Federalism Not Absolutism Is The Cure For A Pandemic

donald_trump_president-elect_portrait_croppedBelow is my column in the Washington Post on President Donald Trump’s assertions of “absolute” and “total” power over the states.  While he appeared to dial back on the rhetoric in the last two days, President Trump again yesterday said that he could have issued orders shutting down every state but decided to let the governors do it.  There remains a fundamental misconception of the President’s authority in our system of federalism.

Here is the column:

President Trump caused a stir Monday morning by declaring not only that he would decide when to open the country – resuming something like normal economic activity after coronavirus-related lockdowns – but that he had the ultimate authority to do so:

Trump doubled down in Monday evening’s White House coronavirus task force briefing, saying “the federal government has absolute power” to direct Americans back to their normal routines and “when somebody is president of the United States, the authority is total.” It was a startling shift after the president correctly maintained for weeks that state governments, not the federal government, have primary authority to prepare for and deal with a pandemic. After leaving it to governors to implement various stay-at-home orders, Trump is now asserting the unilateral authority to lift such state orders.

He’s wrong. Our Constitution was written precisely to the deny that particular claim.

It was also designed to limit federal authority, generally. Under our federalist system, the default authority remains with the states. As James Madison explained in the Federalist No. 45, “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.” In other words, faced with a conflict with the states, the federal government must rely on express, not presumed, authority, particularly in areas like public health and police powers. In such conflicts, courts return home to the 10th Amendment, which says that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” In other words, when federal push comes to state shove, the states are supposed to win.

If we reach a point in this crisis where a national vaccination program is on the table, an important authority is the Supreme Court’s decision in Jacobson v. Massachusetts (1905), which upheld a state’s right to enforce such a program. The court held: “The safety and the health of the people of Massachusetts are, in the first instance, for that Commonwealth to guard and protect. They are matters that do not ordinarily concern the National Government. So far as they can be reached by any government, they depend, primarily, upon such action as the State in its wisdom may take, and we do not perceive that this legislation has invaded any right secured by the Federal Constitution.”

The Centers for Disease Control and Prevention has limited authority to quarantine individuals but not to impose broad stay-at-home orders. There is one ambiguous provision in the federal code titled “Measures in the event of inadequate local control,” which reserves the right of the CDC director to “take such measures to prevent such spread of the diseases as he/she deems reasonably necessary.” That authority is designed to allow tougher public health protections than a local government has ordered, when necessary to protect public health.

But what Trump suggests is that there is a type of inverse power to order more lax public health measures over state objections. Yet the pandemic rules were designed to ensure more protective health measures, not protect against them. Trump has alluded to a type of pan-economic power to force states to prioritize economics over pandemic concerns. Not only does no such express power exist, it would contradict core principles of our constitutional system.

Federalism is a strength, not a weakness, in a pandemic, allowing highly tailored plans that are primarily administered by state and local officials, for better or worse. A 2015 New York State Department of Health report, for example, shows that New York, which has borne the brunt of the coronavirus pandemic, received this warning, which wasn’t adequately heeded: “If an influenza pandemic on the scale of the 1918 pandemic were to occur, it is possible that New York would face a significant shortage of ventilators.”

The flip side of federalism is that, just as states decide how to prepare and act on a pandemic, they also get to decide when to stop such measures. Each state is allowed to balance the possible costs of a resurgence of cases against the costs of harming its economy by continuing public health measures. It is the ultimate policy decision, and it remains a state decision with likely different priorities in different states. Regardless of the state choice, however, a constitutional order imposed by a governor must be lifted by that governor.

As president, Trump has the bully pulpit to argue that case, and many governors are likely to listen to him. By calling for the nation to reopen, he offers some political cover for governors who can rely on the federal guidance. The federal government can also threaten to extend or withhold forms of financial support or cooperation for states that oppose the federal plan – but that power is limited. The Supreme Court has struck down federal laws that effectively “commandeer” states to carry out federal policies, including supporting the striking down of parts of the Affordable Care Act. As the court wrote in one of the most critical cases, Printz v. United States (1997), “Such commands are fundamentally incompatible with our constitutional system of dual sovereignty.”

The constitutional reality is that the president’s desire to order the opening up of the country falls somewhere between the aspirational and the persuasive. Federalism dictates as a constitutional matter what task force member Anthony Fauci believed is required as a public health matter: The return to normalcy will vary from jurisdiction to jurisdiction rather than be “one-size-fits-all.” The founders, of course, were not seeking to combat contagions when they created our system. They were trying to avert tyranny.

