COVID-19 has altered states’ rights
WASHINGTON — Coronavirus took the playbook for emergency response and shredded it.
That fact has prompted an unusual number of skirmishes between states and the federal government as they wrestle over who is in charge on issues like quarantine orders, reopening and medical supplies.
“Our system of federalism is not just something that you learn about in textbooks — it’s real,” said William Galston, chair of the Brookings Institution’s Governance Studies Program. “When states enter the union, they surrender their sovereignty in many areas but not all.”
By its absence in the U.S. Constitution, public health has primarily the responsibility of states for hundreds of years, meaning governors have the last word on most coronavirus issues.
“When you review the 17 enumerated powers of Congress, you really don’t find public health identified,” said Gary Rose, political science professor at Sacred Heart University. “Anything not given to the federal government, as the 10th amendment says, belongs to the states, unless it is specifically prohibited.”
It’s a murky distinction, however, because where coronavirus problems or response bleed across state lines, the federal government has the opportunity, legally at least, to seize the reins by virtue of the Commerce Clause of the Constitution, Galston said.
“It’s been true since the 1930s that state actions that have a substantial effect on interstate commerce can come under federal scrutiny, regulation, control,” Galston said. “There is some ambiguity there. It’s not clear to me that the federal government is entirely powerless if a state takes an action that has a powerful spill-over effect.”
These federalist clashes have not plagued past emergencies, like natural disaster or even terrorist attacks like Sept. 11, 2001, to the same extent because states and the federal government have overtime established consistent response methods for those events with clear responsibilities and authorities delineated, Galston said. No such playbook existed for the first global pandemic to devastate the U.S. in about 100 years.
In this case, “what we are learning is we don’t really have the system in place for effectively coordinating the activities of the federal government and the 50 states,” Galston said.