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2003’s most famous politicians are begging the US to stop ignoring biosecurity.

A bipartisan group of retired public officials is begging Congress to finally get serious on preventing pandemics.

The Bipartisan Commission on Biodefense released a new report this morning urging policymakers to fund, and the executive branch to implement, what it calls the Apollo Program for Biodefense, a $100 billion, 10-year effort that would prepare the nation to meet any future viral threat head-on. The new report, called the Athena Agenda (they like Greek gods), takes the framework the Apollo report outlined and provides more detail on how to fund and achieve it. Commission deputy director Ambika Bumb, a medical scientist who served in the Biden White House and Trump State Department, told me that the new report aims to put the recommendations in terms that “Congress can directly take and put in legislation.”

Among other priorities, the plan includes funding for: creating vaccine candidates for each of the 26 families of viruses known to infect humans; developing antiviral medications that can work against a broad spectrum of viruses; building out manufacturing capacity for vaccines, antivirals, tests, and other countermeasures; deploying genomic sequencing as a way to track outbreaks; developing broadly useful diagnostic technologies and better regulatory processes for approving and disseminating plentiful rapid tests; and improving security in laboratories dealing with dangerous viruses.

The White House, to its credit, has already proposed funding around this level. Most recently, in its 2023 budget proposal, the Biden administration asked for $88.2 billion in funding over five years on pandemic preparedness. That includes $40 billion for the Office of the Assistant Secretary for Preparedness and Response (ASPR) at the Department of Health and Human Services to “invest in advanced development and manufacturing of countermeasures for high priority threats and viral families, including vaccines, therapeutics, diagnostics, and personal protective equipment (PPE),” as well as $12.1 billion in research funding for the National Institutes of Health for vaccine, therapeutics, and diagnostics development.

Bumb, who worked on the Biden administration’s pandemic preparedness agenda during her time in the White House, notes that the Biden proposal actually drew on the original Apollo plan put out by the bipartisan commission. That’s part of why the new commission report is so notable: This is a group that’s capable of driving policymaking at high levels.

That said, Congress has yet to appropriate money at the commission’s desired level to prevent the next pandemic. It’s barely interested in further funding response to the current, ongoing pandemic, which is still killing hundreds of Americans a day. A group of senators recently cut a deal for $10 billion to fund Covid-19 response, after slashing funding the White House wanted to help fight the pandemic abroad — only to have Republicans block the deal on the Senate floor over separate immigration concerns. Even if the funding eventually passes, it’ll have to wait until after the Easter recess ends on April 22.

The commission members are desperate for Congress to act

The biodefense commission is a bipartisan group that has existed since 2014 and aims to “provide for a comprehensive assessment of the state of US biodefense efforts, and to issue recommendations that will foster change.” Its initial report in 2015 called for heavy investment to “prevent, deter, prepare for, detect, respond to, attribute, recover from, and mitigate biological incidents.” That call was obviously not heeded in time for the Covid-19 pandemic.

The group is chaired by former Sen. Joe Lieberman and former Pennsylvania governor and Secretary of Homeland Security Tom Ridge. The other members include former Congress member and Secretary of Health and Human Services Donna Shalala; former Senate Majority Leader Tom Daschle; former Reps. Susan Brooks and James Greenwood; former FDA commissioner Peggy Hamburg; and former Justice Department official Kenneth Wainstein.

This is not some group of big-spending left-wing ideologues. It’s a collection of old-fashioned moderates, one of whom (Lieberman) is perhaps most famous for frustrating Democratic spending ambitions on health care. Theirs is a dying breed given the extent of partisan polarization in 2022.

We at Vox argued for a number of these measures in our recent series, Pandemic-Proof. And the commission notes that had the plan been in place before Covid-19 (for instance, after the commission’s initial 2015 report), the US response to the pandemic would’ve been vastly improved. “Had we created a vaccine for SARS-CoV-1,” the virus that caused the 2003 SARS outbreak, “we could have produced a vaccine for SARS-CoV-2,” which causes Covid-19, “even faster,” they write.

“This is not about some theoretical future threat only,” Bumb told me. It might have been theoretical when the commission first issued its 2015 report, but after Covid-19, the consequences of inaction should be incredibly vivid.

This Apollo program pales next to the budget of the original Apollo project aimed at putting a man on the Moon. That effort, the commission estimates, cost roughly $280 billion in today’s dollars; the International Space Station cost about $255 billion.

The federal government can make major investments like this when it wants to. The question when it comes to pandemic prevention is, does it want to?

What followed was a circus. Kennedy went on a media tour presenting himself as a devout coach who “made a commitment with God” to performatively pray after each game. Good Morning America did a segment on him. Conservative media ran with headlines like “High School Coach Bullied Into Dropping Prayer at Football Games.” By the end of the month, 47 members of Congress — all Republicans — wrote to Leavell in support of Kennedy.

At the conclusion of the next game, coaches, players, and members of the general public mobbed the field when Kennedy knelt to pray. A federal appeals court described the rush of people onto the field as a “stampede,” and the school principal complained that he “saw people fall” and that, due to the crush of people, the district was unable “to keep kids safe.” Members of the school’s marching band were knocked over by the crowds.

Eventually, the school placed Kennedy on leave, and Kennedy did not reapply for his coaching position the next year. But he did sue, claiming that he has a constitutional right to say “a quiet prayer by himself at midfield after” football games where he is a coach.

For what it’s worth, Kennedy does appear to have made some concessions to the establishment clause. His brief to the Supreme Court largely asserts a right to say a post-game prayer on the 50-yard line, not a right to hold “motivational” prayer sessions surrounded by public school students.