Trump has to convince, not command, governors on what is best for their states.

136 thoughts on “Federalism Not Absolutism Is The Cure For A Pandemic”

  1. Paul, I looked at that epidemic. It wasn’t terribly serious. Nothing in comparison to what we’re having now. To say Obama screwed really bad seems hard to support.

    1. “To say Obama screwed really bad seems hard to support.”

      Now Seth thinks he/she is Michelle Obama.
      When will Seth’s madness end?

  2. Allan & Seth Warner — I remind you that global warming is upon us. The seas will rise ever more quickly. Precipitation won’t be in the acustomed amounts or in the traditional places.

    1. David, why are you reminding me? I am well aware that Climate Change will be a growing challenge in the not-so-distant future. And mass migrations are likely to become destabilizing factors in much of the world.

    2. If you were correct Covid would not exist in much of NYC because according to the theorists of global warming by now NYC should be under water.

  3. “Diaper Man, this country has lost as many jobs in the past 3 weeks than all of the Great Recession.”

    Paint ChipsI know that is a thrill for you because you believe it gets you one step closer to socialism. Like Stalin and Mao you think it worth millions of innocent lives.
    ======

    “That’s a shocking stat. Anyone who thinks the economy can bounce back to where it was is delusional. We’re in for a painful economic slump that could last months or years.”

    Paint Chips, we all recognize the problems our economy has today though a few like you think that is the greatest thing since sliced bread.

    This too shall pass and we will become economically strong again whether it takes a few months, a year or even more. Those that you think will flock to your type of thinking will, when they see your true face, think again and run away.

      1. Paint Chips, you are tossing out movie characters hoping that people are stupid enough to associate those characters with those that believe in the concepts of the DOI, Life, Liberty and Happiness (property). You wish to replace them with state ownership of property, state control of life, and state denial of liberty all leading not to happiness but to misery.

        Paint Chips is miserable but he believes in equality so that everyone else become as miserable as he.

      2. You know Kubrick was most of all making fun of Hermann Kahn the weapons strategist right? To only a lesser extent Jack Ripper who sounded like a Bircher with the flouridation stuff

        https://en.wikipedia.org/wiki/Herman_Kahn

        And fluoridation …. not all it was cracked up to be

        2018 article weighing the pros and cons of it notes that fluoridation of water supply is banned in certain countries now.

        https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6195894/

        so maybe Stanley Kubrick was prophetic and the JBS werent as far off base as they seemed

        You know what’s interesting about Stanley Kubrick? Makes him really seem like a bircher?

        his last movie Eyes Wide Shut

        check it out and it should be obvious what i mean

  4. BREAKING NEWS
    _______________

    March 20, 2020

    “Two months ago, January 20, 2020 – a date which will live in infamy – the United States of America was suddenly and deliberately attacked by the Communist People’s Republic of China.

    “The United States was at peace with that nation and, wittingly or unwittingly, through criminal dereliction and negligence and attempting to obtain the cloak of plausible deniability, the People’s Republic of China released on the world the COVID-19 biological weapon.

    “China has, therefore, undertaken a surprise offensive extending throughout the World. The Commander in Chief of the Army and Navy has directed his entire Cabinet that all measures be taken for the defense of the United States.

    “With confidence in the United States Center For Disease Control and with the unbounding determination of the American people the Untied States will gain the inevitable triumph so help us God.

    “Congress must declare that since the unprovoked and dastardly attack by China on January 20, 2020, a state of war has existed between the United States and China.”

    – President Donald J. Trump

  5. This is what happens when you elect an inept sociopathic moron who cuts funding from health and science to give tax cuts to the rich.

      1. Did he or not, cut funding from the CDC and pandemic organizations? And if you would get your head out of the Trump propaganda infrastructure you might learn something, but I doubt it.

      2. Mespo, Turley’s own column notes the administration was fully aware of the Wuhan laboratory as far back as 2 years ago. And they were concerned the laboratory would leak.

          1. Mespo,

            did you make it to the protest at the Capital? I did not see your name or face in the RTD.

            Trump inherited this SARS-CoV mess from Obama. Some would say Obama was president in 2015 (more like dictator in chief). For all of their chest pounding about love of science and factual data, they do neither.

