Despite millions of active infections and tens of thousands of COVID-19 deaths, multiple state governors, led by Georgia Governor Brian Kemp, are actively reopening businesses and withdrawing stay-home orders. President Trump should be elated. The White House has aggressively pushed state efforts to reboot the economy. Yet, the president publicly criticized Kemp for proceeding “too soon” in a rush to reopen. Underlying the political theatrics, the novel coronavirus is exposing a deep rift in American federalism as federal and state governments vie for primacy in remedying the nation’s ills. What powers could the president use to influence state actions whether to impose or lift mitigation measures? What zone of decisions are designated for the states alone?
The COVID-19 Threat
In less than three months COVID-19 has obliterated the U.S. economy, laid bare the inadequacies of our public health capabilities and health care systems, and revealed gross inequities in real-time allocations of limited resources. In the twenty-first century, federal, state, and local governments are battling the pandemic with social distancing methods the constitutional framers would have recognized in the 1700s. Separating ill persons, limiting gatherings, closing businesses, and shuttering religious institutions are all essential in the battle to stop this kind of “silent enemy.”
While these measures came too late in many states to effectively tamp down the COVID curve, they have carried heavy tolls across the country. In excess of 26 million American workers have filed for unemployment, their debts are piling up, and massive numbers of businesses are failing. Federal infusions of hundreds of billions in relief funds are insufficient. The pandemic is destroying many Americans’ livelihoods as hints of long-term economic depression abound.
Everyone wants a quick fix to this crisis – one that would allow them to get back to work and return to some sort of normalcy. Of course, no one is exactly lining up to acquire COVID-19 infection either. And for good reason – it’s an efficient killing menace that can take Americans at any age within days of infection, although its greatest impacts fall on seniors and persons with chronic conditions. Still, the economic harms at societal and individual levels are palpable.
Seeking Solutions: Back to Business
The quest for governmental solutions is shifting as Americans’ collective patience with widespread social distancing seemingly wears thin. The goal has shifted from preventing all possible infections to safely balancing infectious disease controls and economic activities.
Wherever that balance lies, Georgia Governor Brian Kemp has assuredly not found it. His plans to reopen salons, barber shops, restaurants, theaters, and bowling alleys, among other things, defy the minimal White House parameters for gradual phase outs of social distancing measures. In a state hard hit by coronavirus infections and lacking sufficient testing, Kemp’s orders have drawn criticisms from public health authorities and politicians including Atlanta’s Mayor Keisha Lance Bottoms.
Georgia is not alone. Dozens of states are considering vigorous re-opening measures fueled by mild protests despite broader public concerns and support for continued mitigation. Tennessee is preparing to reopen businesses across multiple sectors in its rural districts. Texas Governor Greg Abbott anticipates opening “massive amounts of business” later this month. Along with Arizona and multiple other states, he has already rescinded orders limiting non-essential health services. Montana Governor Steve Bullock will let local school districts decide to open as early as May 7. Crowds are returning lawfully to beaches and lakes in Mississippi in prelude to greater allowances under shelter in place on April 27. Multiple state governors plan to let their “stay home” orders to lapse at the month’s end.
The cumulative public health consequences of these “back to business” strategies are largely unknown. Many public health experts and health care workers fear the worst – namely a rapid rise in COVID-19 cases lending to a second wave over the summer and into the early fall. Strains on health care systems may be insurmountable given there is no cure, treatments are resource intensive (and often futile), access to tests and personal protective equipment (PPE) is highly inadequate, and safe and effective vaccines are still months away.
The Federalism Quandary
Even less defined are the legal ramifications behind the political grandstanding about reopening or maintaining stay home and other mitigation orders. National and state responses to COVID-19 are severely testing constitutional structural principles of federalism at the heart of public health responses.
Following multiple federal missteps early in the pandemic around testing, coordination, and messaging, substantial constitutional challenges have surfaced. On April 13, the president claimed all-inclusive federal power to require state action, specifically to open up the economy and override New York and other states’ mitigation efforts. Two days later he pushed responsibilities back to the states to follow forthcoming White House reopening guidelines. When some states balked, Attorney General William Barr threatened to sue states and localities whose infection control measures counter federal objectives. After Georgia laid out aggressive reopening measures, Trump criticized a political ally, Kemp, for proceeding too quickly (after initially supporting the governor).
Americans are left wondering, “which level of government is actually in charge here?” In the face of a pandemic like COVID-19, the answer under principles of federalism is increasingly clear: neither. Constitutional federalism is designed to assure political accountability at each level of government not so much through clear demarcations of power, but rather through incentives to engage in collaborative responses.
Assessing State and Federal Powers
The 10th Amendment reserves police powers, including inherent sovereign powers to protect the health, safety, and general welfare, to the states. This suggests states are primarily responsible to quell substantial threats like COVID-19. States like California, Illinois, New York, and Washington are calling their own shots, invoking strong emergency public health powers coupled with local government support. They and more than a dozen other states have banded together in regional alliances to generate their own roadmap to reopening. Their successes are winning political points for their governors among many, but not all, residents.
Trump has his own constitutional levers to pull. By declaring or endorsing multiple national states of emergency authorized by Congress, the president unleashed a bevy of emergency options, many of which have been used. Federal agencies like the Department of Health and Human Services, Centers for Medicare and Medicaid Services, and Centers for Disease Control and Prevention have issued influential guidance. Specific federal statutes or regulations have been temporarily waived. Liability protections for health care workers and others have been extended to insulate them from negligence claims related to their pandemic response efforts. Manufacturers have been cajoled into ventilator and PPE production via the invocation of the Defense Production Act.
None of these efforts require states to follow federal leads, but additional powers are even stronger. Exclusive federal authority to regulate interstate commerce is expansive. The attorney general’s threat of litigation against states is purportedly staked on grounds that social distancing has gone too far, inhibiting national commerce powers statutorily entrusted to federal agencies.
Under 42 U.S.C. 246, for example, the U.S. Surgeon General and Health and Human Services are authorized to take actions “necessary to prevent the introduction, transmission, or spread of communicable diseases … from one State or possession into any other State or possession.” State actions deemed in conflict with federal regulatory authorities may be preempted given the supremacy of federal laws. The Department of Justice may also raise additional arguments pertaining to blatant infringements of constitutional rights, including rights to travel, privacy, and due process, from overly-aggressive state actions. The Department has already intervened on behalf of a Mississippi church in a suit raising First Amendment objections to a municipal restriction on public gatherings.
In addition, federal spending powers allow Congress and the president to tie infusions of state assistance or relief funds to specific conditions, such as rescission of state business closures. While the federal government has not been so brazen yet to set such conditions, few states can afford to give up access to deep pools of resources.
In his invocation of the Defense Production Act, Trump has already intimated that COVID-19 implicates national security. Taken a step further, he could more formally classify the pandemic as a national security threat, providing even greater impetus for the exercise of existing federal powers to the possible exclusion of states. If tested in court, exclusive federal interests in protecting national security may prevail.
Federalism’s Bottom Line
The driving premise of federalism is that the division of powers across the federal-state divide enhances political accountability and assures American freedoms. Many see profound weaknesses in this constitutional infrastructure. Divergent responses among neighboring states and feckless federal interventions are sure to lead to disarray and litigation.
However, federalism also carries strengths. How many Americans would willingly hand over the reins of pandemic response solely to the federal government? Conversely, who would favor a complete federal withdrawal of efforts? The president has literally, and wrongly, attempted to appease all Americans with countervailing statements along both these lines. What the Constitution actually calls for, especially as states consider reopening strategies, is what the framers proposed long ago: cooperative, collaborative federalism.