The Governors now know that states alone have the emergency powers to seize authority over businesses, schools, and even individuals in a health crisis. Chances are good they did not know the extent of those quarantine laws just ninety days ago but they do now.
When the COVID Crisis began larger states like New York and Ohio were struck with panic by the miscalculated scientific models provided by the federal government. Governors were overwhelmed by the threat of surging hospital demand and lack of resources and supplies. So they embraced the White House and adopted the now worn-out jingle, “We are all in this together.”
Together the Task Force and the Governors worked out a strategy. The scary models called “science” would come via Drs. Fauci and Birx. The Task Force would get hospital beds, PPE and ventilators. The President would lean into the WWII emergency laws and get American business on board in a hurry. The shutdown guidelines would be designed by the CDC and the Governors would execute the shutdowns and hand Congress the bill. The President would go to Congress and get the money to cover the bail outs, unemployment costs, small business loans and whatever other stimulus moneys were needed. President Trump got it all paid for, unfortunately all with new federal debt, as Congress handed the bill back to the taxpayers. It was the art of the deal.
Now the President wants to “re-open the economy” but the deal has changed. Many states are walking away from the federal table. The threat of being overwhelmed by COVID-19 has been replaced by the inexhaustible temptation to manage a crisis. The Governors have grown quite used to their newfound powers and the media spotlight. Suddenly they have decided that no federal power will tell them what to do or when to do it. They have rediscovered states’ rights and none more than New York’s Andrew Cuomo who made this statement regarding President Trump on MSNBC:
“… if he tried an edict from the White House that put the people of the state of New York in jeopardy or violated what I thought was in their best interest, from a public health point of view, we would just be off to a lawsuit. And that’s the only way this really horrendous situation could get worse, is if you now see a war between the federal government and the states.”
Governor Cuomo is actually quite right on this one point. From the earliest days of the Constitution the legal power over quarantine laws resides with the states. The Governors are all claiming some form of “emergency powers” as their platform for shutdowns but their actions are anchored within state quarantine laws and authority. So in relation to the White House, the states that no longer need help can just walk away from the Task Force. They can threaten litigation and even intimate a war with the federal government.
Quarantine laws run headlong into the most treasured of American liberties. No one alive today has ever seen the federal and state governments suspend civil rights at this level. The devastation caused by the shutdowns will soon fall upon the nation. The virus is something no one would wish upon anyone. It fell upon us all. The mistaken leadership of the crisis is something that we the people did to ourselves. We elected all the people who executed this failed strategy.
It did not have to be this way. We could have done three things at one time and still “saved lives”, but we failed to do so. Now the question is how do we end this national tragedy and prevent a return?
There has been one group missing in action for nearly all of this battle, that is, the state legislators. The leaders of nearly every state elected assembly have been mostly missing in action. Ironically, it is their predecessors in the Legislative branch that passed the quarantine and emergency laws upon which the Governors are now standing. Therefore, it is only the State Legislatures that can reform the quarantine laws to make certain that the mistakes of the COVID War are never repeated.
There are a series of principles that can direct the process of reforming state quarantine laws. Here is a place to start:
1. Place the primary authority of all quarantine laws in the elected Legislature not the Department of Health.
2. Permit the Governor to be the first agent to call for an emergency quarantine, but
3. Require Legislative approval for the execution and duration of any quarantine plan. All such actions must be conducted according to law in open public meetings, hearings, and committee votes.
4. Permit state and local health departments to draft and execute quarantine actions but only according to established law and with mandatory Legislative oversight and approval.
5. No person residing in any state shall be subject to quarantine laws without the right of due process and equal protection under the law. No property may be seized, no businesses closed or access denied without due process of law.
These concepts are where the conversation regarding medical emergencies such as COVID-19 should begin. There is a difference, however, between a health emergency and a bio-terrorism attack. As such there must be a different set of regulations in such emergencies caused by either natural disasters or acts of war.
By failing to show up in this crisis, state lawmakers have placed their constituencies at serious risk . Only 11 governors are up for election in 2020. Almost every state House member and many Senators will be on the ballot this fall. It is time for Quarantine Reform to be the single most important conversation between the electorate and their state officials. Now is the time for reforming these laws to prevent a repeat collapse from COVID-19. Now is the time for State Lawmakers to do their jobs.
© The American Policy Roundtable, 2020