The Constitution and Federalism in the Age of Pandemic, 0520 RIBJ, RIBJ, 68 RI Bar J., Special COVID-19 Issue, Pg. 11

AuthorDiane Messere Magee, Esq.
PositionVol. 68 Special COVID-19 Issue Pg. 11

The Constitution and Federalism in the Age of Pandemic

Vol. 68 Special COVID-19 Issue Pg. 11

Rhode Island Bar Journal

May, 2020

Diane Messere Magee, Esq. Law Offices of Diane Messere Magee, Inc.

In the age of pandemic, we must understand what parameters the Framers of the United States Constitution (Constitution) laid, regarding federal and state powers, in anticipation of such uncertain and turbulent times as now. It is also necessary to examine the United States Supreme Court (Supreme Court) precedent relative to the constitutional guarantees of the people that are inevitably called into question during a public health crisis.

Our federalist system of government reflects the principle of subsidiarity–that the best guarantee of a citizen’s happiness and liberty lies in the lowest level of his government. In 1788, James Madison wrote, “[t]he powers delegated by the ... Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite.*** The powers reserved to the several States will extend to all objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the state.”1

Affirming the basic principles of federalism, Chief Justice John Roberts, wrote, “[t]he Federal Government ... must show that a constitutional grant of power authorizes each of its actions.”2 “The same does not apply to the States, because the Constitution is not the source of their power. The Constitution may restrict state governments–as it does, for example, by forbidding them to deny any person the equal protection of the laws. But where such prohibitions do not apply, state governments do not need constitutional authorization to act. The states thus can and do perform many of the vital functions of modern government***even though the Constitution’s text does not authorize any government to do so. Our cases refer to this general power of governing, possessed by the States but not by the Federal Government, as the ‘police power.’3

Moreover, “State sovereignty is not just an end in itself: Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power.”4 “Because the police power is controlled by 50 different States instead of one national sovereign, the facets of governing that touch on citizens’ daily lives are normally administered by smaller governments closer to the governed. The Framers thus ensured that powers which ‘in the ordinary course of affairs, concern the lives, liberties, and properties of the people’ were held by governments more local and more accountable than a distant federal bureaucracy.[5] The independent power of the states also serves as a check on the power of the Federal Government: ‘By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power.’”6

Where does the Federal Government Fit in During a Pandemic?

“The President’s authority to act, as with the exercise of any governmental power, ‘must stem either from an act of Congress or from the Constitution itself.’”7 Specifically, the President may not make laws, but only recommend laws he thinks are good, veto laws he thinks are bad, and “take care” to see that the laws of the legislative branch are carried out.8 With proper authority, though, the President may impose Executive Orders, which liken to a general law. And, in the case of a national emergency or pandemic, the Congressional grant of authority to the executive branch is vast.

On March 13, 2020, President Donald J. Trump declared a National Emergency,9 owing to the current pandemic COVID-19.10 His Executive Order and the National Emergency Declaration primarily cite four statutes as sources of executive branch power here: National Emergencies Act11 (NEA), the Public Health Service Act12 (PHSA), the Defense Production Act of 195013 (DPA), and the Stafford Act[14] (SA).

The landmark case, interpreting the constitutionality of an Executive Order, is Youngstown Sheet & Tube Co. v. Sawyer.15 Justice Jackson’s concurrence therein is most cited when a Presidential Executive Order faces a constitutional challenge. Specifically, Justice Jackson stated that, a President’s powers, “are not fixed but fluctuate depending on the disjunction or conjunction with those of Congress.”[16]

“Justice Jackson’s familiar tripartite scheme provides the accepted framework for evaluating executive action in this area. First, ‘[w]hen the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.’ Youngstown, 343 U.S., at 635, 72 S.Ct. 863 (Jackson, J., concurring). Second, ‘[w]hen the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain.’ Id., at 637, 72 S.Ct. 863. In this circumstance, Presidential authority can derive support from ‘congressional inertia, indifference or quiescence.’ Ibid. Finally, ‘[w]hen the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb,’ and the Court can sustain his actions ‘only by disabling the Congress from acting upon the subject.’ Id., at 637-638, 72 S.Ct. 863.”17

In today’s pandemic, the executive branch is acting pursuant to broad specific Congressional grants of authority under the NEA, PHSA, DPA, and the SA. Neither Congress nor any state challenge the validity of these statutes. Under Youngstown Sheet and its progeny, the President’s authority is presently “at its maximum.”18 Indeed, the power of the executive branch during a pandemic is arguably plenary. A review of the breadth of each Congressional grant of authority to the executive branch, and Congress’ strict elimination of judicial review in time of pandemic, illuminates the analysis.

The most expansive Congressional grant of executive branch authority is the Public Health Service Act.[19] The executive branch’s Secretary of Health and Human Services (HHS), Alex Azar, specifically invoked the PHSA 42 U.S.C. 247d on March 10, 2020 under a Declaration relating to COVID-19 preparedness and countermeasures.20 And, President Trump’s March 13, 2020 Executive Order also cites the PHSA as an enabling authority. The Centers for Disease Control and Prevention, Food and Drug Administration, and National Institutes of Health all fall under the executive branch’s Department of Health and Human Services. The Federal Emergency Management Agency (FEMA) falls under the executive branch’s Department of Homeland Security.

Significantly, the PHSA precisely restricts the level of judicial review of decisions made by the HHS Secretary during a pandemic–regarding federal countermeasures. Moreover, the PHSA sets forth a Congressional intent to preempt any alternative state plan that runs counter to the federal countermeasures plan.

Specifically, “[d]uring the effective period of a declaration [under the PHSA]..., or at any time with respect to conduct under taken in accordance with such declaration, no State or political subdivision of a State may establish, enforce, or continue in effect with respect to a covered countermeasure any provision of law or legal requirement that– (A) is different from, or is in conflict with, any requirement applicable under this section; and

(B) relates to the design, development, clinical testing or investigation, formulation, manufacture, distribution, sale, donation, purchase, marketing, promotion, packaging, labeling, licensing, use, any other aspect of safety or efficacy, or the prescribing, dispensing, or administration by qualified persons of the covered countermeasure, or to any matter included in a requirement applicable to the covered countermeasure under this section or any other provision of this chapter, or under the Federal Food, Drug, and Cosmetic Act [21 U.S.C. 301 et seq.].”21

Congress, exerting its enumerated power under Article III § 1 of the Constitution, to establish all “inferior [federal] Courts,” including the kinds of cases they may hear, provided, in times of a pandemic, that the decisions of the executive branch made...

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