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Pandemic Federalism

Pandemic Federalism
President Donald Trump after announcing a national emergency to further combat the coronavirus outbreak at a White House news conference, March 13, 2020. (Shealah Craighead/Reuters)

Large parts of the nation’s response can be undertaken only by the states.

As the nation enters its second month of the coronavirus pandemic, criticism of Trump’s lackluster response has reached a crescendo. In late February, House speaker Nancy Pelosi declared that the White House’s response was “opaque and often chaotic” and accused the administration of “playing politics” while “lives were at stake.” After Trump’s widely panned address to the nation last week, in which the president misdescribed his own policies, the White House and congressional leadership are now seeking to correct course with a $1 trillion stimulus bill.

But under our federal system, Washington, D.C., has only limited powers to respond to a pandemic. The Constitution grants the national government a limited set of enumerated powers. Stopping the spread of disease is not among them. Instead, Congress must resort for a cure to its powers to “regulate Commerce with foreign Nations, and among the several states” and to tax and spend for “the common Defense and general Welfare.” Nor does the president possess any explicit power to protect health and safety. He instead must invoke his power to “take Care that the Laws be faithfully executed” and to wield “the executive power” of the United States.

Under these powers, the federal government can play only a limited role in fighting the pandemic. It can bar those who might have the coronavirus from entering the United States or traveling across interstate borders. It can provide critical supplies, such as medical equipment, intensive-care units, and drugs. It can transfer money to states and cities or private entities, such as hospitals, to help pay for the costs. It can help disseminate information on the disease, fund research on a vaccine and cure, and coordinate the efforts of public and private institutions with guidance for best practices. While Washington, D.C., controls the national borders and regulates interstate traffic, such as the airlines and highways, that power can do little now that the coronavirus has reached every state.

Instead, under our constitutional system, the primary authority to fight the pandemic rests in the hands of our state governors, such as Gavin Newsom here in California and Andrew Cuomo in New York. States possess the “police power,” which gives them the authority to regulate virtually everything within their territory. As the Supreme Court has long recognized, the most compelling use of state power is to protect public health and safety. Under their police power, only the states can impose quarantines throughout an entire population, close institutions and businesses, and limit movement and travel. Only the states can impose the draconian shelter-in-place order that has brought the Bay Area’s economic and social activity to a complete halt.

Some might incorrectly analogize the pandemic to a natural disaster, such as Hurricane Katrina in 2005 or Hurricane Sandy in 2012, when presidents have sent in military troops to assist in mitigation and relief. But an epidemic is a different kind of challenge than a natural disaster. A hurricane or earthquake is fixed in time and space. Under federal laws, the president can flood the zone with personnel and resources, even troops, at the request of a state governor. But the government can no longer limit the pandemic to a fixed geographic location where a surge of federal resources can end the crisis. No federal agency has enough manpower to enforce a quarantine within a large state such as California or New York, not to mention the nation as a whole. The quickly spreading nature of the disease requires the full powers that only a state government, with all of its personnel and resources, can bring to bear on an entire population. The New York City Police Department, for example, has more sworn officers than the FBI’s entire workforce.

Our Constitution’s division of the authority may lead to a slow initial response, as Washington and the states jostle for authority or wait for the other to act. But that is by design. The Founders recognized that the states would exercise primary authority over most aspects of daily life, while the federal government would protect national security, conduct foreign relations, and handle truly national problems. The states have better information, can shape policies to local conditions, and can experiment on best practices. Some states may initially suffer while others succeed. But state diversity also introduces a resiliency in our system that makes it less likely that the nation will suffer from a failure by any single leader, such as the president.

Ironically, the pandemic therefore places Trump’s political future in the hands of his most dire rivals: Newsom, Cuomo, and the governors of other populous blue states. The president’s reelection this November depends on the nation’s success in responding to the pandemic. The very purpose of the presidency is to act quickly and decisively in the face of crisis. As Alexander Hamilton wrote in Federalist 70, “energy in the Executive is a leading character in the definition of good government.” A successful executive, he observed, would display “decision, activity, secrecy, and dispatch.” Our greatest presidents, such as George Washington, Abraham Lincoln, and Franklin D. Roosevelt, pressed their constitutional power to the limits to confront crisis, emergencies, and war when others could not or would not act.

But in this case, Trump tarried while the pandemic began its deadly spread. The real saviors of the nation now will be different executives, those of the states. To the extent that their drastic responses force the pandemic to recede, they will end up saving Trump from his initial lack of executive leadership. It will be their success, or lack thereof, that will determine whether the country feels secure enough to reelect Trump or replace him with new leadership.

John Yoo is the Emanuel S. Heller Professor of Law at the University of California at Berkeley, a visiting scholar at the American Enterprise Institute, and a visiting fellow at the Hoover Institution at Stanford University.

© 2020 National Review

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