Governors Practice Political Distancing In Shifting Blame To Federal Government

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Below is my column in The Hill newspaper on the continued calls for federal takeovers and nationalization of industries. The past commentary often reflects a fundamental misunderstanding of both our constitutional and statutory laws. What is also striking is that a significant number of governors appeared on Sunday shows but not one was asked about the failure of his or her state to prepare for such a public health emergency. Governors are referring to this crisis as if it were a previously unknown meteor from space. In fact, we have been discussing the utter lack of preparation for a pandemic for over two decades and states like New York were warned that they would be dangerously short such items as ventilators. I was part of that debate back in 2002 and 2003 when the model law for pandemic was being adopted by states — reaffirming the primary responsibility of the states to address pandemics.

Here is the column:

New York Governor Andrew Cuomo called on the federal government to take control of the medical supply market. Illinois Governor J.B. Pritzker demanded that President Trump take charge and said “precious months” were wasted waiting for federal action. Some critics are even more direct in demanding a federal takeover, including a national quarantine.

It is the legal version of panic shopping. Many seem to long for federal takeovers, if not martial law. Yet like all panic shopping, they are buying into far more than they need while not doing as much as they could with what they have. For decades, governors tried to retain principal authority over public emergencies, but they did very little with those powers. While many are doing impressive work now, some governors seem as eager to contain the blame as the coronavirus. Call it political distancing.

Even if Trump nationalized the crisis by deploying troops, imposing price controls, and forcing production of ventilators, the Constitution has left most police authority and public health safety to the states in our system of federalism. The Framers believed liberties and powers were safest when held closest to citizens in local and state governments. Elected officials at the local and state levels are more readily held accountable than unknown Washington bureaucrats. Of course, with authority comes responsibility, and the latter notion is not always as welcomed as the former.

Despite all the hyperbole of the last few days, the federal authority of the president to act is much more limited than many appear to believe. Trump cannot, and should not, simply take over the crisis. While he may want to “open for business” by Easter, he has no clear authority to lift state orders for citizens to stay at home. His greatest authority is supplying assistance in the production and delivery of necessary resources such as ventilators. While he can put conditions on some assistance, he cannot commandeer the authority of governors in their responses to the pandemic.

Federal disaster relief and control is a relatively recent phenomenon. The response to the Galveston hurricane in 1900, with some 12,000 dead, was almost entirely by Texas. After the San Francisco earthquake in 1906, with around 3,000 dead, federal troops helped maintain order and establish medical units, but the recovery was primarily an effort by California. The Federal Emergency Management Agency was not created until 1979. Its mandate was to coordinate national responses to assist state and local governments in disasters. It was never meant to shift control.

I was a critic of the Model State Emergency Health Powers Act adopted by states in 2002 as the way to respond to public emergencies from terrorist attacks to pandemics. As a civil libertarian, I was alarmed by the sweeping language giving governors virtually unchecked authority. I objected that they already had significant authority and these laws created “absolute authority” left entirely to the discretion of individual governors.

My objection was that it seemed premised on the idea that the “best cure for terrorism may be a small dose of tyranny.” An author of the model had responded by saying, “You do have to face hard tradeoffs between civil liberties and property rights of individuals against the collective rights of society. We do need to give up a little bit.” The immediate tradeoff is that the authority held by governors is only as effective as each governor. This means that, as I noted in 2003, a state may be “cursed with some dimwit” who fails to take necessary precautions or sufficient measures.

States remain in the best position to address emergencies, and such laws gave governors ample authority to act. But they did relatively little in the next two decades to prepare for public health emergencies. A New York Health Department task force report in 2015 has resurfaced, warning that the state faces a shortage of 15,000 ventilators in a pandemic. While the report did not call for stockpiling supplies, states clearly have not done enough, individually or collectively, to set aside such resources.

Media coverage has referred to the National Emergency Act along with other impressive statutory titles to suggest that the president can order national quarantines and take over management of this crisis. Actually, these laws follow the same model laid out by the Constitution in leaving the responses to state control. The often cited Stafford Act, for instance, merely heightens the authority of federal technical, financial, logistical, and other kinds of assistance to state and local governments.

The Defense Production Act is meant to advance priorities instead of establishing a nationalized industrial base. If companies have agreed to expand production or retool for new products, then there is no need to impose mandates under this law since that process is unlikely to go any faster. Nationalization can slow rather than speed relief in emergencies with replacing existing systems. With indemnifications and large orders, business executives have incentive to expand production. After General Motors failed to meet the expectations on price and production, Trump invoked the act, and that is precisely how it should be handled.

