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