This month, federalism is getting a workout in an unanticipated context as old as the nation itself: response to an epidemic. The coronavirus may be novel, but in the early years of the republic other scourges (cholera, malaria and right here in Washington DC, yellow fever rising out of actual Potomac swamps) were regular and unwelcome visitors.
The Founders in allocating power between the federal and state government reserved police powers to the states, under the Tenth Amendment, and responsibility for safeguarding public health has always remained as one of the core responsibilities of state government, which has in places like New York and California in turn devolved it under the state constitution to large cities like New York City, Los Angeles, San Francisco and Chicago. In emergencies, it is the Governors (or Mayors) who issue executive orders, activate the National Guard, and ask the federal government for emergency financial aid or even, subject to some important restrictions, military aid.
The one exception is a federal quarantine. That is what the Administration declared for people entering the US from China, Iran, Italy and other nations affected first by coronavirus. The federal government can do that because it is a matter of immigration of foreign affairs, where it does hold primacy.
This week, at a briefing on US response to the coronavirus, President Trump announced a national emergency to “unleash the full power of the federal government.” What he really should have said is that he has made a declaration under the Stafford Act, which authorizes federal aid for disasters “of a magnitude that effective response is beyond the capabilities of the state and local government” It means states are now eligible for funding from the national Emergency Fund, a pot of federal money generally meant to cope with natural disasters like flooding and hurricanes.
The declaration of a federal emergency to respond to a public health crisis is rare, but it has been done in a few situations like in the response to West Nile Virus. This does not mean that the federal government has now taken over coronavirus preparation and response.
Additionally, the National Guard, which is authorized separately in each state, remains under the control of its governor. When it is “federalized” in an emergency, that means that salaries are assumed by the federal government. The Governor remains the commander in chief of the forces, again, a Tenth Amendment guaranteed authority.
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US Military? The governor can invite them in, but only for limited peacetime functions, including homeland security and drug interdiction, but not for armed ones, under restrictions first imposed by the post-Civil War Posse Comitatus Act. All that is a useful guarantee against a federal occupation of a state. Subject to a clear understanding of what the Guard and any US military assistance should and should not be doing, they can be the Governor’s and the public’s best friends in this situation.
What about those guys we’ve seen clustered around the microphones at the White House in the last weeks: from CDC, the US Surgeon General, HHS and DHS? The federal role in response to public health emergencies is largely advisory.
A fundamental, common misunderstanding about FEMA (which is after all the Federal Emergency Management Agency), a DHS constituent agency, and the other emergency management and response divisions in the executive branch is that they are there to step in when state and local governments are overwhelmed. As the Stafford Act language makes clear, that is true to a point. The agencies offer technical recommendations and assistance, logistical support and grant funding. FEMA, a lean agency, maintains surge capacity to hire contract personnel who can reinforce its regular staff and their corresponding state emergency responders to assist locals to stand up shelters and feeding stations, often also aided by the national Red Cross and local chapters, and faith-based relief organizations. The Small Business Administration sets up to take applications for financial assistance to businesses hard-hit by a disaster (as will surely happen to restaurants, hospitality, entertainment and other public-facing businesses in the wake of Covid-19)
FEMA offers the National Incident Management System for guidance to states and their subdivisions, NGOs and the private sector, but the 2018-2022 FEMA Strategic Plan makes no reference to public health disasters, with the emphasis being on climate-related disasters and wildfires. Nor is there any reference to the strategic stockpile and what is needed for preparedness on supplies, such as the now urgently needed ventilators and supplementary oxygen. This week, in a call with Governors, Trump told them they should find their own supplies.
CDC is an epidemiology research and tracking agency; and the Surgeon General heads a division of some 6,000 commissioned military public health officers within the US Public Health Service, part of HHS. The Public Health Service and CDC, together with NIH researchers, labor on emerging threats: they research pathogens, vaccinations and countermeasures (as does the private sector) and maintain a small national emergency stockpile.
Like FEMA, these agencies advise and support, they don’t direct what happens in the states. A critical function that they can play is recommending how to use the infusion of cash that the national emergency declaration now has shaken loose.
