When the Trump administration lobbied this week for a rapid reopening of the U.S. economy, a number of governors pushed back, saying it was too soon to relax social distancing or other restrictions meant to slow the spread of COVID-19.
The tension highlighted a fundamental challenge of fighting the pandemic: Who's in charge? We asked three RAND researchers—two lawyers and a physician—to discuss the legal and practical implications of federal, state, and local authorities pursuing different agendas.
- Phillip Carter is director of the Personnel & Resources Program within the Homeland Security Operational Analysis Center at RAND, as well as an adjunct professor of law at Georgetown University.
- Courtney Gidengil, director of RAND's Boston office, is a senior physician policy researcher at RAND and a specialist in infectious diseases at Boston Children's Hospital.
- Rebecca Haffajee is a health policy researcher and lawyer with expertise in public health law.
The question of U.S. versus state government jurisdiction has been contentious this week. Who should be taking the lead?
Rebecca Haffajee: It needs to be a combination. The federal government and the states have different proficiencies and different powers they can bring to bear that are relevant to this crisis.
The federal government should be taking a lead in terms of any interstate travel, or virus-spread risks, and they do have power to do that. The CDC has quarantine power, for example. Also, in terms of coordinating supplies, personal protective equipment, ventilators, those sorts of things, that's a federal jurisdictional area, so we don't have states competing.
In terms of economic stimulus, as we've seen, that's a federal response because states don't have the funds to be dealing with this.
Where it gets a little more tricky—where we have seen more states' power—is the stay-at-home orders and business closures. States have this jurisdiction and can be laboratories of experimentation for what works and what doesn't. They also arguably have more legitimacy to act here—both using public health emergency powers and police powers.
The federal government and the states have different proficiencies and different powers they can bring to bear that are relevant to this crisis.
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You used the word legitimacy. Phil, maybe you could weigh in on who has the top prerogative between the feds and the states?
Phillip Carter: I'll give you the the classic legal answer—it depends. As Rebecca pointed out, the Constitution reserves most of the power in this space for states, and what the federal government can do is limited to interstate commerce or international things like what goods, supplies, and people we admit from overseas.
The challenge here is that a great deal of response infrastructure, intelligence, and public health surveillance resides at the federal level, like the CDC, but actual decisions about whether to open or close reside at the state level.
What we need to see is cooperation between these levels of government, where the intelligence may exist at the national level but it's going to be a state-by-state decision as to when and how to open up schools, businesses, and other parts of society.
Are there areas where we're seeing decent cooperation?
Carter: There's emerging cooperation on things like FEMA funding for state responses and National Guard deployments. There is cooperation around ports of entry, where there's a necessary working relationship between the Coast Guard, Customs & Border Protection, and local law enforcement. There could be better cooperation on the public health side, though, especially between governors and White House.
Does this patchwork approach present any particular advantages or disadvantages?
Haffajee: We've seen quite a variety of state and local responses. The state of Washington saw some of the initial large number of cases, was one of the earliest to enact a stay-at-home order, and has seen somewhat of a downward trajectory, we think in response to those aggressive actions. A vast majority of states now have statewide orders.
But we still have six states that do not have stay-at-home orders: North and South Dakota, Wyoming, Iowa, Utah, and Nebraska. They're deciding to allow residents to have more control over how they act, relying on voluntary compliance with CDC guidelines.
Some of these governors are taking the approach that “we are not New York City, we are going to take a targeted approach.” But now we're seeing some repercussions from that.
In South Dakota, for example, we have a large outbreak in a meat processing plant. Over 450 workers are infected, and we have a lot of sparring between the governor and localities. We have mayors who are asking for stay-at-home orders, and governors saying no.
We have other states like Arizona where there is a statewide stay-at-home order, and it says localities aren't allowed to do more—in other words, the state is preempting localities from doing more even if they want to.
The challenge here is that with other public health issues, or infectious diseases, the speed with which exposure can spread and the harm from exposure may be different. COVID-19 is quite efficient at traveling quickly across country, state, and town lines, and it inflicts a lot of harm.
That makes it really challenging when we have one town reacting one way and right next door another town reacting in another way. There's no way their actions don't affect each other.
It's going to be a state-by-state decision as to when and how to open up schools, businesses, and other parts of society.
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So should the feds should weigh in more?
Haffajee: Maybe, certainly in an evidence-based fashion.
We can see lessons learned from other countries. Taiwan and South Korea have had much more aggressive physical distancing measures and contact tracing. Early evidence suggests these things seem to work when centrally coordinated.
We need to react in real time. So if some jurisdictions are not governing in a way that is consistent with that evidence, and we think it would help, that may be an area for the federal government to step in. The federal government can't order a state to have a stay-at-home order. But they can use other levers to try and encourage that policy.
Courtney Gidengil: Building on what Rebecca said, the virus doesn't respect state lines.
With the example of influenza, often rural communities are more affected later in the season. Once it's there, the big concern is both less access to health care that rural communities tend to have as well as a higher rate of co-morbidities that predispose them to COVID-19. So there's a tension between balancing the autonomy of states and locals to decide how to handle an infection, versus the risk posed to wider regions.
Are the states that have been less aggressive likely to need more support from the federal government, ultimately?
Haffajee: I think that's a distinct possibility.
Places like Florida that have been slower to respond are more likely just delayed in terms of their trajectory. They may need more personal protective equipment, more supplies, more help from the government later. Some of those states may need more encouragement to take more aggressive actions so they can move through the peak to get to the other side.