            Obama ignored almost 2 decades of published scientific research showing SARS-CoV would reappear. They did nothing. Obama did nothing. MERS Coronavirus in 2012 Saudi Arabia & 2015 South Korea should have lit a fire under his ass. It did not. WHO did nothing other than give cover to China.

            What has gotten into the trolls? They are acting really batty, as if infected with a strange strain of virus.

            Menachery, V., Yount, B., Debbink, K. et al. A SARS-like cluster of circulating bat coronaviruses shows potential for human emergence. Nat Med 21, 1508–1513 (2015). https://doi.org/10.1038/nm.3985

            A SARS-like cluster of circulating bat coronaviruses shows potential for human emergence
            https://www.nature.com/articles/nm.3985

            The emergence of severe acute respiratory syndrome coronavirus (SARS-CoV) and Middle East respiratory syndrome (MERS)-CoV underscores the threat of cross-species transmission events leading to outbreaks in humans….The results indicate that group 2b viruses encoding the SHC014 spike in a wild-type backbone can efficiently use multiple orthologs of the SARS receptor human angiotensin converting enzyme II (ACE2), replicate efficiently in primary human airway cells and achieve in vitro titers equivalent to epidemic strains of SARS-CoV. …Our work suggests a potential risk of SARS-CoV re-emergence from viruses currently circulating in bat populations.

            1. 2012: New England Journal of Medicine
              – Barack Obama President

              N Engl J Med 2012; 367:1814-1820
              DOI: 10.1056/NEJMoa1211721

              Isolation of a Novel Coronavirus from a Man with Pneumonia in Saudi Arabia
              https://www.nejm.org/doi/full/10.1056/NEJMoa1211721

              A previously unknown coronavirus was isolated from the sputum of a 60-year-old man who presented with acute pneumonia and subsequent renal failure with a fatal outcome in Saudi Arabia. The virus (called HCoV-EMC) replicated readily in cell culture, producing cytopathic effects of rounding, detachment, and syncytium formation. The virus represents a novel betacoronavirus species. The closest known relatives are bat coronaviruses HKU4 and HKU5. Here, the clinical data, virus isolation, and molecular identification are presented. The clinical picture was remarkably similar to that of the severe acute respiratory syndrome (SARS) outbreak in 2003 and reminds us that animal coronaviruses can cause severe disease in humans.

              1. Another NEJM article published on Coronavirus SARS in 2012 that challenged the WHO

                N Engl J Med 2012; 367:1850-1852
                DOI: 10.1056/NEJMe1212300

                Emerging Human Coronaviruses — Disease Potential and Preparedness
                https://www.nejm.org/doi/full/10.1056/NEJMe1212300

                The global community was apparently not aware of the first case of HCoV-EMC infection until it was reported on ProMED, a website for monitoring emerging diseases, on September 20, 2012, approximately 3 months after the patient died. Luckily, there have been no new reports of cases since September 22, 2012, but local surveillance should continue. With no evidence of human-to-human transmission, the WHO currently recommends no heightened global surveillance for this virus but continued “routine surveillance for early detection and rapid response to all potential public health threats.” However, such cases provide an opportunity to reconsider response strategies.

                1. Estovir,
                  Thank you for posting these. They bring an important level of perspective to a complicated situation!

                  1. It seems like researchers were calling global governments to alarm since 2002 about SARS. Yet none of the news outlets are going back to see when it all started and what the response was back then by those who know more than them: researchers and doctors on the front lines.

                    We are being manipulated by both sides of the political debate…those self-serving b*stards

              2. Estovir, I looked at that link from the New England Journal of Medicine. It’s just a straight, scientific medical story. Nothing in there condemns Obama’s response.

                If you can cite any health disasters that occurred during Obama’s presidency, feel free to post from well-known sources. I’ve been trying to research that and not too much comes up.

                Are you an actual medical doctor? I’m not sure what claims you made. But it seems you frequently present yourself as a healthcare authority. Just to play devil’s advocate, we dont know who you are. Readers should keep that in mind.

                  1. Paul – It slipped my mind yesterday, but did you see the Elephant Seals in San Simeon, CA?

                    If not, next time. You could definitely use your Covid mask bc I will tell you what, those buggers stink.

                    Also, check out the otters in Morro Bay.

