In extraordinary times — like the one we’re experiencing now — states and the federal government can activate emergency powers to expand their abilities to act swiftly and protect human life and health. I think let me put it this way. “Today, we find ourselves in the opposite situation: the federal government has done too little,” the authors write. Ventilators are in short supply, hospitals across the states are in desperate need of masks, supplies, tests, and beds, and governors across the country have been hitting the airwaves pleading for assistance from the federal government. [7] Nurith Aizenmen, Experts Say the U.S. The power of quarantine rests primarily with state and local authorities, with substantial variation among jurisdictions.5 Under the Public Health Service Act, the Surgeon General, with the permission of the Secretary of the Department of Health and Human Services, has authority to prevent the spread of disease between states and from other countries. [1]  Although it may appear from the Coronavirus Task Force press conferences that the President ordered the current lockdowns, it is the state governments who possess the authority to impose these types of restrictions, although they often take their cues from the federal government. Less than two months later, the U.S. cases have surpassed 1 million, with more than 66,000 deaths. Trump has ordered General Motors to manufacture ventilators and the $2 trillion stimulus package includes $1 billion for DPA projects. The states have what’s called broad police power to deal with the health, the welfare and the morals of the people within each state. J. Craig Williams: Right. While the Trump administration’s coronavirus response has aggravated the pandemic with uneven assistance to states, funding and supply delays, inconsistent messaging, and insufficient testing, the federal government is limited in its ability to mandate a centralized course of action. [13] Nonetheless, responsibility for making decisions about the pandemic rests with the states, not the federal government, so look to your state governor for an update on your state’s individual restrictive stay-at-home measures during this pandemic. Identify all potential conflicts of interest that might be relevant to your comment. COVID-19 brings federalism into focus.  LO, Wiley States have the police power to regulate almost everything in its state, including the ability to issue statewide lockdowns, force closures of institutions and businesses, limit public gatherings and prevent travel. Robert L. Tsai: Well, I think the most important thing to think about in terms of our constitutional structure in terms of how we regulate matters concerning health is that traditionally the power has rested with the states. The views expressed by contributors are their own and not the view of The Hill .  WM, Annas Some of it has to do with probably his skill set and some of this probably has to do with his philosophy of government and his view of the economy, which initially was to do as little as possible to harm the stock market and big business and so forth, but that strategy didn’t work. Historically, state flexibility in health policymaking has meant that certain communities, such as poor African American families in the deep South, have fewer resources over the long term and suffer entrenched health disparities. They just didn't see a Donald TrumpDonald John TrumpBiden has spoken with some GOP senators, chief of staff says Trump told advisers he could announce 2024 bid shortly after certification of Biden win: report Ivy League cancels winter sports amid US COVID-19 pandemic surge MORE. First, federal standards for local stay-at-home orders could be derived from data-driven thresholds for case numbers, transmission rates (as determined by the CDC), and the status of bordering states, which together would trigger states to enact protections supported by federal funding. The federal government has the power to provide medical supplies, transfer money to state governments, bar individuals with coronavirus from entering the United States, and fund research for a vaccine. Third, epidemic data collection should be standardized. This disjointed response is no accident. I mean, we have had circumstances where a pastor in Florida has now been arrested for holding a church service on a Sunday in violation of the governor’s orders. It looks like we have got the governors kind of doing different things. It is less politically risky to impose measures in one state than on an entire nation. Should you join in? The Hill 1625 K Street, NW Suite 900 Washington DC 20006 | 202-628-8500 tel | 202-628-8503 fax. Centers for Disease Control and Prevention. When Confronting the Coronavirus, Federalism Is Part of the Problem That some cities and states have stepped up to fill the gap left by Trump’s catastrophic failure is a matter of luck, not design. But my hope is that religious institutions don’t push this, because my view is that this is really a very sensible public health intervention, especially given the inability, due to the fact that with COVID, we know that asymptomatic individuals can transmit and that fact makes it much harder to say, oh, well, here is this least restrictive alternative you should have done looking at who is sick or who is coughing or the like since we really don’t know.  