Some governors seek to shift their responsibility during the coronavirus up to federal level

Jonathon Turley:
New York Governor Andrew Cuomo called on the federal government to take control of the medical supply market. Illinois Governor J.B. Pritzker demanded that President Trump take charge and said “precious months” were wasted waiting for federal action. Some critics are even more direct in demanding a federal takeover, including a national quarantine.

It is the legal version of panic shopping. Many seem to long for federal takeovers, if not martial law. Yet like all panic shopping, they are buying into far more than they need while not doing as much as they could with what they have. For decades, governors tried to retain principal authority over public emergencies, but they did very little with those powers. While many are doing impressive work now, some governors seem as eager to contain the blame as the coronavirus. Call it political distancing.

Even if Trump nationalized the crisis by deploying troops, imposing price controls, and forcing production of ventilators, the Constitution has left most police authority and public health safety to the states in our system of federalism. The Framers believed liberties and powers were safest when held closest to citizens in local and state governments. Elected officials at the local and state levels are more readily held accountable than unknown Washington bureaucrats. Of course, with authority comes responsibility, and the latter notion is not always as welcomed as the former.

Despite all the hyperbole of the last few days, the federal authority of the president to act is much more limited than many appear to believe. Trump cannot, and should not, simply take over the crisis. While he may want to “open for business” by Easter, he has no clear authority to lift state orders for citizens to stay at home. His greatest authority is supplying assistance in the production and delivery of necessary resources such as ventilators. While he can put conditions on some assistance, he cannot commandeer the authority of governors in their responses to the pandemic.

Federal disaster relief and control is a relatively recent phenomenon. The response to the Galveston hurricane in 1900, with some 12,000 dead, was almost entirely by Texas. After the San Francisco earthquake in 1906, with around 3,000 dead, federal troops helped maintain order and establish medical units, but the recovery was primarily an effort by California. The Federal Emergency Management Agency was not created until 1979. Its mandate was to coordinate national responses to assist state and local governments in disasters. It was never meant to shift control.
Texas did some interesting things in response to the 1900 hurricane.  It dug a ship channel up Galveston Bay to Houston to provide a secure port and used the dredged material to raise the level of Galveston Island six to 10 higher and then built a seawall to protect it. 

I am always suspicious of attempts to use upward delegation of authority in a crisis.  Real heroes are those who respond to a crisis by upping their own game.


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