                    1. WW33 – I haven’t seen the elephant seals, but I will take your word that they stink. I know regular seals stink. 😉

                      I had a lovely lunch in Morro Bay where my wife and I watched an otter crack open a clam shell on its stomach for its lunch as we were eating. Dexterous little creatures. 🙂

                1. “The 2009 H1N1 Pandemic: A New Flu Virus Emerges”

                  https://www.cdc.gov/flu/pastseasons/0910season.htm

                  “While a monovalent (H1N1)pdm09 vaccine was produced, it was not available in large quantities until late November—after the peak of illness during the second wave had come and gone in the United States. From April 12, 2009 to April 10, 2010, CDC estimated there were 60.8 million cases (range: 43.3-89.3 million), 274,304 hospitalizations (range: 195,086-402,719), and 12,469 deaths (range: 8868-18,306) in the United States due to the (H1N1)pdm09 virus.”

                  1. NEJM:

                    “Pandemic Preparedness and Response — Lessons from the H1N1 Influenza of 2009”
                    Harvey V. Fineberg, M.D., Ph.D.

                    https://www.nejm.org/doi/10.1056/NEJMra1208802

                    From the CDC, above:

                    In a year, there were “12,469 deaths (range: 8868-18,306) in the United States due to the (H1N1)pdm09 virus.”

                    Yesterday, Covid-19 killed over 4,000 people in the U.S.

                2. The question Paint Chips is not who Estovir is. Who cares? The question should be about what you stand for as a cheerleader for the economic destruction of America in order to instill your ideological ideas of socialism that killed more than 100 million outside of war in the last century.

                  Whomever Estovir is, he isn’t a homocidal maniac.

              3. Are you trying to make the case that this virus is COVID-19? If COVID-19 is the same virus, then it wouldn’t have been given a new name, because the scientific community already had a name and the means to identify this pathogen. The “19” in COVID-19 refers to the year it was isolated and identified.

                Are you trying to make the case that this report should have prompted Obama to do something in addition to than the pandemic rapid response team and playbook? The Obama Administration went over the pandemic team and playbook with Trump’s Administration, and they ignored it. Still trying to blame Obama for 3+ years of inaction and lying by Trump. Doesn’t the lack of leadership and refusal to accept responsibility get old, even to you Trumpsters?

                1. whats more interesting is that the virologist who won the nobel prize along with a colleague, for identifying HIV the source of AIDS, Luc Montaigner, says the sars-cov-2 is definitely lab-made and he suspects that the wuhan lab was experimenting with it as a means to find an HIV virus, impying a possible accidental release.

                  https://nationandstate.com/2020/04/17/covid-19-is-a-man-made-virus-hiv-discoverer-says-could-only-have-been-created-in-a-lab/

                  now, will you agree with me Natch, that Luc is not a “discredited conspiracy theorist?”

                  perhaps this is something which is more possible than we suspected!
                  the article in nature magazine saying that the sars-cov-2 was emergent from nature, could be wrong. it is not holy writ. well, hopefully time and peer review will tell!

      3. “Yeah, you get China unleashing a pandemic on the world. Bad Trump. Bad.”

        Says the high and mighty mespo.

        ‘“Pure Baloney”: Zoologist Debunks Trump’s COVID-19 Origin Theory, Explains Animal-Human Transmission’

        APRIL 16, 2020

        https://www.democracynow.org/2020/4/16/peter_daszak_coronavirus

        ‘With the largest one-day death toll in the U.S. yet — 2,400 in just 24 hours — President Trump is trying to deflect attention from his handling of the pandemic by waging a war on public health experts and science, threatening to cut World Health Organization funding and fueling a theory that the coronavirus came from a lab in Wuhan, China. We speak to a zoologist who has been sounding the alarm about a coming pandemic for years. “The idea that this virus escaped from a lab is just pure baloney,” says Peter Daszak, disease ecologist and the president of EcoHealth Alliance, a nonprofit that works globally to identify and study our vulnerabilities to emerging infectious disease. “These pandemic viruses that emerge originate in wildlife.”’

      4. mespo says: “Yeah, you get China unleashing a pandemic on the world….”

        But mespo says it’s no worse than the flu. Hmmm… Still, he uses the words ‘unleashing a pandemic.’ Sounds like he’s spewing out of both sides of his big mouth.

        1. There is a school of thought that most or many people in California had this “Wuhan Flu” back in Dec.-Jan. period with overall effects similar to the typical flu. It may be the case that it’s roughly the same in severity, anecdotal horror stories aside.

