A version of this essay was first published in the February 15, 2022 Epoch Times.
When a public emergency strikes, officials respond in panic. They often don’t remember what they learned from previous emergencies.
When a public emergency ends, everyone breathes a sigh of relief. Eager to move ahead with their lives, decision makers neglect to change the law to embody what they have just learned.
During World War II, federal authorities herded 70,000 American citizens of Japanese descent into concentration camps—without charges and without trial. After it was over, we vowed it would never happen again. But when COVID-19 arrived, officials issued “stay at home” orders that unconstitutionally detained millions of citizens.
Both actions violated constitutional rights and accomplished little. In World War II, we didn’t need to detain tens of thousands; we could have used loyalty hearings to screen citizens, as the British did. Similarly, we didn’t need COVID-19 lockdowns. They didn’t stem the pandemic and imposed incalculable psychological and economic damage.
Right now—while pandemic mistakes are fresh in our minds—is the time to adopt legal reforms to ensure those mistakes don’t happen again. Here are four reforms for state legislatures to consider:
First Reform: Get the Federal Government Out of Public Health
“Public health” refers to health issues affecting the community at large. Examples include disease and pest control, safety in public accommodations, and sewers and water supply.
Until COVID-19 hit, the federal government had been involved only peripherally in public health. But the pandemic gave federal politicians and bureaucrats an excuse to expand their power and influence. Former President Donald Trump held regular press conferences on the subject. President Joe Biden issued sweeping mandates. Bureaucrats such as Anthony Fauci and Rochelle Walensky of the highly politicized National Institutes of Health (NIH) and Centers for Disease Control and Prevention (CDC) pushed onto center stage. The most dramatic power grab was Walensky’s: Her CDC effectively rewrote every residential lease in the country through its ill-considered eviction moratorium. Fortunately, the Supreme Court, although belatedly, struck it down (pdf).
The Constitution’s Tenth Amendment reserves public health issues within state boundaries to state governance. This was affirmed by no less than Chief Justice John Marshall, writing for a unanimous court in one of his most famous opinions.
Early in the pandemic Trump did a few useful things within his constitutional powers. These included closing the border and lifting regulatory obstructions to vaccine development. But much federal involvement has duplicated state efforts or done actual harm. Biden’s mandates have been overreaching, and most didn’t survive the courts. The CDC has been the source of contradictory and erroneous recommendations. NIH funding likely helped create the CCP virus itself.
We need to get the feds out of public health. Let state and local governments to do their jobs.
Of course, Congress will never agree. So we should bypass Congress with a constitutional amendment. This means using the Constitution’s method by which the states can amend the document without Congress’s approval.
How State Legislatures Can Get the Feds out of Public Health
State legislatures shouldn’t try to write a constitutional amendment. They should pass the uniform “Convention of States” resolution (pdf) calling a “Convention for proposing Amendments.” Then the convention (which is under state legislative control) can write a proposed amendment. Seventeen state legislatures—half of the two thirds necessary for calling a convention—already have passed the uniform resolution. It restrains the convention to a limited scope, but the scope is wide enough for it to propose an amendment removing the federal government from public health. The proposed amendment would become law if ratified by three fourths of the states (38 of 50).
At the end of the present essay is a draft showing what the amendment might look like. Readers curious about the make-up of a convention or how it works should consult this essay on the subject.
Second Reform: Curbing the Power of Unelected Officials
Unlike the federal government, states and many localities have broad “police powers” over public health. This is appropriate, but state legislatures should enact reforms to ensure that state and local abuses don’t recur.
Public health bureaucrats, like professionals generally, tend to have an exaggerated sense of the importance of their own field and to undervalue other concerns. This encourages them to impose psychological, sociological, or economic loss for marginal or unproven public health benefits. Moreover, unelected bureaucrats aren’t directly responsible to the public. The public can hold an elected official accountable for mistakes, but bureaucracy is forever.
