021), https://www.cdc.gov/ coronavirus/2019-ncov/communication/guidance.html [https://perma.cc/6AP3- YCCQ].

[184] By “care economy,” I am referring to the sector of the economy for the provision of various forms of care-by-care providers. See Heather McCulloch & Ai-jen Poo, Opinion, The Care Economy as an Infrastructure Investment, Hill (Feb. 2, 2021), https://thehill.com/opinion/white- house/536924-the-care-economy-as-an-infrastructure-investment?rl=1 [https://perma.cc/V8HX-UTJ5] (discussing the importance of the care economy and legislative proposals to support it).

[185] See Powell, Color of Covid and Gender of Covid, supra note 17, at 41; McCulloch & Poo, supra note 184.

[186] Andrew Osterland, Aging Baby Boomers Raise the Risk of a Long-Term-Care Crisis in the U.S., CNBC (Nov. 8, 2021), https://www.cnbc.com/2021/11/08/aging-baby-boomers-raise-the-risk- of-a-long-term-care-crisis-in-the-us.html [https://perma.cc/4DE7-6GVX].

[187] Id.

[188] McCulloch & Poo, supra note 184.

[189] See id.

[190] See Bobo Diallo, Seemin Qayum & Silke Staab, UN Women, COVID-19 and the Care Economy: Immediate Action and Structural Transformation For a Gedner-Responsive Recovery 3 (2020) (“With COVID-19, many of these workers have been dismissed with no compensation or access to social protection. Those who continue to work report difficulties commuting to workplaces in contexts of lockdown, heavier workloads and limited protection from infection.”). The impact of the pandemic has also been particularly harsh on other domestic workers, particularly housekeepers. See David Segal, Housekeepers Face a Disaster Generations in the Making, N.Y. Times (Sept. 18, 2020) https://www.nytimes.com/2020/09/18/business/housekeepers-covid.html [https://perma.cc/K5P6-J4YX] (“Ghosted by their employers, members of the profession are facing ‘a full-blown humanitarian crisis—a Depression-level situation.’”).

[191] The Brian Lehrer Show, Looking Back at COVID Strategies, WNYC at 16:50, https://www.wnyc.org/story/the-brian-lehrer-show-2023-03-10 [https://perma.cc/YX2P- PGYJ] (quoting interview in which Dr. Dhruv Kullar notes that at points during the pandemic, 30 to 40 percent of COVID-19 deaths were in nursing homes, and the nursing home population is only 1 percent of the U.S. population); Covid-19 Nursing Home Data, Ctrs. Medicare & Medicaid Servs., https://data.cms.gov/covid-19/covid-19-nursing-home-data [https://perma.cc/LA4A-DAPU] (containing data of COVID-19 rates among both staff and those who live in assisted living facilities); Sarah True, Nancy Ochieng, Juliette Cubanski, Priya Chidambaram, & Tricia Neuman, Overlooked and Undercounted: The Growing Impact of COVID-19 on Assisted Living Facilities, Kaiser Fam. Found. (Sept. 1, 2020), https://www.kff.org/coronavirus-covid-19/issue-brief/overlooked-and-undercounted- the-growing-impact-of-covid-19-on-assisted-living-facilities [https://perma.cc/53T8- YL8A] (noting the high rates of COVID-19 transmission and deaths in assisted living and nursing home facilities).

[192] See McCulloch & Poo, supra note 184.

[193] For example, while the National Labor Relations Act (NLRA) is the primary guarantor of the rights of U.S. workers to organize, it excludes domestic workers. See ‘You’re mostly isolated and alone.’ Why some domestic workers are vulnerable to exploitation, Pbs News Weekend (Aug. 12, 2018) (noting “farm workers and domestic workers are excluded from the National Labor Relations Act”), https://www.pbs.org/newshour/nation/ai-jen-poo-domestic-workers- exploitation [https://perma.cc/6GNM-FHH2].

[194] Minor League Pay, supra note 130.

[195] See Bell, supra note 178, at 523.

[196] See Caring Across Generations, https://caringacross.org [https://perma.cc/LLB2-YZGG].

[197] See McCulloch & Poo, supra note 184.

[198] See id.

