The United States Government’s response to the coronavirus outbreak raises difficult questions of federalism. This essay argues for greater federal leadership and involvement to mount the most effective response to a pandemic. As history shows, a response led by local governments is vulnerable to collective action problems and political impediments. An improved response structure in a contagious disease event would include more federal leadership and policy dictated by the Centers for Disease Control (CDC), to be then effectuated by state and local governments. This power can be exercised either formally, through federal grants, or informally through the influence of public locally-focused CDC recommendations.
Second, this essay argues for greater federal influence over public health measures such as quarantine and isolation for a more uniform national response. As the law now exists, federal authority over everything but international border quarantines is somewhat ambiguous. State and local governments have exercised quarantine authority inconsistently, and may not possess the institutional knowledge to weigh the costs and benefits of confinement actions. Inevitably during a severe pandemic, localities may also push the limits of their authority to quarantine, potentially in opposition to federal government policy, hindering a nationwide pandemic response. Implicit in this recommendation is a call for greater statutory authorization for the CDC.
Finally, the potential constitutional questions that arise from the suggested policy alterations are considered. Government officials are always in a challenging position when responding to a pandemic. This challenge is magnified when federal authority over the matter is unclear. The United States system of public health federalism must be rebalanced in some areas, to gain an effective uniform response to an outbreak of disease.
Kyle J. Connors, Federalism and Contagion: Reevaluating the Role of the CDC, 12 ConLawNOW 75 (2020)