Why exactly is this the states' fault? This seems like something that would be far more effective at the federal level. It's the exact same argument as the parent comment, it shouldn't be up to states to create tracing and isolation infrastructure, test kits, etc.
Putting that burden on the states is exactly how we got to the place we are in. Without effective federal support and direction, no solution will be effective since inter-state travel exists and there's 50 different states that will come up with 50 different solutions, some more effective than others.
It makes zero sense to force states to individually do all this when a single entity would be far more effective.
Because it was their responsibility. The CDC, as well as about 235 years of law, was absolutely clear about this: https://www.cdc.gov/phlp/docs/phl101/PHL101-Unit-5-16Jan09-S... (slides 8, 10).
> This seems like something that would be far more effective at the federal level.
Maybe that’s a discussion we can have for next time. But the point is that we had a very long-standing division of labor that states knew about, but they didn’t prepare. You can’t have a debate about changing the division of responsibility during a pandemic. The idea that someone else should have been in charge isn’t an excuse when the responsibility had been assigned to you. Put differently, the CDC presentation I linked to, which says the CDC is just there to provide “expert assistance” wasn’t a surprise to anyone.
> It's the exact same argument as the parent comment, it shouldn't be up to states to create tracing and isolation infrastructure, test kits, etc.
But it was. Just like it was up to France or Germany to do those things, and not some EU agency. Italy isn’t blaming the eCDC for its own lack of preparation.
> Putting that burden on the states is exactly how we got to the place we are in.
No, we got into the place we’re in because states shirked a responsibility that had plainly been assigned to them. (And in fact, was inherently theirs as a matter of the very structure of our federation).
> Without effective federal support and direction, no solution will be effective since inter-state travel exists and there's 50 different states that will come up with 50 different solutions, some more effective than others.
Canada, Australia, Germany, etc. all managed to do this just fine.
You mean countries with federal-led and coordinated responses? I wonder why they did just fine. Maybe it was the leadership and support that the US so desperately lacks.
https://www.canada.ca/en/public-health/services/emergency-pr...
https://www.health.gov.au/news/health-alerts/novel-coronavir... and https://www.health.gov.au/committees-and-groups/australian-h...
https://www.bundesregierung.de/resource/blob/973812/1753872/...
The states/provinces within may have been the primary ones managing in certain cases, like Australia, but the entire response in all three countries is federally led and centralized through committees and support from the federal governments. In fact, one of the key parts of Australia's response is specifically
> ensure the response is consistent and integrated across the country
> In United States constitutional law, police power is the capacity of the states to regulate behavior and enforce order within their territory for the betterment of the health, safety, morals, and general welfare of their inhabitants.
This is not an unusual principle. Germany has a similar principle, which is why Angela Merkel didn’t issue a mask order either.
The federal agencies are best understood as having a coordinating role for when inter-state issues are involved. This CDC PowerPoint (which predates Covid) explains: https://www.cdc.gov/phlp/docs/phl101/PHL101-Unit-5-16Jan09-S...
See the first bullet on Slide 8: “State and local governments carry out most communicable disease surveillance and control under the police power.”
See Slide 10: “Most powers for public health surveillance, investigations, and interventions derive from state and local law.”
The federal government provides “expert public health assistance” and regulates “disease carriers who cross state lines.”
So when we talk about things like tracing protocols, where does that fit? The CDC can provide expert advice about what sorts of testing protocols are effective. But the state governments must actually develop and execute the surveillance and intervention: testing patients, quarantining them, etc. The federal government is supposed to assist insofar as patients might move between states.
This is how everyone has always understood the division of labor in public health to be set up. Countries like Germany have similar legal structures, and have managed just fine. Even countries like Japan, where the central government does have a general police power, still delegates things like testing because the local governments are more nimble.
Only in America would be ignore the clear division of labor that’s in place during a pandemic.
No, it's not. The federal government is, in theory, fully empowered to use any of it's enumerated powers for any purpose not expressly prohibited, which public health is not, and has quite emphatically adopted policy around exercising its power for that purpose, starting at least as far back as the establishment of the marine hospitals in 1798, later, in many steps, reorganized into the modern US Public Health Service.
