So there is theory and practice. In theory, public health is a purely state issue. In practice, it’s a mostly state issue. But there is a real legal limit here: the federal government has no general police power: https://en.wikipedia.org/wiki/Police_power_(United_States_co...
> In United States constitutional law, police power is the capacity of the states to regulate behavior and enforce order within their territory for the betterment of the health, safety, morals, and general welfare of their inhabitants.
This is not an unusual principle. Germany has a similar principle, which is why Angela Merkel didn’t issue a mask order either.
See the first bullet on Slide 8: “State and local governments carry out most communicable disease surveillance and control under the police power.”
See Slide 10: “Most powers for public health surveillance, investigations, and interventions derive from state and local law.”
The federal government provides “expert public health assistance” and regulates “disease carriers who cross state lines.”
So when we talk about things like tracing protocols, where does that fit? The CDC can provide expert advice about what sorts of testing protocols are effective. But the state governments must actually develop and execute the surveillance and intervention: testing patients, quarantining them, etc. The federal government is supposed to assist insofar as patients might move between states.
This is how everyone has always understood the division of labor in public health to be set up. Countries like Germany have similar legal structures, and have managed just fine. Even countries like Japan, where the central government does have a general police power, still delegates things like testing because the local governments are more nimble.
Only in America would be ignore the clear division of labor that’s in place during a pandemic.
> In theory, public health is a purely state issue
No, it's not. The federal government is, in theory, fully empowered to use any of it's enumerated powers for any purpose not expressly prohibited, which public health is not, and has quite emphatically adopted policy around exercising its power for that purpose, starting at least as far back as the establishment of the marine hospitals in 1798, later, in many steps, reorganized into the modern US Public Health Service.
The Marine Hospital Service wasn’t a “public health” service. It was for taking care of disabled and ill federal beneficiaries. Until 1878, it was concerned with treating members of the military. The first exercise of general public health powers seems to be in the Quarantine Act of 1878, but that was directed specifically at preventing vessels with infected people from entering US ports or informing relevant state and local officials if they did: https://www.loc.gov/law/help/statutes-at-large/45th-congress.... This was focused on infectious disease screening of Ellis Island immigrants. Maybe by this point you can say that public health is within the federal government’s jurisdiction insofar as it’s an adjunct to the government’s power over the border, which is fair. But because the government’s power over the border is plenary, you can shoehorn many things that would otherwise be purely state issues into that.
The reorganization into the US Public Health Service was in 1912, and that’s when it picked up general authority to study infectious diseases. But that era isn’t really relevant to what’s constitutional.
> In United States constitutional law, police power is the capacity of the states to regulate behavior and enforce order within their territory for the betterment of the health, safety, morals, and general welfare of their inhabitants.
This is not an unusual principle. Germany has a similar principle, which is why Angela Merkel didn’t issue a mask order either.
The federal agencies are best understood as having a coordinating role for when inter-state issues are involved. This CDC PowerPoint (which predates Covid) explains: https://www.cdc.gov/phlp/docs/phl101/PHL101-Unit-5-16Jan09-S...
See the first bullet on Slide 8: “State and local governments carry out most communicable disease surveillance and control under the police power.”
See Slide 10: “Most powers for public health surveillance, investigations, and interventions derive from state and local law.”
The federal government provides “expert public health assistance” and regulates “disease carriers who cross state lines.”
So when we talk about things like tracing protocols, where does that fit? The CDC can provide expert advice about what sorts of testing protocols are effective. But the state governments must actually develop and execute the surveillance and intervention: testing patients, quarantining them, etc. The federal government is supposed to assist insofar as patients might move between states.
This is how everyone has always understood the division of labor in public health to be set up. Countries like Germany have similar legal structures, and have managed just fine. Even countries like Japan, where the central government does have a general police power, still delegates things like testing because the local governments are more nimble.
Only in America would be ignore the clear division of labor that’s in place during a pandemic.