How This Pandemic Proves the Wisdom of the Founders
President Trump raised eyebrows Tuesday when, in answer to a question about whether he could order the revocation of state “lockdowns,” he declared that “the federal government has absolute power.” In reality, no part of the federal government has “absolute” power—or “plenary” power, as Vice President Pence asserted at the same press conference—at any time, even during emergencies. The reason our state and federal constitutions were written was to make that point clear. Instead, our federalist system puts states in the driver’s seat at times like this—and wisely so.
The Constitution’s authors were familiar with epidemics; they were a regular fact of life in the 1780s. And the authorities primarily responsible for taking action back then were state governments, which are closer to the people, more knowledgeable about local conditions, and better able to compare the costs and benefits of their actions. The Constitution they wrote incorporated the preexisting practice of state autonomy on such matters, giving federal officials power over things like matters of foreign relations, but leaving power over public health primarily with the states.
Decentralized decision-making is wise because America is so extremely diverse. The population density in New York City is more than 27,000 people per square mile—10 times the population density of Albuquerque. North Dakota has about four hospital beds per 1,000 people—twice as many as Maryland. The average temperature in Phoenix in April is 85 degrees. In Anchorage, it’s 45. The median age in Utah is 31. In Maine, it’s 45. There’s no sense in using a one-size-fits-all approach for these different places, whether it be to “lock down” or to open up.
And it’s state laws that matter the most, anyway. However much the federal government may have grown in the 20th century, most of the laws relevant to this crisis are enacted by state legislatures, not Congress. The certificate-of-need laws that prevent the construction of hospitals, for example, are creatures of state law. Laws forbidding telemedicine are, too. So are licensing laws that make it harder for people from one state to earn a living in another. Fortunately, many of these laws have now been suspended in light of the epidemic—again, a decision made by states, not by the feds.