The Roles of the State and Federal Governments in a Pandemic

• Published date: 01 January 2020
• Date: 01 January 2020

The Roles of the State and Federal

Governments in a Pandemic

Emily Berman*

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61

I. THE STATE GOVERNMENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62

II. THE FEDERAL GOVERNMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64

A. The Federal Government’s Role . . . . . . . . . . . . . . . . . . . . . . 65

B. The Federal Government’s Powers . . . . . . . . . . . . . . . . . . . . 67

1. Federal Powers Available for Pandemic Response . . . . . 68

2. Assessing the Trump Administration’s Assertions of

Federal Power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75

III. THE GOVERNMENT’S FEDERAL COVID-19 RESPONSE . . . . . . . . . . . . . . . . . 77

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82

INTRODUCTION

In the early days of the COVID-19 pandemic, President Trump considered

imposing a “quarantine” on parts of New York, New Jersey, and Connecticut.

1

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.”

2

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.”

3

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.”

4

Even the country’s

most pro-executive-power legal scholars rejected these statements,

5

with Governor

* Associate Professor of Law, University of Houston Law Center. © 2020, Emily Berman.

1. See Victoria Bekiempis & Richard Luscombe, Cuomo and Trump Clash Over Talk of New York

‘Quarantine,’ THE GUARDIAN (Mar. 28, 2020, 9:27 PM), https://perma.cc/F53C-YUJW.

2. Id.

3. See Meagan Flynn & Allyson Chiu, Trump Says His ‘Authority is Total.’ Constitutional Experts

Have ‘No Idea’ Where He Got That., WASH. POST (Apr. 14, 2020, 6:36 AM), https://perma.cc/VDV2-

QYMB.

4. Id.

5. See Charlie Savage, Trump’s Claim of Total Authority in Crisis Is Rejected Across Ideological

Lines, N.Y. TIMES (Apr. 14, 2020), https://perma.cc/D7JT-TV9T.

61

Cuomo once again providing the most quotable response: “We don’t have a king

in this country.”

6

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 coro-

navirus. Perhaps unsurprisingly, the reality is more complicated than either state-

ments 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 pol-

icy guidance, more material resources, more national coordination. It thus appears

that President Trump has been quick to claim power rhetorically—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 dis-

tinct 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 under-

mined the states’ ability to mount an effective response.

I. THE STATE GOVERNMENTS

As Ed Richards’ contribution to this special issue shows, under our federal con-

stitutional system, the states enjoy inherent police power to regulate in the service

of the public health, safety, and welfare of their people.

8

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 respon-

sibility for addressing domestic health emergencies rests with states and

6. Id.

7. See Lisa Lerer & Kenneth P. Vogel, Trump Administration Signals Support for Allies’ Fight

Against Virus Orders, N.Y. TIMES (Apr. 29, 2020), https://perma.cc/3PVF-DKAR.

8. Edward P. Richards, A Historical Review of the State Police Powers and Their Relevance to the

COVID-19 Pandemic of 2020, infra.

62 JOURNAL OF NATIONAL SECURITY LAW & POLICY [Vol. 11:61