I taught the U.S. Constitution and Current Events simultaneous at the college level for forty years using the Constitution as written in solving controversies or problems—so well designed was it. Students quickly discovered that there were no issues that could not be resolved. So how should the Coronavirus crisis be resolved under the Constitution? States would be taking the lead.

The overall principle of free government and the Constitution as written is to never elevate to a higher level that which can be resolved at a lesser level. Problem solving should begin with the individual and proceed in sequence from him to the family, city, county, and state and elevated only if a lower level of government could not do it. Outside the family all are elected, can tax for its needs, and each is reasonably accessible to the individual. Who says government further away and less accessible performs better or is freer?

Notice in the problem solving sequence the federal government was not included. In the Constitution this was purposeful. States were sovereign outside foreign policy. The states were required to be republics (Article IV, Section 4) and were independent of the federal government except for the powers given it listed in Article I, Section 8, Clauses 1-18; essentially the power to tax, pay the debts, and provide for the general welfare and common defense—the last two limited by eight clauses each. All other authority not specifically identified by amendment was left to the states as per Amendment 10. “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

We live under two political systems: one (federal) centered on foreign affairs, the other (states) primarily domestic. It’s called Federalism, the two share power, neither subservient or above the other and each with separate duties; like a good marriage, a team. This is why President Donald Trump has been encouraging more state involvement. Federal involvement in our lives is supposed to be minimal.

The advantages of federalism are enormous. States serve as laboratories of experimentation. States look to sister states for models and borrow from them in refining their own programs. These places of experimentation benefit everyone.

In the case of the coronavirus, the federal government, led by Trump, controls the border under common defense—those coming in. Trump is not constitutionally empowered to mandate national behavior. Constitutionally states have borders and manage themselves. Taxing powers enable them to fund anything they wish and governors have broad powers to experiment, or not, on different solutions.

Nevada governor threatened doctors using hydroxy-chloroquine in the treatment of the virus, others encouraged its use. The virus apexes in different places at different times more especially in crowded areas and summer (getting outdoors) comes earlier in southern states. Each state would decide what measures were best suited for them regarding “shelter in place” or when to return to work. Trump, or Congress, would have little to do with these decisions.

As of March 25, 2020, New York had 10 times the number infected compared to the next in line state New Jersey, and 15 times the number of third in line California. New York Governor Andrew Cuomo quickly developed a plan of action to slow the virus and simultaneously ramp up the beds, staff, and equipment. He initiated “mandatory playground social density,” and no close contact sports. He also sought dormitories and former nursing homes to facilitate more hospital beds.

Moreover, he expressed some unique ideas as well, such as splitting ventilators (for two beds instead of one) and developed a “surge healthcare force” of retired nurses and doctors, hopefully 40,000 strong, as a backup for tired healthcare workers. He created a Mental Health Professionals Sign up Program together with a Hot-Line. He suggested a “rolling deployment” of equipment and practitioners serving New York first then “rolling” to different hot spots as each state enters its apex. Federalism was exercised as 49 other governors did similarly rather than dump all responsibility on Trump.

Under Federalism states have the responsibility to be prepared for emergencies and have in place their own programs of assistance and funding. But Governor Cuomo, although commendably now doing something, should have planned for this predicted emergency his first term in office rather than his third. Ventilators, masks, and reserve funding for emergencies, plus a plan for reserve medical staff, should have already been in place. They weren’t! In emergencies when states do not perform their responsibilities they force power to the next level of government as was such in this case. Trump had to provide ventilators, a medical ship, and build three makeshift hospitals in Central Park at federal expense.

Although the Constitution is designed to deal with the Coronavirus, states have allowed themselves to become subservient and wards of the federal government. They now hold “alms bowl in hand” begging the federal government to do things for them. They allow whomever is president to have power over them. Many states have larger populations than many countries and have their own tax base and authority. Fumbling this responsibility should never happen. Constitutionally, once the borders are secure, under Federalism 50 governors should be on the front lines ahead of Donald Trump.

Harold Pease

The 10th Amendment

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”



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