Regulating Health Care: Perspectives From Government Failure During the COVID-19 Pandemic

David A. Hyman (Georgetown University), Charles Silver (University of Texas), Regulating Health Care: Perspectives From Government Failure During the COVID-19 Pandemic, SSRN (2021):

Health care is beset with an array of market failures (e.g., informational asymmetries, externalities, monopolization, and public goods). In theory, government can intervene to fix these market failures, allowing scarce resources to be devoted to their highest use at the lowest possible cost with the fewest possible distortions -- thereby promoting life, liberty, and the pursuit of happiness. That theory has launched thousands of laws, tens of thousands of regulations, and hundreds of thousands of pages of law review articles -- all premised on the assumption that markets are flawed but government is not. Of course, it takes the willful suspension of disbelief to accept the premise that governmental failures do not occur. Even under the best of circumstances, government failures do occur. We focus in this article on the failures of public health experts/professionals in the U.S. Department of Health & Human Services – particularly the Centers for Disease Control and Prevention (CDC) in responding to COVID-19. If anyone had the technical expertise and resources to do a good job responding to COVID-19, it was the CDC. If this agency was not up to the task of responding with a minimum amount of competence and diligence to COVID-19, then the case for expecting government to correct market failures without making things worse becomes far more tenuous.