State vs Federal Government Powers – Public Health

State vs Federal Government Powers – Public Health

The majority of us believe the coronavirus is here and it is a threat to public health and safety (this is not a thread for the “nothingburgers”).

With that established – how does the government respond at Federal, State and Local levels?  Who is responsible for what and what authority does the Federal, State and Local government have in mobilizing, containing and implementing task forces in a crisis?

Everyone is focusing so much attention on POTUS when they should be focusing on their state Governors because when the SHTF, it’s your State Government who will hold the power in declaring State Emergencies and State Police Powers.

States have tremendous powers when implementing Public Health & Safety – for example, in California “Knowingly exposing others to HIV is no longer a felony”

Civics 101:

Federal Versus State Government

Federal Government power to:

* Make money
* Declare war
* Manage foreign relations
* Oversee trade between states and with other countries

State Governments to do the following:

* Ratify amendments
* Manage public health and safety
* Oversee trade in the state

Part I (-50%):
The Law and Public Health Infrastructure

The Organization of Governmental Public Health in the United States

The primary reason for the existence of government is to provide for the health, safety, and welfare of the people (Gostin, 2010; Lopez and Frieden, 2007). In the United States, governmental public health responsibilities and roles exist at three different levels: federal, state/tribal, and local/municipal. The fundamental division of responsibility among these levels is defined by the fact that the Constitution leaves untouched the states’ sovereign power (sometimes called “police powers,” discussed below) over most health issues and limits the role of the federal government primarily to (1) regulation of foreign and interstate commerce issues—and by extension, health issues and threats that could affect commerce, and (2) the power to tax and spend for the public welfare (Gostin, 2010; Grad, 2005)…

State Police Powers

Police powers, which the states possess as sovereign governments preceding the U.S. Constitution, are the powers to safeguard the health, safety, welfare, and morals of the population and may be exercised by public health agencies (also called health departments), along with police, fire, and sanitation departments (Lopez and Frieden, 2007) (see Box 2-2). States may delegate this power to local governments and for health purposes to public health and related agencies. Surveillance and required disease reporting are exercises of state police powers. In some states, disease reporting is mandated in decades-old statutes, while in others, the statutes may be general, and simply empower the state health commissioner or board of health to “create, monitor, and revise the list of reportable diseases and conditions” (Neslund et al., 2007, p. 224). In other states, this may be done either by statute or by regulations promulgated by the health department. The First, Fourth, Fifth, and Fourteenth Amendments provide procedural and substantive safeguards that constrain the exercise of police powers, such as due process and equal protection of the laws (see for example, Gostin, 2008).

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The Locus of Government Responsibility For the Public’s Health

Preemption is an area of considerable contention among the three levels of government because it involves a higher level of government restricting or eliminating a lower level of government’s regulatory ability on an issue (NPLAN and Public Health Law Center, 2010). The Constitution grants Congress and federal regulators broad authority to preempt, and states have similarly broad powers to preempt municipalities (this may depend somewhat on how municipal powers are granted or revoked by the state) (Public Health Law Center, 2010).

“Floor” preemption refers to federal or state laws or regulations that set and enforce a minimum standard, and permit lower levels of government to not enact statutes or promulgate regulations that go above that minimal standard…

A recent White House document cautioned against excessive agency preemption because “[t]hroughout our history, state and local governments have frequently protected health, safety, and the environment more aggressively than has the national government.”10 [2009] Furthermore, the federal government does not have the police powers granted to states in the area of health and safety.

Part II
Federal Emergency Management

How Communities and States Deal With Emergencies and Disasters

Local governments are the first line of defense against emergencies and disasters and are primarily responsible for managing the response to and recovery from those events. At the local government level, the primary responsibility for protecting citizens belongs to local elected officials such as mayors, city councils, and boards of commissioners. When a local government receives warning that an emergency could be imminent, its first priority is to alert and warn citizens and take whatever actions are needed to minimize damage and protect life and property…

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All states have laws that describe the responsibilities of State government in emergencies and disasters. These laws provide governors and State agencies with the authority to plan for and carry out the necessary actions to respond to emergencies and recover from their effects. Typically, State emergency management legislation describes the duties and powers of the Governor, whose authority typically includes the power to declare a state of emergency and to decide when to terminate this declaration…

Applying For Federal Assistance

Public Assistance: Local, State, Tribal and Private Non-Profit
The Robert T. Stafford Disaster Relief and Emergency Assistance Act, as Amended (Stafford Act), Title 42 of the United States Code (U.S.C.) § 5121 et seq., authorizes the President to provide Federal assistance when the magnitude of an incident or threatened incident exceeds the affected State, Territorial, Indian Tribal, and local government capabilities to respond or recover.

The Governor’s request is made through the regional FEMA office. State and Federal officials conduct a preliminary damage assessment (PDA) to estimate the extent of the disaster and its impact on individuals and public facilities. This information is included in the Governor’s request to show that the disaster is of such severity and magnitude that effective response is beyond the capabilities of the State and the local governments and that Federal assistance is necessary. Normally, the PDA is completed prior to the submission of the Governor’s request. However, when an obviously severe or catastrophic event occurs, the Governor’s request may be submitted prior to the PDA. Nonetheless, the Governor must still make the request.

Our government should work for us at all levels (federal, state, local) but ultimately, every individual should seriously take responsibility for their own health and safety.

Get your household ready for Covid 19..CDC


h/t ElleMira