Monkeypox proves---federalism is terrible

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.

Unfortunately, the cry for “states’ rights” today often ends up endangering health, just as it did by perpetuating the systematic racial oppression that underlies so many of today’s health inequities. To see how federalism threatens health, consider the early days of the COVID pandemic. Although states could and did implement many measures that slowed the coronavirus in 2020, they could not prevent the transmission of the microbe across state lines. One state’s lax policies invariably led to increases in cases in other states. The divergent approaches by different state governments in 2020 and 2021 also muddied the public health message. (To be fair, the poor messaging from the federal government did not help.) For example, it was hard to know in the summer and fall of 2020 if masking was beneficial when only some states required it. Worse, the variation in policies among states created a type of race to the bottom in which the economic competition from states with looser regulations pushed other states to rescind their own health orders. (Interestingly, states that kept restrictions in place longer had better health outcomes, but faced worse economic conditions).

The need for a national response has also been evident during the monkeypox outbreak. One of the major stumbling blocks to containing the disease last summer was a shortfall of reliable data. But due to constitutional limitations and the norms that have grown up around them, the federal government depends on the states, territories and tribal authorities to gather and share data about disease outbreaks, as well as for much of the frontline response, as Secretary of Health and Human Services Xavier Becerra noted in excusing the federal government’s inability to get on top of the escalating outbreak. While Becerra’s statement was largely self-serving, he was correct in stating that the federal government’s capacity to respond to a pandemic depends, in large measure, on the cooperation of the states, territories, and tribal authorities.

These inefficiencies have been amplified by more than two decades of Supreme Court decisions that, in the name of states’ rights, have handcuffed the federal government’s ability to protect the public’s health. For example, in 1997, the Supreme Court ruled that the federal government could not command state officials to conduct background checks before gun sales. That decision explains why the federal government could not require the states to open or close schools during the pandemic, or require states to impose vaccination requirements. While the federal government can use its spending powers to induce states to comply with its policy goals, states can reject the money and refuse to cooperate.

The need for a national response has also been evident during the monkeypox outbreak. One of the major stumbling blocks to containing the disease last summer was a shortfall of reliable data. But due to constitutional limitations and the norms that have grown up around them, the federal government depends on the states, territories and tribal authorities to gather and share data about disease outbreaks, as well as for much of the frontline response, as Secretary of Health and Human Services Xavier Becerra noted in excusing the federal government’s inability to get on top of the escalating outbreak. While Becerra’s statement was largely self-serving, he was correct in stating that the federal government’s capacity to respond to a pandemic depends, in large measure, on the cooperation of the states, territories, and tribal authorities.

These inefficiencies have been amplified by more than two decades of Supreme Court decisions that, in the name of states’ rights, have handcuffed the federal government’s ability to protect the public’s health. For example, in 1997, the Supreme Court ruled that the federal government could not command state officials to conduct background checks before gun sales. That decision explains why the federal government could not require the states to open or close schools during the pandemic, or require states to impose vaccination requirements. While the federal government can use its spending powers to induce states to comply with its policy goals, states can reject the money and refuse to cooperate.

The Supreme Court underscored that point, while emphasizing states’ rights in its 2012 decision in NFIB v. Sebelius, which blocked the federal government’s efforts through the Affordable Care Act to expand Medicaid. The result: more than two million more Americans were left uninsured. The goal of preserving the states’ primary role over health also played a crucial rule in the Supreme Court’s 2021 ruling striking CDC’s eviction moratorium, a policy the agency had intended to prevent people from losing their homes during the pandemic. The Supreme Court later relied on that case to block the Occupational Safety and Health Administration’s rule mandating that large employers require their employees to be vaccinated or wear a mask and be tested. A few months later, the Court cited those decisions to strike down EPA’s Clean Power Plan rule. Lower courts have relied on these cases to enjoin federal COVID vaccine mandates for federal contractors, federal employees and even Head Start childcare programs.

The impact of the Court’s decisions is magnified in our current polarized and often dysfunctional political landscape in which Congress and the states often choose not to cooperate with the federal government, or even sister states, regardless of the health consequences. Indeed, the various structural limits that the Court has erected to protect states’ rights have come to serve as a tool that partisans use to attack the policies of federal leaders from the opposing party. Hence, we have the increasingly frequent practice of red states rushing to court to challenge the policies of Democratic presidents, and blue states bringing lawsuits against Republican presidents. How else to explain the fact that 22 states brought lawsuits challenging a vaccine mandate for federal contractors? With the courts’ assent, if not invitation, federalism has become but another weapon for partisan warriors. With that, health policies languish and public well-being declines.

The deleterious impact of our polarized environment has also spurred battles among the states. During the early days of the pandemic, several states threatened to block travel from residents of other states. States also engaged in a bidding war for the procurement of critical supplies in spring 2020. Such intrastate strife has only escalated since the Supreme Court issued its decision in Dobbs v. Jackson Women’s Health Center, overturning Roe v. Wade. In theory, the Supreme Court’s decision should allow each state to go its own way. But this live-and-let-live attitude may not be viable with an issue as deeply contentious as abortion (as it was not with slavery or Jim Crow). Predictably, in the months since Dobbs was decided, we have seen the type of interstate battles that we have not seen since the Civil War, as states banning abortion have threatened to block interstate travel and criminalize procedures done in other states, while states permitting abortion rushed to pass laws protecting their clinicians from out-of-state prosecution. Meanwhile, the federal government and the states are also engaged in litigation about whether federal protections for patients in emergency departments supersedes state bans on abortion. And advocates on both sides of the issue seek a federal law codifying their position. In short, despite frequent paeans to federalism, neither side is willing to accept the diversity of approaches that federalism should entail.

For more than a century, our federalism enabled the governmental units that were then best equipped to respond to health threats to do so. Even today, federalism need not be fatal, as the experience of other federal nations, such Germany and Canada, show. Both countries grant their states or provinces significant authority over health. But both nations were able to weather the COVID pandemic far more successfully than the U.S. And the citizens of both countries enjoy significantly longer life expectancies than Americans.

Federalism is not, of course, the only reason why the U.S. fares so poorly as compared to other wealthy nations on a wide range of health measures. But in today’s increasingly polarized political environment, legal doctrines that once supported the states’ ability to protect the health of their residents are diminishing the capacity of both our national and local governments to do so. Unless the courts stop enabling this political weaponization of federalism, our federalism will remain uncooperative. And deadly.