Carter: It's an important question. As a general rule, the federal government can condition funds to encourage good behavior. The classic example is tying highway funds to having a drinking age of 21.
This has become so politicized. There's going to be a great deal of friction between states and the federal government if federal funds, or FEMA funds, get tied up with particular policy preferences of the White House.
If the federal government uses its leverage to do things that are evidence-based, and in accordance with sound advice from the CDC and others, it should work well. But if we begin to see other agendas creep into this, then that will create problems between the states and the federal government.
Haffajee: We need to be careful about how those funds are conditioned.
One factor is that those are congressional powers—not executive fiat. Congress has the power of the purse, the power to regulate commerce, the power to condition its spending, the power to tax. We have elected officials from both parties and all states making those decisions, hopefully in an evidence-based fashion.
In an ideal world I would prefer to see the executive branch using its powers to convince governors to act in a unified fashion based on evidence. Make sure they're making decisions in a coordinated manner, considering other states, ensuring the allocation of resources is being fairly distributed. I'd prefer this rather than having to take draconian measures, like Congress saying, “We won't give you your school money if you don't close schools for this amount of time.”
What about the regional consortia we're seeing form?
Haffajee: We're in the very early stages of seeing these consortia—the Northeast one and one on the West Coast—of governors that are convening to share information and come up with coordinated plans for reopening.
That's a really positive step. They are fairly new, so we don't know their plans yet, but they say they are based on science. They have the best epidemiologists. We'll see.
We will be more effective in our COVID-19 response if we have cooperation across state lines instead of competing for resources, not allowing someone from one state to come to your state, checking license plates. These things are not particularly helpful.
Carter: This has the potential to get sticky, when we start thinking of the resumption of full movement. Are people going to need a bill of clean health—and who issues that? Who allows someone to get on a plane? Is this something TSA will check? The airlines?
All sorts of sticky issues here in terms of legal authority and potential detention authority. Airlines don't typically deal with HIPAA or protected health information, so there's a whole set of issues to be tackled as we think about reopening America.
With so many different approaches, it would seem the federal response will be key.
Gidengil: This is incredibly complex. It will really take a combination of thoughtful strategies. That may involve continued social distancing, staggered returns to work and school, aggressive testing, and contact tracing. The role of proving immunity is still up in the air.
There are a lot of unanswered questions. From a clinical and scientific point of view, experts have long looked to CDC as the central authority as really a brain trust, a collection of experts who've spent their lives trying to understand these types of diseases.
What do you mean by a brain trust?
Gidengil: The idea is that expertise is easily identified in a central place in a way that can be pushed out to all communities across the country, with guidelines that are consistent with evidence. That was quite helpful, for example, with Zika, from CDC. And NETEC, a network that was set up for Ebola, with expertise concentrated in New York at Bellevue, in Atlanta at Emory, and in Nebraska.
Those experts were able to share protocols about how to treat patients. They set up a central institutional review board, so that research could be instituted quickly and in real time. I think there is a role for this kind of centralized brain trust for COVID-19, most likely with involvement by CDC.
Let's shift to “reopening” the country. Courtney, can you talk about some of the factors that would enable us to contemplate reopening?
Gidengil: To ultimately control this we need for everyone to be immune, which means having an effective vaccine and having enough people take it to have herd immunity, or having enough people get it over time to get to the same level of herd immunity.
To ultimately control this we need for enough people to take an effective vaccine, or have enough people get COVID-19 over time to get to reach a level of herd immunity.
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Realistically, there won't be a vaccine for 12 to 18 months. So we are looking at a prolonged period of life not returning to normal. If we want to preserve our health care workforce and our health care systems, to be able to be able to care for diseases that are not COVID, and not have our hospitals overwhelmed, that's what we're looking at longer term.
We don't yet have a good understanding of how long immunity lasts, the level of antibodies needed, or the capacity yet to test the entire population. We have a ways to go.
I don't see immunity certificates in the short term supporting the first phase of reopening.
Carter: It also raises the question of liability.
If the federal government wants the economy to reopen, they might consider absorbing the risks businesses face if workers come back to work and get sick, or if they become vectors of transmission. We might imagine a compensation fund that Congress could create to protect businesses and school districts form bearing that risk.
Who will ultimately make the call—the CDC? Dr. Fauci? Some group of states?
Carter: State governors have the pen where it matters. They're the ones issuing orders to businesses. They have the enforcement powers.
There's some limited authority for the federal government to issue quarantine orders under Title 42. But it's the state orders that have the bite now.
The Minneapolis Fed President said it may be up to the people—whether they feel comfortable returning to work, returning to shopping.
Carter: Yes, if you reopen your business and no one shows up, you may lose more than if you remain in a hibernating state. Premature opening could lead to more economic damage if consumers vote with their feet and stay away from shopping malls.
Gidengil: The idea of people voting with their feet doesn't really work for those who don't have a choice. If their factory or restaurant reopens, their choice is unemployment or going back to work when they're not comfortable.
So there is a real onus on leaders at every level to be thoughtful on policies around reopening, to make sure that people not only feel safe but are as safe as possible. That really depends on pretty aggressive testing policies, contact tracing, and ultimately treatment and vaccines.
Haffajee: In Ohio, Governor DeWine's priority seems to be restoring confidence in people to reengage in society. That will be a key indicator for him in determining when it's appropriate to reopen the economy.
Congress could arguably use interstate commerce powers to do something on the economy, in terms of business openings. But I don't think they will. I think they will leave it to states and governors.