The reorganization into the US Public Health Service was in 1912, and that’s when it picked up general authority to study infectious diseases. But that era isn’t really relevant to what’s constitutional.
COVID is clearly a national security issue, which is squarely a matter for the federal government. The prior administration made pandemic response part of the national security apparatus (i.e. the NSC). According to public testimony, this continues in the current administration despite a reorganization.
You claim a bare recitation of fact, but in my view that is completely inaccurate. There is a fundamental misunderstanding here. One of the first iterations of our government under the Articles of Confederation didn't have a strong enough government to respond to national security threats and we could have lost the war for it. Having a strong federal government that can accomplish things the states cannot is literally the reason for our government as it exists today.
As I mentioned, by our own government's admission pandemic response is a national security issue. There are two additional reasons why this is clear. First, what if the pandemic was started by a biological weapon? Would we still leave it to the states then? Certainly not, yet it would be the same exact pandemic whether started by terrorists or by accident. Second, COVID is going to cost hundreds of thousands of lives and billions of dollars. On and don't forget it literally took a nuclear powered aircraft carrier off the battlefield. It is then by definition a national security issue because of how weak it makes our country.
I generally enjoy your writing on these issues but I think you have the basic structure of our government completely reversed. We threw out the Articles of Confederation and created a stronger federal government because disjoint states did not have the ability to respond to massive threats at the scale of COVID.
One you throw out your designation of COVID as a public health matter and recognize it is an issue of national security (again by our government's own admission) I think a lot of your other arguments do not hold up. Some things that you mention as a matter of law are clearly correct with respect to masks. But the idea that "nobody thought pandemic response was mainly a federal responsibility" is completely false and counter to the ideals of our government after the Confederation Period.
Yes, it does. It may not be explicitly enumerated in the Constitution, but the federal government is absolutely tasked with responding to national disasters, of which pandemics are one example. What is the CDC? What is FEMA? What is the NIH?
>Merkel didn’t issue a national mask order, for the same reason Trump didn’t: she wasn’t legally allowed to.
Even if it were true, that would make this the very first time in his life that legal limitations ever stopped Trump from doing something.
Same thing with FEMA. It’s not supposed to be front-line disaster response. It’s supposed to be a backstop for when a particular state is overwhelmed. That’s why FEMA is legally not allowed to act until a governor declares a state of emergency and asks for assistance. But every state is supposed to be prepared to handle their own disasters. FEMA is a backstop—it’s not supposed to have the resources to help every state at the same time.
The NIH is a research agency. It doesn’t have an operational role in public health.
Even if we overlook what’s “explicitly enumerated” and we look at the structure that exists today by historical accident, the federal government is still relegated to an advisory role, and dealing with travel. But those aren’t the things that went wrong with the pandemic response. Lockdowns are an operational role, and entrusted to the states. PPE, testing kits, having people in place to do tracing and isolation? All of that is operational, and was assigned to the state governments. Mask orders are an exercise of the general police power, and entrusted to the states.
Again, this is not an ideological point about how things should be. (Although, they are this way because that’s how the constitution sets things up.) It’s a point about whose job it was to be prepared. The states were supposed to be prepared for this, and they weren’t. By the time the pandemic hit, there wasn’t much the federal government could do. It could advise states about tracing and isolation protocols, but it has no boots on the ground to actually do any of those things. The states were supposed to be prepared to do all that.
This isn’t an ideological point, it’s a bare recitation of fact. Somehow, other federal republics like Germany managed to engage in an effective pandemic response while leaving most of the work to the states. For example, while Germany eventually had a mask order everywhere, the states all implemented them at different times. School reopening was all done on different schedules with different procedures. Merkel didn’t issue a national mask order, for the same reason Trump didn’t: she wasn’t legally allowed to.
This was not a surprise. Nobody thought pandemic response was mainly a federal responsibility. States, particularly New York, were just completely unprepared for a job they knew was theirs.
So I agree ideologies are the problem, but this is a problematic ideology too. Why would people use a pandemic to try and relitigate the basic structure of our government? Why can’t we just work within the system to solve problems?