There is one additional misconception on this that is more historical than legal. Many have referred to the need for Trump to use the same authority that Franklin Roosevelt wielded during World War Two. But the situation in this case is different. Back then, there was considerable control exercised over industry, though most companies had voluntarily agreed to retool to make the necessary equipment for obvious business reasons.

It was primarily through the control of raw materials and prices that the federal government could exercise chokepoint control. It could expand agricultural production, not by taking over farms, but by setting the crop prices high to encourage expansion. Even with massive national control, it took about 18 months for a coherent system of production to emerge, and that effort was largely based on price and resource controls.

Our leaders need to play to their strengths to fight the current war. The coronavirus battle must be won in months and not years. The only way to do this is to use existing structures and markets. Vastly different situations are presented in each state, some with relatively small numbers of cases while others like New York face a full fledged pandemic. Indeed, this is precisely where federalism is a strength rather than a weakness.

Unlike highly centralized European countries, our leaders have the ability to make far more tailored responses on a state by state basis. Each state can tailor its response to its individual threats or needs, and look to the federal government for badly needed resources. When the coronavirus shifts, the federal government will have these fully functioning systems with people who are intimately familiar with the local terrain. Simply put, our balanced form of federalism was made for this pandemic.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.

147 thoughts on “Governors Practice Political Distancing In Shifting Blame To Federal Government”

  1. It would be interesting to ask each state governor what they see is their power during this pandemic. We have had this discussion over states’ rights before, even had a war over it. What was it? About 150 years ago? Our governors need to step up and grow a pair. Our state legislators need to listen to the ones they represent. And we, the people, need to speak out.

  2. Trump can and will ask the states to do so publicly. Those states that choose NOT to do so, their governors will suffer electoral consequences if their decisions are wrong. That is federalism, and properly so.

  3. This is how you know when your governing system has broken down, the blame game over revenue and necessary expenditures ensues!

    Article 1 Section 2 Clause 3; Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.

    So does anyone understand what no taxation without representation means? It means that each state only pays a proportion of federal revenue which is per capita equal for expenditures that they approve through their per capita proportional representation and suffrage.

    Only the States pay federal taxes and those taxes must be per capita equal! You geniuses actually believe that individual federal taxes aren’t coming from the State’s where those taxes are collected from, and in this way you can get around this requirement of per capita equality and collect taxes disproportionately.

    The Federal Government has no budget, like you would in a business, all expenditures must be approved before the revenue to fund those expenditures is collected through per capita proportional direct taxes on the States that in fact approved the expenditures.

    The treasury is not a repository of the country’s wealth, it is a float tank to manage the flow of monies from the States to approved expenditures.

    Everyone in the country isn’t stupid, some of us know the difference between urine and rain!

    By the way, Article 1 Section 2 Clause 3 is unalterable by any means including constitutional amendment. If you don’t believe this then read Federalist #52 and let Madison explain how they rendered this part of the Constitution unalterable by making it dependent on each State’s own Constitution! The 14th and 16th amendments are totally invalid due to this and must be disregarded and removed immediately!

    1. @federalistpapersrevisited — You may want to revisit what the word “direct” meant to the founding fathers and assess its applicability to the current taxing scheme before you decide to strike down all federal activities.

      Wait, did you say you revisited the Federalist Papers? Really????

  4. A federal takeover of medical supply industries? Really? And how did the feds do with what they did have control over? The CDC designed an assay tha could only test 12 samples a day, and then they rolled it out during a pandemic when it was unreliable. What kind of QC testing releases a flawed assay when that much is riding on it?

    Weeks later, they still didn’t have their act together. I know someone who had Covid-19. His test was sent in and it was weeks before he had his answer. By then he was improving.

    It was private industry that saved the day regarding testing. Multiple companies offered tests that acould run tens of thousands of samples and they worked. Private industry has offered plasma treatments from recovered patients, a novel vaccine approach that rocketed past all landspeed records of prior vaccine development, and there are multiple therapeutic drugs being tested in the pipeline to treat covid-19.

    And what do the politicians want to do? Nationalize it when it was the government alphabet soup that did a poor job? That kind of logic may get you far in politics, but this is the real world.

    Trump called on the private industry to pump out as many N95 masks as possible. They were already stepping up to the plate without needing to be asked. FEMA is distributing 9.4 million of those masks this week.