[199] There are, however, a few indications that the parts of Biden’s Build Back Better bill related to the care economy, such as the enhanced child tax credit, can be implemented by Biden or congressional Democrats without the broader support of Republicans. See Carmen Reinicke, Biden ‘Not Sure’ Enhanced Child Tax Credit, Free Community College Will Stay in Build Back Better, CNBC (Jan. 20, 2022, 1:25 PM), https://www.cnbc.com/2022/01/20/biden- not-sure-child-tax-credit-free-community-college-will-stay-in-bill-.html [https://perma.cc/7TWW-GRZH]. Some U.S. Senate Republicans have proposed legislation that would provide more limited support for parents—such as Senator Mitt Romney’s proposal to send $350 per month, per child, to families making more than $10,000 per year. See Joseph Zeballos-Roig, Mitt Romney Introduces New Plan to Send Most Parents up to $350 Monthly Checks Per Kid, Bus. Insider (Jun. 15, 2022, 11:55 AM), https://www.businessinsider.com/mitt-romney-child-allowance-monthly-checks- 2022-6?op=1 [https://perma.cc/E29K-7F52]. But particularly troubling is one Republican-sponsored bill claiming to provide support only to reinforce the anti-abortion fetal personhood theory. See Child Tax Credit for Pregnant Moms Act of 2022, S. 3537, 117th Cong. § 2(a) (2022) (proposing a child tax credit that pregnant women could claim for “unborn child[ren],” beginning at fertilization); Lois M. Collins, Should Pregnant Women Get a Child Tax Credit Before Their Baby is Born?, Desert News (Feb. 1, 2022, 5:17 PM), https://www.deseret.com/2022/2/1/22911345/should-pregnant-women-get-a-child-tax- credit-before-their-baby-is-born-romney-lee-daines-pregnancy [https://perma.cc/QX9E- AA3F]. Such developments have gained renewed significance in the aftermath of the Supreme Court’s reversal of the landmark abortion rights case, Roe v. Wade. See Dobbs v. Jackson Women’s Health Org., 142 U.S. 2228 (2022). Note the Republicans’ ostensible renewed interest in supporting pro-natalist policies, including presumed concern for economically disadvantaged children, following the reversal of Roe v. Wade in Dobbs v. Jackson’s Women’s Health Org. See, e.g., Jessica Chasmar, Republicans Push Pro-Family, Pro-Mother Policies in the Wake of Dobbs Ruling, Fox News (July 18, 2022), https://www.foxnews.com/politics/republicans-push-pro-family-pro-mother-policies- dobbs-ruling [https://perma.cc/UVG6-R5NX].

[200] See McCulloch & Poo, supra note 184.

[201] See Bell, supra note 178, at 523.

[202] See Powell, Color of Covid and Gender of Covid, supra note 17 (discussing the contrast between universal and differential vulnerability).

[203] Fineman, Vulnerable Subject, supra note 172; Fineman, Universality, supra note 171.

[204] Carol Rasmussen, Local Lockdowns Brought Fast Global Ozone Reductions, NASA Finds, NASA (June 9, 2021), https://climate.nasa.gov/news/3089/local-lockdowns-brought-fast- global-ozone-reductions-nasa-finds [https://perma.cc/92SK-6G23]. In demonstrating that it is actually possible to address the climate crisis, the pandemic helped us realize that rethinking our commitments to each other applies not only across space (i.e., across the globe), but across time (i.e., for future generations).

[205] David Roberts, The Green New Deal, Explained, Vox (Mar. 30, 2019), https://www.vox.com/energy-and-environment/2018/12/21/18144138/green-new-deal- alexandria-ocasio-cortez [https://perma.cc/Y667-45CQ]..

[206] Henry Louis Gates Jr. Points to Reconstruction as the Genesis of White Supremacy, NPR (Apr. 3, 2019), https://www.npr.org/2019/04/03/709094399/henry-louis-gates-jr-points-to- reconstruction-as-the-genesis-of-white-supremacy [perma.cc/DP8B-L632].

[207] Id.

[208] Id.

[209] Id.

[210] Minor League Pay, supra note 130.

[211] Byron Pitts, “Harvest of Shame” Fifty Years Later, CBS Evening News (Nov. 24, 2010), https://www.cbsnews.com/news/harvest-of-shame-50-years-later [https://perma.cc/ AR7B- B4CS] (exposing the poor pay and working conditions of the farm workers).

[212] Id.

[213] As for the collapse of care economy during the initial phase of the COVID shut down, see supra note 135 and accompanying text (discussing how many in the care economy lost jobs). For food security during the pandemic, see supra notes 66-69 and accompanying text (discussing how Trump mischaracterized the threat COVID-19 posed to the nation’s food supply as a basis to force meat and poultry plants to continue production even in the absence of social distancing protocols and protective equipment for the workers).

[214] David Martin, Many Black Veterans were Denied G.I. Bill benefits After World War II. Some Lawmakers Want to Correct that Historical Error, CBS News (Dec. 27, 2022, 7:38 PM), https://www.cbsnews.com/news/g-i-bill-revival-black-veterans-congress [https://perma.cc/6BNS-6KFT] (omitting internal quotation marks).

[215] Id.

[216] Powell, Color of Covid and Gender of Covid, supra note 17. While the G.I. Bill entrenched race inequality, American women were, in some ways, liberated by work during WWII (as the symbol of “Rosie the Riveter” illustrated). With the entry of women into the workforce continued after the war, parents increasingly turned to care workers, paid family leave, and other infrastructures of care. See Mike Konczal, Freedom From the Market: America's Fight to Liberate Itself From the Grip of the Invisible Hand (2021) (discussing how women fought for daycares to be established in domestic factories during WWII, which were some of the first free daycare centers in the United States). Thus, even as the war effort sought security abroad, it paved the way for economic security and greater independence for at least some women at home. As discussed above, caregivers have been essential for allowing parents to outsource care work responsibilities, illustrating how the care economy has been indispensable for gender equality. See discussion supra Part IV.B.1 (discuss how care work is job-enabling for working parents, particularly women, who bear disproportionate care work).

[217] See Roy, The Pandemic is a Portal, Fin. Times supra note 117.