From L to R: Andrew Hammond, Harry T. Ice Faculty Fellow and professor at Indiana University Maurer School of Law; Abigail R. Moncrieff, associate professor and co-director of the Center for Health Law and Policy at Cleveland State University College of Law; and Sam Bagenstos, the Frank G. Millard Professor of Law and the Arlene Susan Kohn Professor of Social Policy at the University of Michigan, engaged in a robust discussion about what the pandemic-era benefits expansion and their rapid rollback say about the fragmented U.S. approach to public policy.
Dec. 12, 2025 ‒ The expansion and reversal of federal benefits related to the COVID-19 pandemic in the U.S show how vulnerable U.S. public policies are to hidden power dynamics. National health law and policy expert Sam Bagenstos made this point during the Houston Law Reviews’ 2025 Frankel Lecture, “COVID and the Great Retrenchment,” at the University of Houston Law Center held recently.
UHLC Professor Emily Berman, who moderated the event, highlighted the topic’s relevance and timeliness in her introduction. “We are in the midst of a government shutdown, and the sticking point is an argument over what role the government should play in making healthcare broadly accessible,” she said. “The shutdown is emblematic of a long-running debate about the appropriate size and shape of the social safety net and, ultimately, what kind of country we want to be.”
During the pandemic, Congress instituted several key measures including expanded Child Tax Credit for parents, increased Earned Income Tax Credits, stimulus payments, extended unemployment insurance, and broadened access to health care.
Bagenstos, former general counsel for the U.S. Department of Health and Human Services who worked on policy issues during the pandemic, noted that these measures had real-world impact and briefly moved the U.S. closer to universal coverage: child poverty dropped by 46% in one year, three rounds of stimulus payments helped lift 11.7 million Americans out of poverty, and the number of American’s without health insurance plummeted to a historic low of 7.7%.
But the permanent change that many predicted never materialized. By 2022, many of the gains had been reversed. The immediate pullback from the COVID-19 expansion set the stage for an even more significant retrenchment during the second Trump administration.
“Almost as quickly as the expansion began, the federal government pulled back,” Bagenstos said. “Where healthcare had been looking like a right, it’s now heading in a very different direction.”
He attributed the rollback to resistance from employers and business groups among other factors.
“Employers and the large groups that represent employers… decided that this was a threat to their ability to run the workplace,” said Bagenstos, pointing out that better benefits enabled workers to leave low-wage and unsatisfactory jobs for better pay and conditions. “The shift in bargaining power mattered to [the employers/businesses and their lobbyists] and so they fought hard against the expansions.”
Beyond economic pressure, Bagenstos said Democrats failed to frame the new benefits as a step toward a social right, allowing opponents to recast them as temporary handouts. “The absence of an effort to frame those expansions… is one of the negative lessons that people like me who advocate broader expansions will take from the COVID era experience,” he said.
In the end, Bagenstos urged policymakers to think beyond simply offering benefits, but instead design programs that last longer. “If the choice, because of budgeting constraints, is lots of benefits on a short-term basis, or a smaller number on a long-term basis, maybe focus on the smaller number,” he said, adding that empowering beneficiaries was equally important.
“Having a lot of voters is not enough to exercise power in our separation of powers system,” he said. Instead, reforms must “create structures under which beneficiaries and workers in particular can exercise their power.”
After Bagenstos’s keynote, the audience heard from respondents Abigail R. Moncrieff, associate professor of law and political science and co-director of the Center for Health Law and Policy at Cleveland State University College of Law, and Andrew Hammond, professor of law and Harry T. Ice Faculty Fellow at Indiana University Maurer School of Law.
Political Theory and Pandemic Policy
In her response, Moncrieff shifted to a deeper theoretical argument, not grounded in politics or policy, but in political theory. Drawing on the writings of John Stuart and Harriet Taylor Mill, she reinterpreted their well-known “harm principle” as what she called an “uncertainty principle.”
“Governments should intervene only when the net harms of specific conduct are observable to outsiders,” she said.
Applying that framework to pandemic policy, Moncrieff argued that COVID-19 forced the government into an impossible situation. “The government is going to be trying to regulate something that it can’t really regulate well under utilitarian theory,” she said. “It’s going to be producing certain costs through universal basic income and healthcare benefits but producing uncertain benefits.” She concluded that this imbalance helps explain why pandemic-era reforms ultimately triggered a backlash against welfare states.
Federalism and Implementation Changes
Professor Hammond examined how the fragmented nature of American federalism shaped the uneven delivery of pandemic-era relief. “COVID relief reached American households through a welfare state that [was] famously fragmented, burdensome, and exclusionary,” he said.
Pointing to states like Tennessee and Florida, Hammond noted that poor implementation left millions without aid. “Universal social policy in the United States is going to require 50 states, five territories, hundreds of federally recognized tribes, and local governments to row together,” he said. “They’re not going to all row in the same direction, and they might not arrive at the [same] destination.”
He said the early COVID relief under President Trump was meant mainly to stabilize the economy, while the later programs under President Biden were broader but limited by Congress.
“The expansions were extraordinary in scale,” he said, “but they were conventional in aim—they were really much more focused on propping up consumer confidence and markets, as opposed to building a universal welfare state.”
He concluded that expansion and retrenchment are recurring features of welfare and reminded listeners that “the work of sustaining social provision in the years to come is always going to be contested and incomplete.”
The lecture and subsequent discussion reinforced the notion that pandemic-era expansions, and their rapid rollback, reflect the challenges of sustaining social policy in a fragmented system. Speakers agreed that lasting reform requires not just good ideas, but attention to power, politics, and practical implementation.
The 30th Annual Frankel Lecture was hosted by the Houston Law Review and sponsored by The Frankel Foundation.
“We're very proud of all our students, but in this case, specifically those in our Law Review,” said Law Center Dean Leonard M. Baynes. “They have done an amazing job of stewarding great conversations on difficult issues over time.”
The event recording is available here: 2025 Frankel Lecture.
Sam Bagenstos, who served as the general counsel for the U.S. Department of Health and Human Services and worked on policy issues during the pandemic, was the keynote speaker at the 30th Annual Frankel Lecture hosted by the Houston Law Review and sponsored by The Frankel Foundation at the University of Houston Law Center.
