The Constitution reserves police powers for the states. The president will have to make do with persuasion.
President Donald Trump is appointing a new “Opening Our Country” task force today to jumpstart the economy by early May. But the White House cannot succeed unless it persuades governors to cooperate. By dividing power, the Constitution creates resiliency in emergencies, but also demands cooperation between the federal and state government.
Responses to the COVID-19 pandemic have rendered the trade-offs inherent in public policy only more acute. Even though the coronavirus has killed more than 23,000 Americans and sickened a half-million more, strict lockdowns have held deaths significantly below worst-case projections. On the cost side of the ledger, however, just one month of shelter-in-place policies has thrown more than 16 million people out of work and destroyed hundreds of billions of dollars in economic activity.
Our elected leaders confront the difficult decision on when to start lifting the lockdowns, even at the risk of a faster spread of COVID-19. Presiding Trump claims that he has the right to determine when businesses open their doors, employees return to work, and consumers shop again. “For the purpose of creating conflict and confusion, some in the Fake News Media are saying that it is the Governors decision to open up the states, not that of the President of the United States & the Federal Government,” he tweeted earlier today. “Let it be fully understood that this is incorrect . . . It is the decision of the President, and for many good reasons.”
But the federal government does not have that power. The Constitution’s grant of limited, enumerated powers to the national government does not include the right to regulate either public health or all business in the land. Congress enjoys the authority to “regulate Commerce with foreign Nations, and among the several States.” This gives Washington, D.C. an important, yet supporting, role in confronting the pandemic. It can bar those who might be infected from entering the United States or traveling across interstate borders, reduce air and road traffic, and even isolate whole states.
But our federal system reserves the leading role over public health to state governors. States possess the “police power” to regulate virtually all activity within their borders. As the Supreme Court has recognized, safeguarding public health and safety presents the most compelling use of state power. Only the states can impose quarantines, close institutions and businesses, and limit intra-state travel. Democratic governors Gavin Newsom in California, Andrew Cuomo in New York, and J.B. Pritzker Illinois imposed their states’ lockdowns, and only they will decide when the draconian policies will end.
Congress can control commerce that crosses state lines, and even prohibit wholly intrastate activity that affects the national markets. It cannot, however, force individuals and businesses to engage in business in the first place. In NFIB v. Sibelius (2012), the Roberts Court blessed this limit on federal power when it held that the Affordable Care Act could not require every American to buy health insurance. “The power to regulate commerce presupposes the existence of commercial activity to be regulated,” Chief Justice John Roberts wrote for a majority of five conservative Justices. “If the power to ‘regulate’ something included the power to create it, many of the provisions in the Constitution would be superfluous.” Obamacare only survived because the Chief Justice joined the four liberal Justices to hold that the government could impose a tax on people who refused to buy insurance.
When the federal and state governments have overlapping, competing powers, such as over economics or crime, they further must rely on their own resources for enforcement — which makes any White House command virtually impossible to carry out. In another set of federalism cases, these decided by the Rehnquist Court, a conservative majority forbade Congress from “commandeering” state officials into enforcing federal commands. If the federal government were to decide to re-open all businesses, it could call upon only on its own law enforcement officials to execute the policy. Washington simply does not have enough resources to manage such a vast task; the FBI, the closest we have to a national police force, has fewer agents than the NYPD has sworn officers.
Our unique federal system does not mean that Trump remains utterly powerless to bring the nation out of this unprecedented economic contraction. But he will have to rely less on command and more on persuasion. Congress more often gets its way in areas outside its direct control, such as in education, health care, and welfare, by paying states to adopt a uniform national policy. Article I of the Constitution provides that Congress has the power to tax and spend to “provide for the common Defence and general Welfare of the United States.” The spending power already has provided the Trump administration with its most effective weapons in fighting the pandemic: It can provide critical supplies and medical equipment, transfer funds to states and cities or hospitals, and fund research on a vaccine and cure.
Trump could use the money appropriated by Congress to respond to the pandemic as a reward for states that end their lockdowns in May. He could send disaster relief funds, made available by the Stafford Act in time of emergency, or allocate more medical equipment and protection supplies to these states, perhaps on the ground that they risk greater harm from the virus in exchange for opening up.
But such enticements likely will not move governors in the hardest hit areas to re-open their economies early. Cuomo and Newsom so far have won widespread popular approval for their tough responses to the pandemic, and they will have strong incentive to continue their risk-averse policies. Democratic governors will remain conscious that their party will not reward cooperation with Trump, whom it tried to impeach and remove from office just two months ago. Nevertheless, Trump will have to persuade them that the gains in returning millions to work and re-opening businesses outweigh the harms of ending social distancing. Rather than his regular tactics of cajoling, blustering, threatening, and bargaining, Trump will have to convince them with facts and medical science — not his strongest suit. But his political fate, and the health of the American economy, will depend on it.