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.