As an Adjunct Professor at Trinity University, every year for 24 years, I have started my graduate course “Legal Aspects of Health Care Administration” with an hour lecture on state versus federal jurisdiction over health care in America.
These days that academic exercise doesn’t feel rudimentary anymore.
The debate over “Who is in Control?” for decisions regarding COVID-19 is raging in Washington D.C. as well as in every state capital.
On Monday, President Trump declared he has “total authority” to reopen the country’s economy, Governors are saying it isn’t his call to make.
I thought it might be helpful to review some basic government principles and laws to bring clarity to the arguments currently dominating the news cycle.
The States and the Police Powers
The most fundamental obligation of any government is to protect the Health, Safety, Welfare, and Morals of its people. These four central concerns are why human beings invented “government” long before memory. It is the reason any government exists- from the Aztecs to Alabama, the Congo to California, Macedonia to Massachusetts.
This duty- protecting the Health, Safety, Welfare, and Morals of a population- is known as “The Police Powers.” It is a big deal. [Please don’t confuse “Police” with law enforcement or any modern usage of the word- the “Police Powers” refer to the government in a protector role.]
When we first won our freedom from England, we established The Articles of Confederation, which had a nominal central government (such as no right to tax the states and no President or Executive Branch). The first years of our country’s existence proved that a loose association of sovereign states was not viable- It didn’t work out very well.
The need for a robust, more centralized power is what led to the creation of the U.S. Constitution. Having newly won freedom from the King, however, the original states were not interested in relinquishing their sovereignty entirely.
As a result, what we have in America is Federalism– we live in a system where we are all controlled by two separate sovereign governments- our state and D.C.
In the U.S. Constitution, the States granted specific, enumerated powers to the Federal government to unify control– particularly in the areas the Articles of Confederation had failed (such as running a military, the coinage of money, and foreign affairs).
But none of the originating states (or any state formed since 1788) surrendered their rights under the Police Powers; the states never lost the primary authority of government.
In case there was ever any question about the fundamental role of the States, there is the Tenth Amendment (added to the Constitution in 1791):
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
With this as the backdrop, it makes perfect sense that every state has its own laws about public health, patient rights, reporting of communicable diseases, the state-specific licensing of doctors, nurses, and all other health care practitioners, and a panoply of other health care related statutes and regulations.
It is also in keeping with the delegation of powers in our Constitution that in an effort to “flatten the curve” of COVID-19, 46 state Governors enacted policies to close nonessential businesses (April 3rd statistic). It also helps to remember why Governors across the country, such as New York State’s Governor Cuomo, are delivering daily press updates on the status of the virus in their jurisdiction.
As sovereign entities, states are also working cooperatively in the fight against the Coronavirus. Examples include 6 New England states determining how to coordinate re-opening their economies, or Governor Brown of Oregon shipping 140 ventilators to Governor Cuomo on April 4th (an act Vice President Pence praised as “in the very highest American tradition of loving your neighbor.” [quote])
In short, the Coronavirus crisis is fundamentally related to the health, safety, welfare, and even morals (such as deciding who will get ventilators if the supply is not adequate) of every state.
From this perspective, dealing with this pandemic is a states’ rights issue.
The Federal Government and Health Care
It would be easy to assume that the Federal Government oversees health care.
Every time we see a physician or go to the hospital, we sign a Patient Privacy form; most of us know that there is a Federal law that requires our Emergency Room to see us regardless of our ability to pay. Those laws (HIPAA and EMTALA) are two of the most visible examples of many Federal statutes that control aspects of our medical care.
How is that possible when the Police Powers remain with the states?
The answer is because Congress’s health care laws include the caveat that obedience is mandatory for any provider accepting federal funds. Given that the Federal Government is the largest purchaser of medical care in the country, that caveat becomes the rule- not an exception. Few providers- particularly not hospitals- can survive without Medicare, Medicaid, CHIPs, or Tricare reimbursement.
To keep this very simple, the “jurisdiction” the Federal Government has over medical providers is most similar to the “jurisdiction” we as parents have over our school-age children. “Want your allowance? Clean your room!”
Just as the Federal government limited the speed-limit on all inter-state roads to 55 mph between 1974 and 1995 (based on every state accepting federal highway money), DC might also control states in the arena of health care through the Federal purse.
I say “might” because the best example is the Affordable Care Act [“Obamacare”], which required all states to expand Medicaid under a similar “you take our money- you play by our rules” quid pro quo. The United States Supreme Court rejected that methodology as crossing the line from “enticement to coercive” in NFIB v. Sebelius in 2012, which is why the 37 states (including the District of Columbia) that expanded Medicaid under the ACA had to do so individually under their own state rules. [For more on the implications of the Sebelius decision on state versus federal control of health care, go here.]
Under normal conditions, therefore, the Federal Government may be heavily involved in health care, but always dancing around the Tenth Amendment and in recognition of a State’s Police Powers.
Whenever the question of authority gets close (such as the early –and on-going struggle– between the Federal Government and State laws regarding Medical Marijuana), the state will predictably win.
[There are certainly areas where joint Federal and State jurisdiction of health-related issues arise: air, water, and food quality, workers’ safety, and industrial-waste disposal are just a few examples. Please understand I am trying to make our Constitutional system (relatively!) concise and accessible for the purposes of this Coronavirus discussion]
Federal Powers in an Emergency
There are times when resources available from the Federal government are necessary for a state to cope with a disaster– such as happened along the East Coast during Hurricane Sandy, fighting the California wildfires in 2018, or flooding along the Mississippi River in Louisiana last year.
Presidential Disaster Declarations begin with a request from a Governor (remember that includes US Territories such as Puerto Rico and Guam as well).
