The States are known for terrible responding to health---that zeroes solvency for the first advantage

Americans have long been proud of our federalism, the way that we divide governmental power between the states and national government. As former Supreme Court Justice Anthony Kennedy famously explained, the framers of the U.S. Constitution “split the atom of sovereignty” creating “two political capacities, one state and one federal, each protected from incursion by the other.” In theory, this political invention serves to preserve liberty while bringing the government closer to the people. It allows red states to enact laws to their pleasing, and blue states to do the same. But in today’s public health, political and legal environment, our federalism has become deadly. Rather than permitting the governmental units that can best tackle health problems to do so, federalism invites partisan litigation and thwarts interstate cooperation. As a result, both the states and the federal government are increasingly unable to meet the nation’s health threats, even as those threats become ever more complex and dangerous.

This is not the first time our federalism has harmed health. Despite its many benefits, from the Constitution’s founding until the Civil War, federalism served to support slavery. Even after the Civil War and abolition, it perpetuated racial oppression, providing a rationale and legal defense for state laws that enforced segregation and imposed racial discrimination. By so doing, federalism helped to sow and maintain the racial inequities in health that continue to this day.

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 limitedEPA’s ability to address climate change and overturnedRoe v. Wade.