Among the Several States?

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Among the Several States?

By Patrick F. Cannon

I’d like to call your attention to the Commerce Clause of the United States Constitution. Wait! Don’t delete this yet! Just give me a few minutes.

The Clause (Article 1, Section 8, Clause 3) permits the national government to “regulate commerce with foreign nations, and among the several states, and with the Indian.” To define it simply, it means that the individual states can’t go their own way if it affects the other states. For example, Illinois can’t charge Wisconsin cheese makers a tariff for shipping their cheddar from Kenosha to Waukegan. It also gives the Federal government the power to regulate companies that do business in multiple states.

Since Congress and the courts have been generous (sometimes too generous) in their interpretation of the Clause, it confuses me that the public health of the nation doesn’t seem to fit within its broad scope. During the current pandemic, the individual states have gone their own way, often with tragic results.

What could be more “among the several states” than a scourge that has killed 131,700 Americans in every state (as of 7/8). Yet, every one of the 50 states has gone its own way in addressing the crisis. Most were late in recognizing it seriousness. The light bulb eventually went on for some and they did everything they could to halt its spread. Others chose to follow the lead of the science denier in the White House and treated it like a passing fad. I don’t think it’s too much to say that many of our governors have blood on their hands.

If you pay attention to the news, you’ll notice that there’s a good deal of finger pointing going on. Let’s blame the Chinese government or the World Health Organization. If they’d done their jobs, we wouldn’t have this problem. Of course, the Chinese seem to be blaming the U.S. Army for loosing the plague upon the world.  And just recently, I read that Neanderthal DNA has been found in Covid-19, or was it the President’s?  At this point, it doesn’t matter! What matters is  that we screwed up. And what we can do now to make sure it doesn’t happen again.

I happen to think Congress can fix this by passing legislation to give the proper government agencies the power to compel the states to take whatever actions it deems necessary to prevent, or at least mitigate, future public health disasters. I would suggest that the Surgeon General of the United States, and the director of the Centers for Disease Control, jointly, be given the power to declare a public health emergency, and compel the states to act; and that the declaration not be subject to approval by the President.  Public health is not a political issue, which it most certainly has become in this instance.

While I believe the Commerce Clause gives Congress the power to act, it may be better in the long run to enshrine these powers in the Constitution itself. That way, the courts won’t be clogged with challenges to any laws that pass. And it would prevent frightened governors from looking over their shoulders fearfully at the kind of voters who put the current knucklehead in the White House, and who might make the same mistake again.

Copyright 2020, Patrick F. Cannon

 

6 thoughts on “Among the Several States?”

  1. There has been a general outcry, stemming from the increasing number of confirmed Covid cases and fatalities, for a national policy to control and mitigate the effects of the outbreak. Some of the exasperation has been motivated by a frenzied media in an election year and directed at the White House, but the fact remains that too many people have suffered from this disease and there is no clear resolution in sight, despite job-killing lockdowns and redoubled efforts to develop vaccines and treatments.

    The US isn’t alone in this. Other advanced countries such as the UK, France, Spain, Italy, Belgium and Sweden have experienced comparable rates of infection and death. In contrast, countries like Japan, Taiwan, S. Korea, Australia and New Zealand have managed to limit the virus’s spread and lethal outcomes. It’s hard to say how much of the difference is the result of national policy and how much is culture.

    The Japanese, for example, move in lockstep at top-down direction. They have an excellent healthcare system and are accustomed to good hygiene and wearing protective masks. Italians, by contrast, have a highly localized society, an inconsistent health system and a government that is more adversary than guide. They enjoy close company with family and friends, a sure way to spread contagion.

    Americans, for our part, tend to be individualistic, loudly opinionated, and politicized on all matters. We have excellent, if increasingly corporate and bureaucratic, health care; overlapping and redundant government agencies; a dysfunctional Congress that spends most of its energies jockeying for re-election and a President who can be as contrary and whimsical as the weather.

    I’m not clear that the Commerce Clause, which concerns the exchange of goods and services, applies here. The national prohibition of marijuana use, for example, has had little impact on state drug laws let alone individual behavior. But even if it did apply, what government body would carry out a consistent national health policy? The CDC’s performance has been less than stellar. It botched early efforts to contain spread of the virus by issuing defective test kits. Masks and ventilators were in short supply. The NIAID and Dr Fauci, for all their expertise, were responsible for funding controversial research — research that had been banned in the US as too risky — at the Wuhan lab that was probably responsible for spawning this virus.

    Our governance system just doesn’t seem suited for a top-down policy. If it tried to be authoritarian the lawyers would be all over it in a New York minute. Just ask Donald Trump. And then, who would listen? Despite sensible heath advice, Americans continue to smoke, drink too much, indulge in risky behavior, shoot each other and likely lead the world in obesity. When did they ever listen to advice, if it didn’t come from Ann Landers?

    So I imagine you are as frustrated as I am with this whole business. I haven’t been to a restaurant or a concert in months. We have had to cancel two vacation trips, including a cruise to Alaska. I spend a lot of time at home, and too much time writing wordy comments like this. I guess we really should blame that racist capitalist Christopher Columbus or maybe the slave-owning Founding Fathers for having screwed everything up.

    But compared to many others, who have been out of work or obliged to work, I suppose I have been lucky. At least I don’t have to ride the NY subway anymore!

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    1. A national policy, even flawed, would have been better than this. France and Italy, which were blindsided, actually managed to get things under control eventually, which we have not. I do agree it helps too have a culture like Japan’s!

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  2. Italy and France have lower infection rates (per 1M population) but sadly higher death rates. If we had a national virus policy, I don’t know how it would differ in substance from what we’ve had. If you have a national directive — masks, screening, isolating the sick — you had better be prepared to carry it out. The federal government is not prepared or even capable. The US has 50 different state governments that, even with national directive, would still decide how to proceed. We have a national policy on immigration. How is that working out? The Boston-DC commuter corridor through NYC got blasted early and went into emergency lockdown mode. What would they have done differently (aside from placing sick people in nursing homes)? Would a national policy have quarantined that area from the rest of the country as China did Wuhan? Now NY, NJ and PA are reporting much lower rates of infection, as are Italy and France. Is it because of national policies? A skillfully worded national policy does have one advantage, I’ll concede. It lets the party in power shift blame and say, “Ha! We didn’t screw up, you didn’t follow policy!”

    Stay well.

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    1. Of course, it would be difficult to enforce. But a clear policy is better than no policy at all. And, yes, I think there should be the possibility of a ban on travel from highly-infected areas. People will always cheat, just as they did in WW II, but we ended up winning anyway.

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