But Kennedy is still claiming that he had a right to make a public performance of his own religious beliefs, while he was very visibly acting as a representative of a public school district, and in full view of a crowd of students, parents, players, and spectators.

Under existing law, that’s not allowed.

Kennedy’s actions obviously violate the Constitution

In Engel, the 1962 school prayer case, the Court offered a historical account of why government officials should not promote a particular method of prayer.

In the mid-16th century, the English Parliament approved the Book of Common Prayer, which “set out in minute detail the accepted form and content of prayer and other religious ceremonies to be used in the established, tax-supported Church of England.” This led to perpetual lobbying, and frequent strife, over just what prayers the government should endorse and which ones it should reject. Powerful religious groups “struggled among themselves to impress their particular views upon the Government,” while less powerful religious believers literally fled the country — many of them becoming early American colonists.

According to Engel, the First Amendment was drafted in large part to ward off this kind of strife among religious factions. The founding generation, Justice Black wrote, were not willing “to let the content of their prayers and their privilege of praying whenever they pleased be influenced by the ballot box.”

Alternatively, several justices have warned against government endorsements of religion. As Justice O’Connor warned in her 1984 concurring opinion, such endorsements undermine the basic liberal democratic notion that all citizens enjoy equal political standing. They tell “nonadherents that they are outsiders, not full members of the political community” while simultaneously telling “adherents that they are insiders, favored members of the political community.”

Then, in Lee v. Weisman (1992) a majority of the Court embraced a third reason why schools should not pressure students into religious exercise: because school-sponsored religious activity is inherently coercive. In Lee, a public middle school invited a rabbi to open and close the school’s graduate ceremony with prayers. This melding of government and faith, according to Justice Anthony Kennedy’s majority opinion, was not allowed — at least in the context of a school.

“The undeniable fact,” Justice Kennedy added, “is that the school district’s supervision and control of a high school graduation ceremony places public pressure, as well as peer pressure, on attending students to stand as a group or, at least, maintain respectful silence during the Invocation and Benediction.” Such pressure, “though subtle and indirect, can be as real as any overt compulsion,” as it leaves a young nonadherent with “a reasonable perception that she is being forced by the State to pray in a manner her conscience will not allow.”

Coach Kennedy’s very public prayer violates any of these constitutional standards. It was an inherently divisive act, which rallied members of the public — and members of Congress — who share Kennedy’s faith into a disruptive conflict with the school itself. It communicated to non-Christian community members and students that they were less a part of the Bremerton community than people who share Kennedy’s faith. And it coerced football players who may not share Kennedy’s religious beliefs into joining his prayers, out of fear that they may anger a school official who wields considerable authority over them.

In the face of these arguments, the coach’s legal team attempts to flip this case on its head, presenting it not as a dispute about whether a school official violated the rights of nonbelievers, but as a case about whether the school violated Kennedy’s free speech rights and his right to practice his faith.

This claim turns on whether Kennedy was acting as a private citizen when he performed a religious ceremony on the 50-yard line, in full view of players and spectators, or whether he was acting as a representative of the school district when he did so.

Public employees retain broad free speech rights when they are not performing their official duties, and a public school teacher or coach should also be allowed to engage in ordinary acts of religious devotion while on the job — such as bowing their head before lunch or quietly asking for God’s blessing before a game — so long as those acts do not suggest that the school district is itself expressing a religious viewpoint.

But the Supreme Court has also long recognized that “when a citizen enters government service, the citizen by necessity must accept certain limitations on his or her freedom.” As the Court held in Garcetti v. Ceballos (2006), “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”

There’s no reasonable question that Kennedy was engaged in his official duties when he knelt before his players and the gathered spectators in a public display of prayer. For one thing, as the school district emphasizes in its brief, Kennedy was only allowed on the football field in the first place because he was a school employee performing official duties. And as a federal appeals court held, Kennedy was selected by the school district specifically to “teach on the field, in the locker room, and at the stadium.”

Thus, when Kennedy walked out to the 50-yard line to performatively pray, “he was clothed with the mantle of one who imparts knowledge and wisdom,” and he was clothed in this mantle specifically because of his employment by the school district. The whole point of Coach Kennedy’s prayer was to wrap himself in the moral authority given to him by the school district, and to use this authority to convey a religious message.

Kennedy could win anyway

Given that existing law so clearly favors the school district in the Kennedy case, the Supreme Court’s decision to hear this case at all suggests that a majority of the justices are eager to change the law to make it more favorable to government-sanctioned religious activity.

For one thing, when the case reached the Supreme Court in 2019, a total of four justices signed on to Alito’s opinion claiming that a lower court that ruled against Kennedy demonstrated an “understanding of the free speech rights of public school teachers [that] is troubling and may justify review in the future.”

Alito appeared unconcerned that a school official might wield his authority to pressure students into religious exercise. Instead, he fretted that coaches should not be told that their “duty to serve as a good role model requires the coach to refrain from any manifestation of religious faith.”

Less than two years after Alito wrote these words, Justice Ruth Bader Ginsburg died, and she was replaced by conservative Justice Amy Coney Barrett. Almost immediately after Barrett’s confirmation gave Republicans a supermajority on the Supreme Court, the Court’s new majority started handing down transformative new religion decisions granting broad new rights to the religious right.

Thus, while the weight of established law should crush Kennedy’s case, the biggest open question in Kennedy is most likely to be just how much leeway the Court will give public school teachers and coaches to preach their religious beliefs to their students.

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