          It’s the nature of creating a panic that it be plausible.

          “The sky is falling, the sky is falling.”

          – Henny Penny

          See? That’s entirely plausible.

          Well, some people can see right through plausibility, huh?

      5. “mespo727272 says:April 16, 2020 at 4:13 PM

        Fishy:

        Yeah, you get China unleashing a pandemic on the world. Bad Trump. Bad.”

        “Pure ‘”: Zoologist Debunks Trump’s COVID-19 Origin Theory, Explains Animal-Human Transmission’

          1. The world (and truth) according to mespo: “The Israelis say it isn’t bunk:”

            They did — with an emphasis on “did”…, but don’t let new information get in your way, big guy. Mespo’s looking at an old article — from back in January. Since then:

            “Editor’s note (March 25, 2020): Since this story ran, scientists outside of China have had a chance to study the SARS-CoV-2 virus. They concluded it does not show signs of having been manufactured or purposefully manipulated in a lab, though the exact origin remains murky and experts debate whether it may have leaked from a Chinese lab that was studying it.”

                1. “According to Professor Luc Montagnier, winner of the Nobel Prize for Medicine in 2008 for “discovering” HIV as the cause of the AIDS epidemic together with Françoise Barré-Sinoussi, the SARS-CoV-2 responsible for the Covid-19 pandemic is a virus that was manipulated and accidentally released from a laboratory in Wuhan, China, in the last quarter of 2019. According to Professor Montagnier, this laboratory, known for its work on coronaviruses, tried to use one of these viruses as a vector for HIV in the search for an AIDS vaccine, Gilmore Health reported after Montagnier was interviewed on a medical podcast.

                  Dr Luc Montagnier discovered the HIV virus back in 1983.

                  “With my colleague, bio-mathematician Jean-Claude Perez, we carefully analyzed the description of the genome of this RNA virus,” explains Luc Montagnier, interviewed by Dr Jean-François Lemoine for the daily podcast at Pourquoi Docteur, adding that others have already explored this avenue: Indian researchers have already tried to publish the results of the analyses that showed that this coronavirus genome contained sequences of another virus, … the HIV virus (AIDS virus), but they were forced to withdraw their findings as the pressure from the mainstream was too great.”

                  http://thejewishvoice.com/2020/04/2008-nobel-prize-for-medicine-winning-dr-luc-montagnier-says-covid-19-was-manipulated-for-hiv-research/

  6. “The founders, of course, were not seeking to combat contagions when they created our system. They were trying to avert tyranny.
    Trump has to convince, not command, governors on what is best for their states.”
    *************************
    Relying on history, no less an advocate of American democracy than Teddy Roosevelt wrote: “that every executive officer, and above all every executive officer in high position, was a steward of the people,” and the Roughrider “declined to adopt the view that what was imperatively necessary for the Nation could not be done by the President unless he could find some specific authorization to do it.” Indeed, it was Roosevelt’s belief that, for the President, “it was not only his right but his duty to do anything that the needs of the Nation demanded unless such action was forbidden by the Constitution or by the laws.” Very Lockean, I’d say.

    Like Roosevelt, America’s Founders were Romaphiles — admirers of Ancient Rome. Known to every one of them was that, in times of great threat and upheaval, the Roman Senate would appoint a dictator for a period of six months imbued with implied powers and the single goal to save the state by whatever means were necessary. His power was renewable but terminable once the danger passed. Only the plebian tribunes could veto his edicts and then only in limited circumstances.

    The modern equivalent of that authority is the National Emergency Act of 1976 in diluted form. Under it, the POTUS has plenary power in all areas of the Federal government including the right to suspend some laws. martial troops put down insurrections. Some even argue he has the implied powers to compel the states under the Commerce Clause to reignite their economies.

    The Roman Republic and the The Empire that derived stood for a 1,000 years and dominated Europe, Western Asia, and Northern Africa. In times of crisis — real or imagined — I think you take advice from the successful.

    1. Can legislation, the National Emergency Act of 1976, repeal the First Amendment?

      Isn’t there an amendment process?

      The “Wuhan Flu” may be guilty of killing, through comorbidities, 00.00333% of the population.

      Does that constitute “reasonable grounds” for legislation and/or imposition of phantom “emergency powers?”

      Did not the Founders provide Americans the freedom to act voluntarily to address pathologies, even to self-quarantine?

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