Role of the State in a pandemic situation.

 In the early days of the COVID-19 pandemic, President Trump considered imposing a “quarantine” on parts of New York, New Jersey, and Connecticut.

While the Twitter-verse frantically debated the constitutionality of such a move, New York Governor Andrew Cuomo equated it to “a declaration of war on the states.”

Just two weeks later, as state officials around the country began to consider waking the nation from the economic equivalent of the medically induced coma that it had been in for several weeks the President claimed for himself the authority to determine when states should “reopen” their economies, asserting that, local leaders “can’t do anything without the approval of the president of the United States When somebody is the president of the United States, the authority is total.

And that’s the way it’s got to be. It’s total.” Doubling down on this position, Vice President Mike Pence declared that “the authority of the president of the United States during national emergencies is unquestionably plenary.”

Even the country’s most pro-executive-power legal scholars rejected these statements, with Governor Cuomo once again providing the most quotable response: “We don’t have a king in this country.” 

These presidential claims of power, as well as Attorney General William Barr’s pronouncement that the Justice Department would “monitor state and local policies and, if necessary, take action to correct any that potentially infringed on Americans’ constitutional rights, 7 ensured that the division of powers and responsibilities between the state and federal governments would be among the many topics of debate surrounding the United States’ response to the novel coronavirus.

Perhaps unsurprisingly, the reality is more complicated than either statements by President Trump or Governor Cuomo suggest.

As a public health matter, the primary responsibility for pandemic response lies with the states.

At the same time, multiple laws, policies, and the numerous pandemic-response plans that the federal government has developed make plain that a successful fight against an outbreak of the scale and severity of COVID-19 requires a national response, with significant responsibilities necessarily falling on the federal government.

And indeed, numerous authorities relevant to pandemic response some specific to public health, others more general emergency tools-rest with federal officials.

By many accounts, however, the federal government has not been too heavy-handed – as President Trump’s statements cited above may suggest—but rather the opposite.

State leaders have consistently pleaded for more active federal leadership more policy guidance, more material resources, more national coordination.

It thus appears that President Trump has been quick to claim power theoretically sometimes powers beyond those that he actually possesses but often reluctant to exercise it.

This paper will explore the ways in which existing law and policy envision distinct pandemic-response roles for the state and federal governments, and distinct powers to fulfill those roles.

It will then turn to the United States’ coronavirus response and argue that the federal government failed to bring the full range of its powers to bear-and indeed, that it continues to do so-in ways that have undermined the states’ ability to mount an effective response.

As Ed Richards’ contribution to this special issue shows, under our federal constitutional system, the states enjoy inherent police power to regulate in the service of the public health, safety, and welfare of their people.

States thus retain a general authority to regulate that has no federal analogue.

The many pandemic response plans developed at the national level recognize that the primary responsibility for addressing domestic health emergencies rests with states and localities.

The exact contours of state pandemic-response authorities, as well as whether primary responsibility for wielding them lies with statewide or local officials, vary by state.

Nevertheless, each state possesses multiple tools to wield against infectious disease outbreaks.

Even outside the emergency context, states regularly enforce mandatory screening and vaccination rules; conduct health inspections of places of business such as restaurants and nail salons; and engage in surveillance, tracing, treatment, and notification of individuals who have been exposed to infectious diseases such as tuberculosis or HIV.

The routine exercise of these authorities fails to attract the attention devoted to pandemics like COVID-19, but they illustrate the nature of responsibilities carried out by local public health services across the country. 

As the COVID-19 experience has demonstrated, pandemic conditions prompt states to utilize these authorities in more intrusive ways, many of which we saw rolled out across the nation in the spring and early summer months of 2020 — social distancing requirements, curfews, business closures, travel restrictions, limits on assembly, quarantines of people or places exposed to the disease, and isolation of infected individuals.

All fifty states have declared COVID-19 a public health emergency, a step that can augment the powers of governors or local officials, often authorizing them to impose such measures by fiat.

Should the medical community succeed in developing a vaccine for the virus, we can expect many states to require inoculation, as they do in the case of other infectious diseases such as measles.

The Emergency Management Assistance Compact, which all states have implemented through legislation, also permits states to assist in emergency response efforts across state borders-for example by sending personnel or equipment to their neighbors.

To be sure, the states’ powers are not absolute.

Mandatory quarantines or isolation of individuals, for example, are generally permissible only if government officials have reason to believe that an individual actually has been exposed to an infectious disease, and the decision to quarantine or isolate is subject to procedural due process protections.

At the same time, while the emergency public health measures imposing constraints on individual liberties, such as the freedom of assembly, the right to travel, and the right to free exercise of religious practices have faced multiple legal challenges, the courts including the Supreme Court-have extended state officials significant leeway in determining what is required to address public health risks.

There is no doubt that state, local, and tribal authorities are entitled to take aggressive measures necessary to protect public health.

Thus, state governments are on the front lines in the fight against COVID-19, and it is with the states that the broadest public health authorities reside.

That said, state resources alone are inadequate to meet public health emergencies of the magnitude of COVID-19, which endanger innumerable lives, transcend both state and national borders, and inevitably overwhelm resources available at the state and local level.

The federal government therefore also has its own multi-faceted pandemic-response toolkit. Various federal government entities, as well as at least one Blue Ribbon committee, have developed emergency-response plans designed to guide pandemic response should the need arise.

Some, such as the Department of Health and Human Services’ (HHS) Pandemic Influenza Plan, originally issued in 2005 and updated most recently in 2017;

the Homeland Security Council’s National Strategy for Pandemic Influenza and its Implementation Plan; the Defense Department’s Global Campaign Plan for Pandemic Influenza; and the National Security Council’s (NSC) infectious disease Playbook, are pandemic specific. 

Others, like the National Blueprint for Biodefense, which is the product of a bipartisan commission made up of former lawmakers, executive-branch officials, and experts;

the Department of Homeland Security’s (DHS) National Response Framework; and HHS’s National Health Security Strategy and Implementation Plan, cover a range of possible emergency scenarios that would include pandemics.

Finally, there is a U.S. Government Pandemic Crisis Action Plan (PanCAP) adapted specifically to respond to COVID-19.

As the foregoing lists demonstrate, there is no shortage of plans issued by different entities during different presidential administrations. How those plans fit together, if at all, is less clear. Yet there are some elements common to all of them.

Without exception, each of these plans envisions an energetic role for empowering the federal government to require or prohibit particular actions, such suspected of carrying infectious diseases from entering the country.

Just as important, however, are federal agencies’ numerous non-coercive tools-powers that enable federal actions to support preparedness and response efforts, such as coordinating among government entities, vaccine and treatment research, public education efforts, and management of resources.

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