Americans have always been proud of our federal government, the way we divide government power between the states and the national government. As former Supreme Court Justice Anthony Kennedy famously explained, the framers of the U.S. Constitution they “split the atom of sovereignty” creating “two political powers, one state and one government, each protected from attack by the other.” In theory, this political innovation serves to preserve freedom while bringing government closer to the people. It allows red states to make laws that please them, and blue states to do the same. But in today’s public health, political and legal environment, our federal government has become deadly. Instead of allowing the parts of government that can best deal with health problems to do so, federalism invites partisan litigation and hinders cooperation between states. As a result, states and the federal government remain unable to confront national health threats, even as those threats become more complex and dangerous.
This is not the first time that our society has harmed health. Despite its many benefits, from the creation of the Constitution until the Civil War, federalism served to support slavery. Even after the Civil War and abolition, it continued racial oppression, providing justification and legal protection for state laws that enforced segregation and imposed racial discrimination. In doing so, federalism helped spread and maintain racial inequalities in health that continue to this day.
Despite those dire circumstances, for much of U.S. history, federalism reaffirmed that the only governmental units capable of solving health problems—the states—had the legal authority to do so. . When fewer people traveled and more goods were produced in the area, countries (and their cities and towns) were in a better position to respond to disease outbreaks. States and localities were able to quarantine people, provide doctors and institute a series of other measures designed to protect public health. All of these actions were based on the power of the so-called police states, the sovereign power that the states retained when they joined the federation. Often, courts deferred to such powers, leaving the states with broad powers over public life. Indeed, courts have repeatedly emphasized the importance of public health to states’ police powers.
The federal government, by contrast, has no police powers. Its authority is limited to areas specifically mentioned in the Constitution. Health is not one of those areas. However, the federal government has always used its power to regulate international and interstate commerce, and to tax and spend money for the general welfare, for health protection. For example, in 1798 Congress enacted the Sick and Crippled Seaman’s Relief Act, which led to the establishment of maritime hospitals near navigable waters. In 1848 Congress passed the Narcotics Export Act, which required U.S. inspection. Customs Service to prevent the importation of contaminated drugs.
As the economy continued to integrate and travel became faster and more frequent, health threats became known nationwide. On the other hand, the federal government’s commitment to health increased. In 1889, Congress created the United States Public Health Service. In 1906 it passed the Pure Food and Drug Act, leading to the creation of the Food and Drug Administration. In 1965 Congress created Medicare and Medicaid. The Environmental Protection Agency was established in 1970. A year later, the Occupational Safety and Health Administration came into existence. Today the role of the federal government in health policy is widespread.
Most federal health programs are based on what is commonly known as “cooperative federalism.” The federal government sets the minimum standards and pays most of the costs. In exchange, states, federal territories, and tribal territories follow federal guidelines, do more ground work and, in some cases, set more health-protective standards than those set by the federal government. .
However, many Americans cling to the nostalgic notion that health care is the preserve of states, territories, and clans. In the early months of the COVID pandemic, President Trump made that comment, telling governors they were going to call their “guns.” That’s the view the Supreme Court’s environmental justices seemed to share last June when they limited the EPA’s powers to deal with climate change and overturned Roe v. Wade.
There are times when it makes sense to leave health policy to the states. Some health threats are truly local. Think of an unsanitary restaurant. It probably doesn’t need a nationwide solution. By leaving the inspection of restaurants to counties and local governments, the public has the opportunity to be protected against unsafe food. Similarly, states and local governments are in a better position than the federal government to provide many health services, from sexually transmitted disease clinics to tuberculosis testing. The day-to-day work of public health departments is highly dependent on their placement and relationships with the local community.
States, territories and tribal governments can also serve as “laboratories of democracy,” to borrow the phrase of Justice Louis Brandeis. They can create new health policies that other governments and even the federal government can copy. For example, Massachusetts’ 2006 health care reform law served as a model for the federal Affordable Care Act. States and cities have also taken the lead in tobacco control, restricting youth access and indoor smoking years before the federal government made significant efforts to reduce cigarette use.
Policy differences between regions can also serve as a kind of natural experiment, from which policymakers can learn what rules work and what doesn’t. Researchers can look at how different state motor vehicle safety laws or different childhood vaccination laws are related to motor vehicle accidents and vaccinations, respectively. Much of what we know about the effectiveness of health policies comes from such studies.
Unfortunately, the cry for “states’ rights” today often ends up endangering health, just as it has done by perpetuating the systematic racial oppression that causes today’s health inequities. To see how federalism threatens health, think back to the early days of the COVID pandemic. Although countries were able to implement many measures to slow down the coronavirus in 2020, they could not prevent the transmission of the virus throughout the country. Another country’s illegal laws led to an increase in cases in other countries. Different policies of different governments in 2020 and 2021 also undermined the public health message. (Frankly, misinformation from the federal government didn’t help.) For example, it was hard to tell in the summer and fall of 2020 if masking was beneficial when some states required it. . Worse, policy differences among countries have created a kind of race to the bottom where economic competition from countries with lax regulations has forced other countries to repeal their health mandates. . (Interestingly, it says that it has maintained restrictions for a long time and has had good health outcomes, but it is facing bad economic conditions).