AR, Huberfeld Health department governance: public health professionals gateway. Not all submitted comments are published. Sarah H. Gordon, PhD, MS; Nicole Huberfeld, JD; et al. “A federal takeover of all public health orders would be out of step with our federalist structure,” the authors state, but there remain three good options: The White House could also make further use of the Defense Production Act (DPA) to direct private companies to produce badly needed ventilators and personal protective equipment for health-care workers, the authors write. You can learn more at, And to do that we have got two great guests for you today. The founders got it right on federalism. This is one of the gaps. Cited benefits of federalism include the flexibility to customize responses to the unique characteristics of a local population, maintain state budgets, and test new policies.2,3 Some states have responded to the lack of national leadership by forging their own paths by independently acquiring essential equipment or collaborating with neighboring states to reopen their economies. That’s bluejlegal.com. The Department of Health and Human Services, Federal Emergency Management Agency, and the Centers for Disease Control and Prevention (CDC) have limited authority to direct local officials to take united action.1,4. Florida Gov. This website uses cookies as well as similar tools and technologies to understand visitors' experiences. I mean something we haven’t talked about is that all public health orders are judged under the standing of the due process clause which requires an analysis that looks to, is there a compelling state interest, is this the least restrictive alternative, and is there a procedural due process. So one strategy to do this would be to build, if we wanted to have more federal control over this sort of stuff would be to build it into the Spending Clause. But because they have been enacted in a bottom-up way, in response to demand from citizens, they have a legitimacy they’d lack if the executive branch, by fiat, had tried to convert, overnight, into an East Asian or European-style authoritarian body. [9] Reid Wilson, Could Trump Declare a National Coronavirus Shutdown? If you have no conflicts of interest, check "No potential conflicts of interest" in the box below. By Federalism, or the division of power between a national government and states, is a fundamental feature of US public health authority.1 In this pandemic, US public health federalism assures that the coronavirus response depends on zip code. Learn how your comment data is processed. There are two overriding failures of the Trump administration. Lawyer 2 Lawyer is a legal affairs podcast covering contemporary and relevant issues in the news with a legal perspective. . The rapid spread of novel coronavirus disease 2019 (COVID-19) across the United States has been met with a decentralized and piecemeal response led primarily by governors, mayors, and local health departments. © 2020 American Medical Association. And here one of the offshoots of that kind of analysis is that maybe the federal government has less title than you might want it to, even congressional, once that we the commerce laws have been accepted. Moreover, the economic outcome in places such as the Mississippi delta will be extensive, where the most common job is retail cashier, Medicaid eligibility thresholds are extremely low, and health care facilities were already struggling.6. “Yet the federal response has been alarmingly slow to develop, fostering confusion about the nature of the virus and necessary steps to address it.”, The authors warn this “lack of interjurisdictional coordination has and will cost lives.”. So, what are the respective roles of the federal government and the state governments in a time of crisis? Robert is much more of an expert on the war powers of the Constitution than I am, but let me just put it this way. That’s a law that has been sort of rarely invoked. When it comes to leadership, we certainly had different models of leadership, right? Needs a National Shutdown ASAP—But Differ on What Comes Next, National Public Radio https://www.npr.org/sections/health-shots/2020/03/27/822146372/experts-say-the-u-s-needs-a-national-shutdown-asap-but-differ-on-what-comes-next (Mar. These measures are extraordinary, and they are meant for extraordinary times. The picture on the state level is mixed too. The administration's failure on testing is stunning. Please allow up to 2 business days for review, approval, and posting. Again, here there is a bit of a rub in that the justices basically in NFIB v. Sebelius, a number of them were worried about this coercion doctrine and the idea when federal government tried to expand Medicaid, justices including Justice Kagan, my own boss, said, well, actually, you know what, that might violate and coerce the states in a way that’s inappropriate and 00:21:11. Robert L. Tsai: I would encourage people to pay attention to two things.

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