Even to the extent that we’ve long ignored the constitution on these issues, we still haven’t put the federal government in a primary role for public health. The federal government is not supposed to be the front-line response to a pandemic. CDC’s own documents make clear, for example, that it is supposed to provide expert advice and deal with patients that cross state lines, while states are supposed to handle actual testing and intervention: https://www.cdc.gov/phlp/docs/phl101/PHL101-Unit-5-16Jan09-S....
Same thing with FEMA. It’s not supposed to be front-line disaster response. It’s supposed to be a backstop for when a particular state is overwhelmed. That’s why FEMA is legally not allowed to act until a governor declares a state of emergency and asks for assistance. But every state is supposed to be prepared to handle their own disasters. FEMA is a backstop—it’s not supposed to have the resources to help every state at the same time.
The NIH is a research agency. It doesn’t have an operational role in public health.
Even if we overlook what’s “explicitly enumerated” and we look at the structure that exists today by historical accident, the federal government is still relegated to an advisory role, and dealing with travel. But those aren’t the things that went wrong with the pandemic response. Lockdowns are an operational role, and entrusted to the states. PPE, testing kits, having people in place to do tracing and isolation? All of that is operational, and was assigned to the state governments. Mask orders are an exercise of the general police power, and entrusted to the states.
Again, this is not an ideological point about how things should be. (Although, they are this way because that’s how the constitution sets things up.) It’s a point about whose job it was to be prepared. The states were supposed to be prepared for this, and they weren’t. By the time the pandemic hit, there wasn’t much the federal government could do. It could advise states about tracing and isolation protocols, but it has no boots on the ground to actually do any of those things. The states were supposed to be prepared to do all that.
Same thing with FEMA. It’s not supposed to be front-line disaster response. It’s supposed to be a backstop for when a particular state is overwhelmed. That’s why FEMA is legally not allowed to act until a governor declares a state of emergency and asks for assistance. But every state is supposed to be prepared to handle their own disasters. FEMA is a backstop—it’s not supposed to have the resources to help every state at the same time.
The NIH is a research agency. It doesn’t have an operational role in public health.
Even if we overlook what’s “explicitly enumerated” and we look at the structure that exists today by historical accident, the federal government is still relegated to an advisory role, and dealing with travel. But those aren’t the things that went wrong with the pandemic response. Lockdowns are an operational role, and entrusted to the states. PPE, testing kits, having people in place to do tracing and isolation? All of that is operational, and was assigned to the state governments. Mask orders are an exercise of the general police power, and entrusted to the states.
Again, this is not an ideological point about how things should be. (Although, they are this way because that’s how the constitution sets things up.) It’s a point about whose job it was to be prepared. The states were supposed to be prepared for this, and they weren’t. By the time the pandemic hit, there wasn’t much the federal government could do. It could advise states about tracing and isolation protocols, but it has no boots on the ground to actually do any of those things. The states were supposed to be prepared to do all that.