    The CBP also has a stockpile of 1.5 million N95 masks, but they are expired. They are trying to determine if they may be given out, as they are expired, but those have been claimed by the TSA. It’s going to be a few more weeks, at least, before the rest of America has access to N95 masks on the shelf. And when they do, they will have a run on them that will make the TP wars look tame. (Stores, plan accordingly.)

    Where I have not been impressed with the private sector is how grocery stores are still cramming people inside to get basic necessities. They should have transitioned to online ordering only, at least the larger chains that already have a delivery service or pickup. They should not allow people to form long lines, and then all go shopping together during a pandemic. It puts everyone, including their own employees, at personal risk. And once the grocery store employees start getting sick, others will quit, and grocery stores will have to close.

    The feds and the state can help distribute supplies. But nationalize industries, so that unaccountable bureaucrats get to bog down the medical supply chain? I don’t think so.

    1. David, I think at this point, you could sign DBB, and everyone would know, or even a simple, like Prince, 🤠, sign with the 🤠 emoji

  5. Surrounded by mere lawyers, who don’t know anything except the law and don’t want to learn anything except the law.

    Ah me…

  6. Here in the Pacific Northwest we expect
    https://www.fema.gov/
    to be the lead agency when the offshore Cascadia fault causes the next big earthquake. Last one was in 1700.

    However, doesn’t appear to have much of a visible role in the current COVID-19 pandemic.

    — David B Benson

    1. Bob, show me verification on that from a recognizable source. I don’t remember Obama ever taking time in press conferences to bring us up to date on all the people annoying him at the moment.

      1. Bob, show me verification on that from a recognizable source.

        Counting the first-person singulars in his speeches and the self-centered formulations got to be a parlor game during those eight years. No clue how you managed to miss every single commentary on this point.

        1. This is a turd

          That is so not true and beneath your usual standard of BS. And said in defense of a malignant narcissist, why are you so lost? At your age, live and let live.

        2. Absurd, I imagine this is one of those things where we’re supposed to think Obama had an alternate personality that half the country never saw.

          1. The whole country saw his personality. His supporters did not care because they have bad values.

            1. Beyond the ridiculousness of Karen’s position – no president of either party has been as obviously damaged and dysfunctional as her hero – is this damning accusation against most Americans – they voted twice for Obama – by a person always taking personal offense by critical comments posted here by me and others. I’ve accused people still supporting Trump as blind and lacking BS meters, but I’ve never said they lack values. That would be ridiculous and the opposite of my beliefs, since I know people of opposite political beliefs from me who I otherwise respect. Karen owes an apology or explanation for her presumed superior morality, which is not obvious to anyone but herself.

              1. – no president of either party has been as obviously damaged and dysfunctional as her hero –

                One consistent element in your commentary would be manifestations of the Dunning-Kruger effect – both in regard to your understanding of the current incumbent and in your understanding of his predecessors.

                If you want an example of the dysfunctional, read Gary Aldrich’s account of attempting to complete what had been hum drum tasks during the 1st Bush Administration: legally required background checks on discretionary appointees. Or read the accounts of men who admired Richard Nixon about the low comedy of working for him. Or about the mundane…exploits… of Lyndon Johnson and John Kennedy (who was in turn a patient of Max Jacobson, aka “Dr. Feelgood”. Or read what Arthur Schelsinger fancies is a defense of Franklin Roosevelt’s administrative technique (republished in Francis Rourke’s Bureaucratic Power in National Politics. And then there’s the final 16 months of the Wilson Administration.

                1. absurd always tossing these gems out there, i love it when i have to look something up…
                  https://en.wikipedia.org/wiki/Max_Jacobson

                  roids and amphetamines, hmmm, now maybe one can understand why JFK was so horny

                  ” Kennedy, however, was untroubled by FDA reports on the contents of Jacobson’s injections, and proclaimed: “I don’t care if it’s horse piss. It works.”[10]”

                  roids and amphetamines, kind of sounds like horse piss alright

                2. Addison’t Disease (which was JFK’s diagnosis along with lower back pain from when a destroyer cut his patrol boat in half) was a bear to treat. You wound up ruinning the patient’s endocrine system by hand, which is what Jacobson did.

              2. Karen owes an apology or explanation for her presumed superior morality, which is not obvious to anyone but herself.

                She doesn’t owe you or anyone else jack. It’s your presumption that she is morally superior, not hers. It makes you look extremely weak. Deal with it.

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