Federalism is key to healthcare initiatives – states are in the best position to take control

Despite that sordid background, for most of U.S. history, federalism also ensured that the units of government that were 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, the states (and their cities and towns) were in the best position to respond to disease outbreaks. States and localities could and did impose quarantines, license physicians and institute a range of other measures designed to protect the public’s health. All of these actions were grounded in the states’ so-called police powers, the sovereign powers that the states retained when they joined the federal union. For the most part, courts deferred to such powers, leaving states with broad authority over public health. Indeed, courts have repeatedly emphasized the centrality of public health to the states’ police powers. The federal government, in contrast, lacks a police power. Its authority is limited to the areas specifically enumerated in the Constitution. Health is not one of those areas. Nevertheless, the federal government has long used its might to regulate international and interstate commerce, and to tax and spend for the general welfare, for the protection of health. For example, in 1798 Congress enacted a law providing Relief of Sick and Disabled Seaman, which led to the establishment of marine hospitals along navigable waters. In 1848 Congress passed the Drug Importation Act, which required the U.S. Customs Service inspection to block the importation of adulterated drugs. As the economy became more integrated and travel became faster and more frequent, health threats were increasingly recognized as nationwide in scope. In turn, the federal government’s involvement with health expanded. In 1889, Congress established the United States Public Health Service. In 1906 it passed the Pure Food and Drug Act, leading to the establishment of the Food and Drug Administration. In 1965 Congress created Medicare and Medicaid. The Environmental Protection Agency was established in 1970. One year later, the Occupational Safety and Health Administration was born. Today the federal government’s role in health policy is pervasive. Many federal health programs rely on what is commonly known as “cooperative federalism.” The federal government sets minimum standards and pays much of the costs. In exchange, the states, federal territories and tribal jurisdictions follow federal guidelines, do much of the on-the-ground work and, at times, 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 the protection of health belongs primarily to the states, territories and tribal jurisdictions. In the early months of the COVID pandemic, then-President Trump expressed that view, telling governors that they were going to call their “own shots.” That’s a sentiment that the conservative justices of the Supreme Court seemed to share last June when they limited EPA’s ability to address climate change and overturned Roe v. Wade. Photo of Lizelle Hererra carried during a July protest in Santa Monica, Calif., of the Supreme Court’s decision to overturn Roe vs Wade. Hererra was arrested in April in Texas for allegedly self-inducing an abortion. Credit: David McNew/Getty Images 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 states and local governments, the public is more likely to be protected against unsafe meals. Likewise, states and local governments are in a far better position than the federal government to provide many on-the-ground health services, from sexually transmitted disease clinics to tuberculosis screenings. The day-to-day work of public health departments depends in large measure on their placement in and relationships with local communities. States, territories, and tribal government can also serve as “laboratories of democracy,” to borrow Justice Louis Brandeis’ term. They can develop innovative health policies that other governments and even the federal government can copy. For example, Massachusetts 2006 health care reform law served as the model for the federal Affordable Care Act. States and cities have also led the way in tobacco control, banning youth access and indoor smoking years before the federal government made a serious effort to reduce cigarette consumption. Policy differences between jurisdictions can also serve as a type of a natural experiment, from which policy makers can learn which laws work and which don’t. Researchers can look at how varying motor vehicle safety laws in different states or different childhood vaccine laws correlate with motor vehicular accidents and vaccination respectively. Much of what we know about the efficacy of health policies comes precisely from such studies.