The new war of the states, and why we might all lose

By MICHAEL H. SAHN //

Fighting the war against COVID-19 has led to debate about the respective roles and responsibilities of the federal government and the States in dealing with these unprecedented challenges.

The question is whether the federal government, the States, groups of states, or even local municipalities should lead the battle against the virus. Essentially, we are engaged in a debate about the U.S. Constitution.

Under the Constitution, the president is the “Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.” The Constitution also gives Congress the power to declare war, and “provide for the common Defense and general Welfare of the United States.”

We commonly think of this as meaning that the president and the federal government, through Congress, lead the country in a time of war. But the Tenth Amendment, part of the Bill of Rights, provides that the powers not delegated to the United States by the Constitution, nor prohibited to it by the States, are reserved to the States, respectively, or to the people.

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This embodies the principles of federalism and States’ rights. It means that the States themselves have the broad policing power to protect the health, safety and welfare of their citizens, and to regulate behavior and enforce law and order within their borders.

What happens, though, when we are at war against a pandemic disease – an enemy that knows nothing of state borders?

Who’s in charge? Who issues the orders and sets the strategy? Who buys, and distributes, the provisions and equipment? Who deploys the army of healthcare professionals and essential workers to the front lines? Who’s commander-in-chief?

Who declares war?

These are the very big issues that are playing out in the media and on the national stage every day. Decisions on social distancing and stay-at-home orders; on opening or closing non-essential businesses and schools; on implementing virus testing and managing its immense logistics; on rationing test supplies and protective gear for healthcare workers, not to mention precious ventilators; even decisions on regional food supplies have all fostered contentious disagreement between the federal government, groups of states and individual states.

There is also no single agency or governmental authority deciding on medical-treatment protocols. Most importantly, no single authority is coordinating a plan on when or how to reopen the country for business.

If a foreign army or band of rogue terrorists attacked the United States, there would be no debate on how to fight back, and which levels of government were in charge of what. But this war is different, and it will forever change our perception of governmental responsibilities.

Having lost more Americans to the virus than the Vietnam War, given new models that predict the current national death toll will likely double, now is the time for Americans to unite in battle. The virus must bring us together, not divide us.

It’s clear that divergent strategies and plans will only lead to more sickness and death. We can, and should, assemble a national coalition of states and the federal government, working hand-in-hand in collaborative partnership, to protect all of us and defeat this disease.

Failure to act together will only bring about the gravest consequences for our country.

Michael H. Sahn, Esq. is the managing member of Uniondale law firm Sahn Ward Coschignano, where he concentrates on zoning and land-use planning, real estate law and transactions, and corporate, municipal and environmental law. He also represents the firm’s clients in civil litigation and appeals.