By Jennifer S. Bard
The threat posed to the welfare, economy, and security of the United States by the rapidly spreading COVID-19 virus is as serious as any we have ever confronted.
But, at the same time that the federal government is spending billions of dollars on distributing vaccines, and exerting their authority by prohibiting evictions and requiring masks on public transportation, many individual states are not just refusing to take effective measures to stop the spread, but also are pouring gasoline on the fire by doing all they can to undermine even the remaining, weak guidelines published by the CDC. Some have gone so far as to restrict the flow of information by prohibiting public health officials from disseminating news about the vaccines provided by the federal government.
The effects of these actions not only promote the spread of COVID-19, but also fuel its mutation into new forms, and cannot be confined by any existing geographic or cartographic boundary. So how is the federal government allowing this to happen? It’s not for lack of authority.
Given the magnitude of the current danger, the federal government has now, and has had since the day the U.S. Constitution was ratified, all the power it needs to stop the actions of individual states that put the entire nation at risk. But what good is this power without the will, or perhaps, even, ability to exercise it?
Is the COVID-19 pandemic the event that sparks the unraveling of everything we understood about the role of the federal government to step in when individual states act in ways that threaten the security and economic health of the entire nation? The silence of the federal government suggests that it might be.
While a new, more contagious, and apparently deadlier version of the ever-mutating virus is spreading rapidly, in many states, less than half the population are fully vaccinated and among them, most have no plans to seek out a vaccine. Given this environment, it is even more crucial to take preventative measures such as masking and social distancing, yet the federal government is maddeningly unwilling to even advise universal masking, let alone require it. This lack of resolve has emboldened many governors to drop all preventive measures, with some even taking active steps to ban them. E.R. Physician and public health expert Dr. Megan Ranney describes the situation as “the rerun of a really bad show.” Dr. Anthony Fauci declared himself horrified by reports of audiences cheering efforts to interfere with the vaccination campaign.
Even worse, the population most affected is one with a zero percent vaccination rate: children under the age of 12. And, while vaccines are available for older children, rates of uptake are low, even in areas where many adults are getting vaccinated themselves. Children are not just contracting COVID, but they also are getting very sick in increasingly large numbers. While the CDC continues to recommend that everyone who hasn’t been vaccinated, including children, wear masks and social distance, the lack of any requirement to do so has made compliance low in most places and nonexistent in many.
So how are individual states getting away with this? Why can’t Congress or the CDC or the President himself step in and stop this dangerous behavior?
The answer is: they are getting away with this because the federal government is letting them. Three central provisions of the Constitution, as well as an overall commitment to the supremacy of federal authority when it comes in direct conflict with a state’s plenary power form a foundation for the federal government override decisions like the ones now putting the nation at risk.
This is exactly the kind of crisis for which those powers were created. The failure of the states to control the spread of COVID-19 has become a direct threat to current national security (see Prof. Oona Hathaway), and, to the extent that its after-effects will continue to harm the children who are contracting it, to future security as well. Even if it were not a threat to national security, the powers of Congress to spend the money it collects in taxes to promote and protect the public’s health should prevail over the decision of an individual state to suppress vaccine information. If these two rationales are insufficient, the COVID-19 pandemic’s threat to the national economy, to the commerce activities of the United States outweigh the policy preferences of any individual state. For those interested in the mechanics of this, I recommend a series of excellent reports by the Congressional Research Service detailing further the powers of the federal government to respond to national emergencies, Mask Mandates, Scope of CDC Authority, State and Federal Authority to Mandate Vaccines, National Emergency Powers, and Federalism Based Powers of Congress, and promise to write more on this later.
Yet it seems that the more outrageous the action of individual states, the less willing the federal government is to exercise any of these powers. To better understand the present and future dangers of this unprecedented and untenable situation, it may be helpful to consider a thought experiment inspired by the much-anticipated new Marvel TV show and ask “What If.”
What if Florida had rejected federal guidelines and help, and acted according to its own immediate self-interest during the 2014-15 Zika outbreak?
Zika, as you will recall, is a virus transmitted from person to person by a particular species of mosquito, the Aedes aegypti. First identified in 1945 in Brazil, by 2014 cases were emerging in the United States, with an epicenter in Florida. Unlike other mosquito-borne viruses that strike quickly, and are often accompanied by excruciating pain, such as dengue, which is also identified by the name “Breakbone Fever,” Zika’s target is far more subtle and far worse, as Dr. Peter Hotez warned in 2016 of what he called “the virus from hell,” because of “what it does to the developing brains of unborn babies.”
The federal government came to Florida’s assistance almost immediately. While the CDC was the lead government agency, a 2017 oral history shows the FDA, NIH, and BARDA also played important roles in the response. And once the threat was established, the CDC worked closely with Florida’s Health Department to support its efforts to prevent transmission through mosquito control efforts and issue joint guidelines. Its role included reviewing the existing evidence and CDC did everything from providing 10,000 bottles of DEET, to testing specimens in its own labs, to identifying the species of mosquito responsible for local spread.
But what if Florida had said “thanks, but no thanks”? What if, with the support of a different President, it was able to push back against the CDC’s declaration that the Zika virus was the cause of birth defects in babies and pressure it to label the World Health Organization’s warnings as overblown and alarmist? What if it refused CDC’s assistance and went even further than it actually did in cutting back its own mosquito eradication efforts? What if it rejected the distribution of DEET and refused to require places of public accommodation to urge its use?
There would have been be good reason to do so. The threat to Florida’s tourism industry from CDC warnings against travel was real and obvious. But Florida didn’t say no, because at the time it seemed like it couldn’t. Whatever the threat to its own economy, the threat of a rapid spread of Aedes aegypti mosquitoes to other states was even greater and it seemed impossible that the federal government would allow Florida to do nothing.
Amid the COVID-19 pandemic, states refusing to institute necessary measures to slow the spread of disease similarly face concerns over damage to their economies. But what’s different from the Zika example is the acquiescence of the federal government, and the public, to the rejection of the central tenet of our system of government: that being a part of the United States sometimes means having to sacrifice individual interests for the good of the country as a whole. If the Russians were advancing on Albany, we would not allow New Jersey to declare neutrality based on its wish to “take its chances” with the enemy occupation. But that’s just what states who won’t take action to stop the pandemic are doing.
And we all know why it’s happening. Given the events of past several years, it seems more than likely that any imposition by the federal government of public health measures aimed at the collective COVID-19 threat would spark outrage, immediate legal challenges, and perhaps armed insurrection. Such lawsuits are likely to result in a series of contradictory rulings throughout the federal judiciary, until the matter could be taken up, perhaps through review of an emergency order, by the current Supreme Court, which seems, in a series of recent rulings on state emergency orders, oddly unconcerned about public health.
And what would President Biden do if the Supreme Court ruled in his favor and the states still refused to enforce federal edicts? Send in the Army? Or simply step back, not conceding authority, but not exercising it either, as the federal government has done in response to state marijuana legalization? What would the implications of that be for future federal/state disputes on any issue? What good is an enumerated power in the U.S. Constitution if it’s not used or respected? Is it like an electric fence without any current running through it, which will reveal itself not to be a barrier at all once someone crosses with impunity?
The situation we are in now leads to the question: has our nation’s health always relied on a collective illusion that no one state could act in ways that harm others? And, if so, what will happen now that the illusion is shattered, and states no longer perceive that they must accept federal intervention when faced with the risk of contagious or infectious disease that knows no borders?