The need for a national response was also evident during the monkeypox epidemic. One of the biggest obstacles to experiencing this disease last summer was the lack of reliable data. But because of constitutional limitations and the practices that have grown up around them, the federal government is dependent on state, local and tribal authorities to collect and share data on disease outbreaks, as well as the scope of the response. first, as Life Secretary. and Human Services Xavier Becerra noted in his defense of the federal government’s inability to stay on top of the growing epidemic. Although Becerra’s statement was very self-serving, he was right when he said that the federal government’s ability to respond to this epidemic depends heavily on the cooperation of states, localities and authorities.
This inefficiency has been reinforced by more than two dozen Supreme Court decisions that, in the name of states’ rights, have limited the federal government’s ability to protect public health. For example, in 1997, the Supreme Court ruled that the federal government cannot order federal officials to conduct investigations prior to the sale of firearms. That decision explains why the federal government could not require states to open or close schools during a pandemic, or require states to enforce vaccination requirements. While the government can use its spending power to persuade countries to agree to its policy goals, countries can refuse money and refuse to cooperate.
The Supreme Court emphasized that point, while emphasizing states’ rights in its 2012 decision NFIB v. Sebelius, which blocked the federal government’s efforts through the Affordable Care Act to expand Medicaid. The result: More than two million Americans were left uninsured. The goal of maintaining the government’s primary role over health also played a key role in the Supreme Court’s 2021 ruling striking a halt to the CDC’s layoffs, a policy the agency had planned to block. people lose their homes during the epidemic. The Supreme Court later relied on that case to block the Occupational Safety and Health Administration’s rule that mandates that most employers require their workers to be vaccinated or wear a mask and be screened. A few months later, the Court cited those decisions in contempt of the EPA’s Clean Power Plan. Lower courts have relied on these cases to mandate federal COVID vaccine mandates for government contractors, government employees and even Head Start child care programs.
The implications of the Court’s decisions are magnified in our current dysfunctional and often dysfunctional political environment where Congress and states choose not to cooperate with the federal government, or even other states, regardless of the health consequences. beauty. Indeed, the various structural boundaries that the Court has set to protect states’ rights have become a tool that missionaries use to attack the policies of government leaders from the opposing party. Thus, we have a growing trend of red states rushing to court to challenge the policies of Democratic presidents, and blue states bringing lawsuits against Republican presidents. How else can you explain the fact that 22 states have brought lawsuits challenging the vaccination mandate for government contractors? With the approval of the courts, if not invitation, the federal government has become another weapon for party fighters. Therefore, health policies are weak and social welfare is reduced.
The negative impact of our polarized environment has also encouraged wars between countries. In the early days of the outbreak, several countries threatened to ban travel from foreign nationals. The states are once again embroiled in a battle to buy essential goods during the year 2020. Such domestic conflict has only increased since the Supreme Court issued its decision in the case of Dobbs v. Jackson Women’s Health Center, overturning Roe v. Wade. In theory, the decision of the Supreme Court should allow each country to go its own way. But this live-and-let attitude may not apply to an issue like abortion (just as it didn’t with slavery or Jim Crow). Predictably, in the months since the Dobbs decision, we’ve seen the kind of state wars we haven’t seen since the Civil War, as pro-abortion states have threatened to ban abortion. interstate travel and criminalizing procedures performed in other states, when states allow abortion. rush to pass laws that protect their doctors from being prosecuted abroad. Meanwhile, the federal government and states are also at loggerheads over whether federal protections for emergency department patients override state abortion restrictions. And advocates on both sides of the issue want a federal law that fixes their position. In short, despite the frequent paeans to federalism, neither side is willing to accept the variety of approaches that federalism should include.
For more than a century, our coalition has enabled the parts of government that were then best equipped to respond to life’s threats to do so. Even today, federal government should not kill, as the experience of other united nations, such as Germany and Canada, shows. Both states give states or provinces significant power over health. But both countries were able to withstand the COVID epidemic more successfully than the US and the citizens of both countries enjoy a longer life expectancy than Americans.
Federalism, of course, is not the only reason why the US performs poorly compared to other wealthy nations on many different measures of health. But in today’s increasingly political environment, legal doctrines that once supported states’ ability to protect the lives of their citizens limit the ability of state and local governments to do so. Unless the courts stop allowing this political weapon of federalism, our federalism will remain uncooperative. And killing.
This is an opinion and analysis article, and the views expressed by the author or authors are not necessarily those of Scientific American.
ABOUT THE AUTHOR(S)
Wendy E. Parmet is the faculty co-director of Northeastern University’s Center for Policy and Law.
