Earlier this year, Public Health Law Watch, in collaboration with members of the George Consortium and other partner organizations, hosted a series of legal briefings related to COVID-19 and legal and policy issues associated with the global pandemic. Experts and scholars joined us for bi-weekly livestreamed discussions on these issues. We invite you to read the summaries of selected episodes below! And, enjoy relistening to the series (linked below and archived on our #COVIDLawBriefing webpage).
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4/7/20: Issues and Boundaries of Federalism
Mod: Nicolas Terry
Speakers: Wendy Parmet, Elizabeth Weeks
Professor Parmet and Professor Weeks of the University of Georgia discussed where the leadership in the COVID-19 response had to come from in this weeks #COVIDLawBriefing. While their laws are supreme, the federal government is limited in what they can do vs. the powers of states. This means that although the federal government has the final say when they pass a law, not everything falls under the discretion of Washington. In fact, Professor Parmet discussed how traditionally public health was part of the job of the state government. Going back to 1824 in Gibbons vs. Ogden, quarantine and health laws were used as examples of what would fall under the state's purview. Despite this precedent, Parmet discussed the large impact that the federal government has had in regulating public health in both taxing pharmaceuticals and working on medicaid. This has resulted in public health falling under the “overlapping powers” of the state and federal government.
Then the conversation pivoted to whether the federal level could either issue stay-at-home orders or stop them from being implemented. Although it might be advisable, a nationwide shelter in place order is likely an overstep of federal powers because there is no clear power given in the Constitution that would allow them to do so. Without it being specifically enumerated in the Constitution, the federal government must abdicate power to the states. The interstate commerce clause is perhaps the best precedent for the federal level to intervene but even then this did not clearly fall into that bucket. Professor Parmet suggested that the federal government could offer “carrots or sticks” to states that followed or ignored their lead. This could be done with the federal spending power where the federal government could offer funding for states that followed their plans. The discrimination against “out of staters” and the barriers based on residency also posed a problem for the Professors. Especially in the Northeast, states have tried to stop residents from other states like New York from entering their states. While constitutionally troubling, it is also not based on sound public health evidence. As Professor Parmet said “the virus doesn’t attach based on your license plate.” Check out the rest of what they had to say here.
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Public Health Law Watch’s COVID Law Briefings are co-sponsored by the Center for Health Policy and Law at Northeastern University School of Law, the Center for Public Health Law Research at Temple University Beasley School of Law, the Network for Public Health Law, and the APHA Law Section.