State health agencies are not well-situated to deal with the current crisis either. The culture of public health in contemporary America focuses on chronic disease, not infectious disease. In good times (say up until the beginning of 2017) state public health authorities primarily concerned themselves with response to chronic illnesses like diabetes and heart disease, focusing on health disparities and the social determinants of health – where you live and your access to preventive health services. There is a thick network of relationships horizontally, between the states and vertically, with the responsible federal agencies, mediated by health professionals and associations that has grown up around these efforts; and by training and inclination, this is the space that a lot of public health professionals want to operate in.
The public health surveillance function which tracks seasonal flu, administers measles vaccines to indigent children, or wakes up when there is a local crisis like the Zika virus or repatriation of relief workers exposed to Ebola virus, has long been underfunded in most jurisdictions. It largely atrophied given the rarity of a “black swan” event like an epidemic. State public health agencies had relied on the CDC and NIH for leadership if such a crisis emerged. But in the Trump administration, the early warning and countermeasure function has been hobbled by funding cuts, departure of long-time professionals, and a decision bias out of the White House against data collection and the dissemination of bad news. When the coronavirus emerged, it was like the fireman waking up to the five-alarm fire bell sounding. States knew what they needed to do; but there was not enough trained personnel, equipment, test kits or cash on hand to do it.
Governors in the last two weeks have been dusting off their emergency public health response notebooks and assessing the authorities that they have. Some, like Gavin Newsom of California have pushed the envelope of admittedly broad powers by ordering the closing of restaurants and bars, as well as schools and other publicly funded institutions. Governors Cuomo of New York (D) and Mike DeWine (R) of Ohio have also taken aggressive measures, showing the non-partisan nature of governors’ deployment of their power in this public health emergency.
The Governors can also act together through organizations like the National Governors’ Association, learning from best practices employed this month and in past crises. Mayors also have a critical role. Last week, former New York Mayor Michael Bloomberg’s philanthropy announced a network to support mayors in their response to the coronavirus crisis.
In the midst of all of this, civil rights watchdogs must also remain vigilant. It is important that emergency measures not be confused with the status quo; and that process guarantees for individuals not be steamrolled when the rapid response phase of the crisis ends. As Professor Larry Gostin has noted, while quarantine of the at-risk well and isolation of the sick is part of the public health toolkit of the governors, extreme versions like the cordon sanitaire (physical and law enforcement blockade of geographical subdivisions) put in place for Wuhan and now Italy are of dubious constitutionality even in an emergency in the US.
Extreme restrictions will put our most vulnerable, and in turn everyone else, at risk. Even now, as immigration courts are being shut down temporarily, the lives of thousands of undocumented persons are threatened as confinement in unhealthy conditions is being prolonged. Prisons and jails are also places where spread can be rapid requiring reconsideration of existing criminal justice practices. The moment calls for aggressive measures; but not unconstitutional ones. Governors will need to consult their public health advisors, and their lawyers, to make sure they play this right.
So what are some things that governors should be doing right now? Here are some big ones:
- Provide accurate and timely information and guidance to citizens. This should be sufficiently granular so that parents know what matters for their school-aged children, so that the young old and old old understand the variation of their risk, and so that everyone understands why social distancing is a public good right now.
- Survey the resources: this means an inventory not only of ventilators and critical care beds, but also National Guard personnel, retired physicians and nurses, recently retired army medics, and the enormous reserve of faith- and community-based volunteers who can be mobilized if not for direct care, than for back-office support.
- Utilize Executive Orders and proclamations to prevent price-gouging, profiteering and other abuses.
- Examine regional compacts and EMAC so that transfers of critical care patients can be made regionally to hospitals that may have beds available.
- Work with public and private partners to alleviate short-term financial burdens of such needed measures as the temporary end to elective surgery to keep beds open for critical cases.
- Waive regulatory provisions that slow up delivery of urgently needed supplies. Demand that federal regulatory agencies do the same.
- Sign emergency paid sick leave measures that include both those on payroll and those in the informal and gig economy. Right now, nobody should feel compelled to show up at work sick.
- Push the federal government for transparency on results of testing and its own planning efforts.
Originally posted at Georgetown Law
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