The Stafford Act: Disaster declarations fall under the Stafford Act. Title IV of the Stafford Disaster Relief and Emergency Assistance Act*(1988) requires that a Governor determine that a disaster is of sufficient severity that the state and local governments (counties, cities, etc.) cannot deal with the crisis on their own. The Governor then requests assistance from the President, which triggers financial and physical aid.
For the first time in history, all 50 States are under a Disaster Declaration for the COVID-19 crisis, plus The U.S. Virgin Islands, the Northern Mariana Islands, Washington, D.C., Guam, and Puerto Rico. The first state to request was New York on March 20th, Wyoming, the last on April 11th.
Disaster aid under the Stafford Act is primarily through FEMA. The breadth of FEMA authority and resources is beyond the scope of this Fontenotes; the agency introduces itself here; more on the Statutory authority of FEMA here.
The Stafford Act also allows a President to deploy the US Military upon the request of a Governor- but for utilization limited in both duration and scope (emergency work, not law enforcement.)
The boots on the ground we commonly see responding to disasters are members of the National Guard, which a Governor can call up directly (Governors serve as the Commander-in-Chief for the Guard in his/her respective state or territory). Governors across the country mobilized more than 11,400 National Guard troops as of March 18th.
[*The Stafford Act is an amended version of a 1974 law, and amendments to the Stafford Act are in the Disaster Recovery Reform Act of 2018 and are not relevant to this conversation.]
The Defense Production Act: The Defense Production Act is another Federal law (Truman Era), allowing Federal Government intervention in local emergencies. The law does not allow the government to force a company to make a product- but it is “used extensively to ensure timely performance” from federal contractors. [quote] It has a limited budget as well as scope but was considered (for less than a day) as an avenue to produce more Coronavirus test kits.
Summary: This is not an exhaustive list of relevant Federal laws but should be enough excruciating detail for right now!
My point is this- Federal response to most disasters remains under the control of the states.
Did President Trump Assume Power by Declaring a “Major Disaster” and “National Emergency?”
The Stafford Act (revisited): As already discussed, a Governor’s request for an “emergency” declaration triggers Federal assistance under the Stafford Act. All 50 states (as well as territories) initiated their current disaster relief programs in this ask and answer format.
A President can also declare a “Major Disaster” under the Stafford Act if he/she believes a natural catastrophe (many possible types of disasters are listed) “has caused damage of such severity that it is beyond the combined capabilities of state and local governments to respond.” Enhanced Federal interventions are allowed in a “Major Disaster,” but these declarations are still based on requests by the affected states.
President Trump named the Stafford Act in declaring the Coronavirus a “Major Disaster” on March 13th, adding “I have the right to do a lot of things that people don’t even know about.” [quote] It is not clear if he was referring to the enhanced powers that designation evokes, but his language raised concern from some corners of the public.
However, President Trump never appointed a federal coordinating officer in the affected areas, formed emergency support teams staffed with federal personnel, or established reimbursement processes for regional support teams as required under the enhanced powers of a “Major Disaster” declaration, so any claim that he assumed leadership for the Coronavirus response would be unwarranted.
The National Emergencies Act: Trump also relied on the 1976 National Emergencies Act [NEA] in his March 13th COVID-19 announcement. This law has fewer definitions of an “emergency” and provides even more expanded powers to a President.
This NEA was the topic of heated debate when used to divert funding for the southern border wall by President Trump, and has raised concern in the context of the Coronavirus Emergency declaration as well.
However, following the March 13th declaration under both laws, the Trump Administration announced “Guidelines” from the CDC to avoid the Coronavirus- not dictates.
Summary: “I have the right to do a lot of things” aside, the Major Disaster and National Emergency declaration by President Trump on March 13th did not amount to assuming Federal control of the crisis and certainly did not lead to advanced Federal power at the expense of the states.
Conclusion: Where Does All This Leave Us?
Concerns of Federal overreach may return as the COVID-19 Crisis continues for the next weeks and months, but that is not the issue before us today.
Indeed, the complaints from the Governors include the lack of centralized purchasing of needed equipment, and that there is not enough Federal coordination, not too much.
Today’s debate doesn’t even involve responding to COVID-19. It is about declaring the Coronavirus Crisis over, and conflicting claims between President Trump and Governors on who has that authority.
This crisis has changed every element of our lives in America, to say nothing of the rest of the world. Now it is raising fundamental questions about our Constitutional framework and the balance of powers in our governments.
The best minds in government and law are about to weigh in on the most important (and interesting) constitutional debate we have witnessed (certainly in my career).
But if you want to know, at the end of the day, my prediction for the outcome?
In the arena of health law, I never bet against the States.
Want to Know More?
1. Are you wondering where you fit in this discussion as an individual? Do you want to know where the U.S. Constitution protects YOU against both the Federal and State governments? The Ninth Amendment is where you want to look. Although it’s interpreted many ways, it is the Amendment that most reflects a global view of Liberty. I am a big fan of The Constitution for Dummies Series with Hip Hughes (2013). Here is his explanation of the Ninth (5:24). I like that he explains the interpretations of the Ninth from Progressive, Conservative, and Libertarian viewpoints without judgment. I hope you will too. If you enjoy it- here he is on the Tenth Amendment.
2. Although the Police Powers is the big reason I think the Governors will win in their current stand-off with President Trump, lawsuits about what a state can or can’t do under the Police Powers usually arise when an individual doesn’t want to get vaccinated, be quarantined, or follow other state public health rules. We will get back to this in my next Fontenotes (Spoiler Alert! The State Always Wins!), but I explained the difference between isolation, quarantine, containment areas, and exile in Fontenotes Number 90.