The Media and Trump Need a Civics Lesson on the Tenth Amendment and Federalism

The vast majority of nations around the world have ordered economic closures and stay-at-home orders in response to the COVID-19 pandemic.

There are exceptions, however, both abroad and here in the states. In the US, 42 states have issued stay-at-home orders with the goal of “flattening the curve” to reduce the spread of the virus and avoid overwhelming healthcare centers. As a result, 95 percent of Americans are under lockdown orders.

Still, a handful of states have tried a lighter touch, akin to what we’ve seen in Taiwan and Sweden. Oklahoma, Wyoming, and Utah have ordered partial lockdowns. A pair of states—Iowa and North Dakota—ordered nonessential businesses to close, but have yet to mandate that residents stay home for non-essential travel. Three states—Arkansas, Nebraska, and South Dakota—have not issued business closures or stay-at-home orders.

The fact that states have not responded uniformly to the crisis seems to rankle many in the media.

As NPR reports, leaders of these states have come under increased scrutiny for not taking a hardline approach. CNN correspondent Jeff Zeleny noted that by embracing this “states' rights defiance,” state leaders “collectively ignored the stay-at-home pleas of Dr. Anthony Fauci, the nation's top infectious disease expert.”

One White House reporter last week went so far as to ask the president why he hasn’t simply ordered all businesses to shut down in the wake of the COVID-19 pandemic.

“Obviously, we know anyone can spread the disease unwittingly,” correspondent Owen Jensen said. “So, why even have a few businesses open? Why not just shut everything down?”

This is a bizarre question, and not just because one wonders how hundreds of millions of people would get food if the nation’s stores were simply ordered closed by executive decree. The idea that the President of the United States should or even could order states to close their businesses and order Americans to stay in their homes is both dangerous and constitutionally suspect.

Just as constitutionally suspect, if not more so, is President Trump’s assertion that he can force states to open their economies.

"When somebody is the president of the United States, the authority is total,” Trump told reporters this week, when asked if he had the authority to rescind state public health orders. “And that's the way it's got to be. It's total."

Trump, to his credit, has since backed off this claim. But the fact that the president and media are even making such statements is troubling.

The Tenth Amendment of the US Constitution makes it abundantly clear that police powers reside with state and local governments, not Washington, DC. As scholars Lawrence Gostin and Sarah Wetter recently noted in The Atlantic, executive actions ordering states to close or open their economies would be “legally murky” at best.

“Constitutional authority for ordering major public-health interventions, such as mass quarantines and physical distancing, lies primarily with US states and localities via their ‘police powers’—a drastic difference from the national authorities of countries such as China and Italy,” write Gostin, a law professor at Georgetown, and Wetter, a Law Fellow at Georgetown’s O’Neill Institute for National and Global Health Law.

Such basic civics used to be taught to American school children across the land, but apparently this is no longer the case.

Perhaps some believe constitutional niceties are well and good in normal times, but states of emergency call for extra-constitutional means. If it’s the latter, fine; but let’s at least be clear that people are seeking to subvert the Constitution for an alleged “greater good.”

If the president ordered states to enforce lockdowns, however, this action would not only be unlawful. It might also be unwise.

The findings of a groundbreaking new white paper published by Cold Spring Harbor Laboratory, Yale University, and BMJ suggest mass lockdowns may not be the best way to combat the novel coronavirus.

Analyzing data from Belgium, Germany, Italy, the Netherlands, Portugal, Spain, Sweden, and Switzerland, as well as New York City, Louisiana, Michigan, and Washington State, researchers concluded that COVID-19 deaths “are remarkably uncommon” for individuals under the age of 65 who do not have preexisting health conditions. In pandemic hotbeds such as the Netherlands, Italy, and New York City, people in this category accounted for just 0.3 percent, 0.7 percent, and 1.8 percent of all COVID-19 deaths, researchers found.

“The COVID-19 death risk in people (under) 65 years old during the period of fatalities from the epidemic was equivalent to the death risk from driving between 9 miles per day (Germany) and 415 miles per day (New York City),” wrote scholars John P. A. Ioannidis, Cathrine Axfors, and Despina G. Contopoulos-Ioannidis. “Strategies focusing specifically on protecting high-risk elderly individuals should be considered in managing the pandemic.”

These findings suggest mass lockdowns might not be the ideal method for containing COVID-19. At the very least, they suggest there is no need for a uniform approach.

Intuitively, one might suspect that the best solution for New York State—which has a metropolitan area that has 26,403 people per square mile—may not be the same as that of Wyoming, which has a population density of 5.8 people per square mile.

The data would seem to bear this out. While sweeping state actions may be required in New York, which currently has 226,000 cases and more than 16,000 deaths, there’s little hard evidence to suggest that such actions are required in Wyoming or many other sparsely populated states.

Wyoming, which has registered just 400 cases, has a grand total of two COVID-19 deaths. North Dakota and South Dakota combined have had just 16 deaths and 1,700 cases. To put that in perspective, more people died of the flu in South Dakota last season than COVID-19.

Does it make any sense to take extraconstitutional action to force these economies to close?

What many today fail to recognize is that federalism is not a weakness of America but its strength. As Supreme Court Justice Louis Brandeis famously observed, they are our “laboratories of democracy.”

Because of federalism, we’re seeing there are various ways to combat COVID-19. We may learn from these holdouts that perhaps mass shutdowns were unnecessary or even counter-productive. Or maybe not. It’s possible that states may need to shift from no shutdown to a partial shutdown, or from a partial shutdown to a full shutdown, should COVID-19 cases spike.

Either way, state leaders are perfectly capable of making such decisions. COVID-19 is a serious matter, but not so serious that we should be eviscerating the Constitution to combat it.