Mariano-Florentino Cuellar (Stanford Law School) has posted Coalitions, Autonomy, and Regulatory Bargains in Public Health Law on SSRN. Here is the abstract:
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This paper investigates three examples of how and when public health agencies implemented policy innovations in difficult political environments. It then connects these descriptions to a discussion of agency capture theories and their limits, as well as to the development of the state and its laws in a pluralist democracy. The first episode occurred during the 1990s, when USDA sought to target foodborne pathogens through new regulatory rules. The effort culminated with implementation of the Hazard Analysis Critical Control Point (HACCP) framework to harness the private sector’s knowledge about how to improve safety conditions, along with a more demanding pathogen testing regime. Across town, the Food and Drug Administration (FDA) undertook an effort to assert jurisdiction over tobacco products, a goal opposed by tobacco companies. After the U.S. Supreme Court invalidated the FDA regulation, the FDA and congressional allies sought statutory changes and eventually helped to enact the Family Smoking Prevention and Tobacco Control Act of 2010. The third story discusses the evolution of the CDC as its health surveillance capacity has grown, and the under-appreciated role the agency plays in shaping public health responses – including some with considerable implications for powerful economic actors such as pharmaceutical companies. These examples showcase how Americans live and work in a public health context different from what existed two or three decades ago, and how agency- driven policy innovations played a major role in some of those changes. I compare these experiences to the work of agencies performing functions less associated with public health, such as immigration or firearms regulation, and discuss some preliminary ideas about how the public health agencies managed to use their partial autonomy to advance bold but reasonable reforms despite a political economy context that did not favor their work.
