71 Am. U. L. Rev. 65 (2021).
The COVID-19 pandemic has exposed significant weaknesses of the U.S. federalist system in controlling major infectious disease threats. At the root of American failures to adequately respond is a battle over public health primacy in emergency preparedness and response. Which level of government—federal or state—should actually “call the shots” to quell national emergencies? Constitutional principles of cooperative federalism suggest both levels of government are responsible. Yet real-time applications of these principles, coupled with dubious national leadership, contributed to horrific public health outcomes across America. No one seeks a repeat performance of U.S. COVID-19 response efforts to forthcoming major health threats. Avoiding it entails substantial changes. Expansive interpretations and executions of core federal emergency powers illuminate new paradigms for modern public health emergency preparedness and response where states remain key players, but the feds are primary play-callers.
* Peter Kiewit Foundation Professor of Law; Director, Center for Public Health Law and Policy, Sandra Day O’Connor College of Law, Arizona State University. Special thanks to Emily Carey, J.D., for her excellent research, editing, and formatting assistance, as well as Jennifer L. Piatt, J.D., Claudia M. Reeves, J.D., and Hanna Reinke and Nora Wells, J.D. Candidates (May 2022), for their additional research, edits, and reviews at the Center for Public Health Law and Policy, Sandra Day O’Connor College of Law, Arizona State University (ASU). This Article is based in part on the brief commentary, James G. Hodge, Jr., Nationalizing Public Health Emergency Legal Responses, 49 J.L. MED. & ETHICS 315 (2021) https://papers.ssrn.com/sol3/papers.cfm? abstract_id=3806811.