What Stops One Branch Of Government From Being To Powerful – Americans have long been proud of our federalism, the way we divide governing power between the states and the national government. As former Supreme Court Justice Anthony Kennedy explained, the framers of the US Constitution “split the atom of sovereignty” and created “two political faculties, one state and one federal, each protected from the interference of the other.” In theory, this political invention serves to preserve liberty while bringing government closer to the people. It allows red states to make laws as they wish and blue states to do so. But in today’s political and legal environment, our federalism has become lethal. Instead of allowing the branches of government best able to address health problems to do so, federalism fuels partisan litigation and thwarts interstate cooperation. As a result, both states and the federal government are increasingly unable to address threats to the nation’s health, even as those threats become increasingly complex and dangerous.
This is not the first time our federalism has harmed health. Despite its many advantages, from the founding of the Constitution to the Civil War, federalism was used to support slavery. Even after the Civil War and its repeal, it perpetuated racial oppression, providing justification and legal protection for state laws that enforced segregation and enforced racial discrimination. In this way, federalism helped seed and maintain racial health disparities that persist to this day.
What Stops One Branch Of Government From Being To Powerful
Despite this murky background, for most of U.S. history, federalism also ensured that the units of government most capable of solving health problems—the states—had the legal authority to do so. When few people traveled and most goods were locally produced, states (and their cities) were in the best position to respond to disease outbreaks. States and localities could and did enforce quarantines, license doctors, and implement various other measures designed to protect public health. All of these actions were based on so-called state police powers, the sovereign powers that states retained when they joined the federal union. For the most part, courts have rejected such powers, leaving states with broad powers over public health. Indeed, courts have repeatedly emphasized the centrality of public health to states’ police powers.
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However, the federal government has no police power. Its powers are limited to the areas specifically specified in the constitution. Health is not one of those areas. Nevertheless, the federal government has long exercised its power to regulate international and interstate commerce and to impose taxes and fees for the general welfare, the protection of health. For example, in 1798, Congress passed an act to provide relief to the sick and disabled, which led to the establishment of naval hospitals along navigable waters. In 1848, Congress passed the Narcotics Importation Act, which mandated the inspection of the US Customs Service to block the importation of counterfeit drugs.
As the economy became more integrated and travel became faster and more frequent, health threats were increasingly recognized as national in scope. In turn, the federal government’s involvement in health care expanded. In 1889, Congress created the United States Public Health Service. In 1906, he passed the Pure Food and Drug Act, which led to the creation of the Food and Drug Administration. In 1965, Congress created Medicare and Medicaid. The Environmental Protection Agency was created in 1970. A year later, the Occupational Safety and Health Administration was born. Today, the federal government’s role in health policy is extensive.
Many federal health care programs rely on what is commonly called “cooperative federalism.” The federal government sets minimum standards and pays much of the cost. In return, states, federal territories, and tribal jurisdictions follow federal guidelines, do much of the work on the ground, and sometimes set standards that are even more protective of health than those set by the federal government.
Still, many Americans cling to the nostalgic notion that health care belongs primarily to states, territories, and tribal jurisdictions. In the early months of the corona epidemic, then-President Trump expressed this view, telling governors that they would decide “on their own.” That’s a view conservative Supreme Court justices seemed to share last June when they limited the EPA’s ability to address climate change and overturned Roe v. Wade.
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A photo of married Liesel Herrera during a July demonstration in Santa Monica, California, to overturn the Supreme Court ruling
There are times when it makes sense to leave health policy to the states. Some health threats are truly local. Consider an unsanitary restaurant. It probably doesn’t require a nationwide solution. By leaving restaurant inspections to state and local governments, the public is more likely to be protected from unsafe meals. Additionally, state and local governments are in a much better position than the federal government to provide many health services on the ground, from STD clinics to TB testing. The day-to-day work of public health departments is largely dependent on their location in local communities and their relationships with local communities.
States, territories, and tribal government can also serve as “laboratories of democracy,” to borrow Justice Louis Brandeis’s term. They can develop innovative health policies that other governments and even the federal government can copy. For example, the Massachusetts Health Care Reform Act of 2006 served as the model for the federal Affordable Care Act. States and cities also led the way in tobacco control, banning youth access and indoor smoking years before the federal government made serious efforts to reduce cigarette consumption.
Policy differences between jurisdictions can also serve as a kind of natural experiment from which policymakers can learn which laws work and which don’t. Researchers can study how motor vehicle safety laws differ across states, or how different childhood immunization laws correlate with vehicle accidents and vaccines, respectively. Much of what we know about the effectiveness of health policies comes from just such studies.
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Unfortunately, the cry for “states’ rights” today often ends up endangering health, just as it did by perpetuating the systematic racial oppression that underlies so much of today’s health inequity. To see how federalism threatens health, consider the early days of the COVID pandemic. Although states could and did implement many measures that slowed the coronavirus in 2020, they could not prevent the bacterium from being transmitted across state lines. A lax policy in one country has always led to an increase in the number of cases in other countries. Different approaches by different country governments in 2020 and 2021 also clouded the public health message. (To be fair, the bad news from the federal government didn’t help.) For example, in the summer and fall of 2020, it was hard to tell whether masking was helpful when only some states required it. Worse, policy differences among states have created something of a race to the bottom, in which economic competition from states with looser regulations has prompted other states to roll back their health mandates. (Interestingly, countries that maintained restrictions longer had better health outcomes but faced worse economic conditions.)
Passengers at Miami International Airport in Miami, Florida, in February 2021. President Joe Biden signed an executive order a week before mandating the wearing of masks on public transportation to prevent the spread of COVID-19. Credit: Joe Riddle/Getty Images
The need for a national response was also evident during the monkeypox epidemic. One of the main obstacles to containing the disease last summer was the lack of reliable data. But because of constitutional restrictions and the regulations that have grown up around them, the federal government depends on states, territories and tribal governments to collect and share data on disease outbreaks and for much of the front-line response, as Health and Human Services Secretary Xavier Becerra noted in excusing the federal government’s inability to control the outbreak. Although Basra’s statement was largely self-serving, he was correct in stating that the federal government’s ability to respond to an outbreak depends largely on the cooperation of states, territories and tribal authorities.
This ineffectiveness has been exacerbated by more than two decades of 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 could not order state officials to conduct background checks before selling guns. This decision explains why the federal government cannot require states to open or close schools during the pandemic or require states to enforce vaccination requirements. While the federal government can use its spending power to force states to comply with its policy goals, states can reject the money and refuse to cooperate.
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The Supreme Court emphasized this point by emphasizing states’ rights in its 2012 decision in 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 remain uninsured. The goal of preserving states’ primary role in health was also used as a crucial rule in the 2021 Supreme Court decision that overturned the CDC’s evacuation freeze.
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