State reforms, therefore, should ensure that unelected officials don’t exercise vast authority over their fellow citizens. When unelected personnel issue an order directed toward the general public, the law should limit it to 30 days or less. It should be renewable only by the elected executive officials serving at the same level of government.
For example, suppose that, in the face of an epidemic, a state health department limits the size of public assemblies. The order should terminate 30 days later unless extended by the governor. A decree from a city health department would last 30 days and be renewable only by the mayor. A county decree would last the same length of time and be extended only by the elected executive authority of the county. (In many counties, the elected executive and legislative authorities are the same.)
Third Reform: No More Executive Dictatorship
Requiring approval by an elected executive is a step in the right direction. It isn’t sufficient. State law should provide for prompt review by the legislative branch.
Suppose a state agency issues a lockdown order and the governor extends it beyond 30 days. The governor’s extension should expire after a further 60 days, unless approved by a general or special session of the state legislature. A mayor’s order would be reviewable by the city council, and a county executive’s order by the county commissioners or other county legislative body.
Fourth Reform: Require Consideration of Risks and Costs
Before government officials make a decision affecting the environment, they receive an environmental impact statement. Before lawmakers pass a fiscal bill, they receive a fiscal impact statement. In like manner, when lawmakers consider a broad public health order, they should have information beyond what public health officials tell them.
Before the legislative branch makes a final public health decision, it should have a “public health order impact statement.” In keeping with bureaucratic fashion, I’ll abbreviate it to “PHOIS.” (It sounds as it’s spelled.)
A PHOIS would be a cost-benefit analysis, not merely of public health risks and benefits, but also of social, psychological, and economic risks and benefits. The PHOIS for a proposed vaccine mandate would survey the mandate’s projected benefits, as well as known and possible risks and the costs of intruding into personal health decisions. The PHOIS for a proposed requirement that children wear masks in school would itemize possible gains together with risks to childhood development. The PHOIS for a proposed lockdown should assess advantages and costs to public health, to the economy, and to social infrastructure.
Because public health dangers often arise quickly, my proposed reforms would allow action for up to 90 days (30 + 60) without a PHOIS. Even with 90 days’ preparation, the analysis probably would be incomplete. But an incomplete survey of relevant issues usually is better than none at all.
Epilogue: What Might that Constitutional Amendment Look Like?
The following is merely a discussion draft. Some readers may find the language difficult because it’s written in constitutional style:
“Section 1. Neither this Constitution nor any provision thereof shall be construed to grant the United States government, nor any department or officer thereof, any general authority over the public health. Except as provided in Section 2 of this article, research into public health and the regulation, funding, and promotion thereof are reserved to the states and the people pursuant to the tenth article of amendment to this Constitution.
“Section 2. Congress may regulate public health only within the armed forces of the United States and within the militia when called into the actual Service of the United States; or within territory belonging to the United States described in the second clause of the third section of the fourth Article of this Constitution, or within enclaves created pursuant to the seventeenth clause of the eighth section of the first article, or as a wholly incidental effect of the regulation of trade with foreign nations, among the several states, or with the Indian tribes.”
This amendment wouldn’t affect programs serving individuals, such as Medicare, Medicaid, and Obamacare. But with four exceptions, it would clarify that public health is a state, not a federal concern.
The first three exceptions are public health within (1) the military, (2) federal territories, and (3) federal enclaves (such as Washington, D.C.). The fourth exception addresses incidental effects of regulating trade. The amendment would allow Congress to, for example, ban drugs not approved by the Food and Drug Administration (FDA) from interstate commerce. But state legislatures would be free to adopt or modify FDA standards for products produced and sold within their own borders. Moreover, Congress couldn’t control in-state public health activities under the commonly used pretext that those activities “substantially affect” interstate commerce.
This amendment wouldn’t change the Constitution as originally understood. Rather, it would perform the same function as the Ninth, Tenth, and Eleventh Amendments: Within its scope it would respond to misinterpretations by confirming and restoring the document’s original meaning.