//  5/4/20  //  Commentary

Who should buy ventilators, N-95 masks, PPE, and more?

“Governors are supposed to be doing a lot of this work,” complained President Trump. “The federal government is not supposed to be out there buying vast amounts of items and then shipping. You know, we’re not a shipping clerk.”

Well, that depends on how we think about the division of labor in a federal system. Here’s a sensible approach: let the states deal with local problems, but not problems they’re incompetent to regulate on their own. Take air pollution. No point telling New York to regulate its own air if pollution from Ohio blows in on prevailing westerly winds. Then we should kick the problem up to the feds.

But the states are also incompetent to track down and purchase huge supplies of health equipment. No wonder Democratic Governor Andrew Cuomo laments the absurdity of states bidding against each other, bidding against FEMA too. (No, that’s not a partisan swipe at Trump. Listen to Republican Governor Mike DeWine: “You’ve got 50 states and the federal government all chasing the same companies. It’s crazy.”) What happens if we insist that states are entrusted with police powers to promote health? We stuff the bank accounts of profiteering manufacturers, and we misallocate sorely needed gear.

So invoke the Defense Production Act, do something else: whatever. But get the feds on the case, because nothing good comes of announcing that it’s the states’ job. What could justify the stubborn insistence that this sort of thing just isn’t the job of the federal government? Why assign a problem to actors who can’t solve it?

The canonical answer is state sovereignty. At every juncture of American history, some have insisted that the states never relinquished undivided sovereignty. “The States,” intoned John C. Calhoun, “have retained their separate existence, as independent and sovereign communities.” Others have conceded that we’ve divided sovereignty between the federal government and the state governments—that was Madison’s view, and eventually Hamilton’s, after he gave up the claim that the new national government was the sole sovereign—but have thought that the dividing line is somehow hardwired. Constitutional lawyers will be happy to explain to you that the federal government enjoys only the powers enumerated in Article I and that the states have more or less indefinite police powers to promote the common good. If you read the enumeration narrowly, as conservatives like to, you’ll think that it’s neither here nor there if the states are competent to regulate. It’s their job. That’s what the constitutional scheme mandates.

If some Americans have always rallied to state sovereignty, others have been decidedly skeptical. George Washington scowled at the prospect that commitments to “the darling Sovereignties of the states” would scupper the new union. Abraham Lincoln maintained, “Whatever concerns the whole should be confided to the whole—to the General Government; while whatever concerns only the State should be left exclusively to the States.”

Lincoln’s closing flourish is wonderfully dismissive: “That is all there is of original principle about it.” You can tie yourself up in knots about the essential nature of sovereignty. You can imagine that you’re onto something deep or fundamental about politics, that only blundering innocents would imagine that we are free to negotiate and renegotiate the jurisdictional boundaries between federal and state governments, that we should be resourceful, even opportunistic, in trying to solve our problems. “States in our federal government are sovereign governments,” declares Professor James Hodge. “They have sovereign powers, and these sovereign powers are profound.”

Shades of Lewis Carroll’s Snark: “What I tell you three times is true.” You might be tempted by Hodge’s repeated invocation, incantation, of sovereignty. Resist the temptation. Can you defend what current constitutional law has to say about the jurisdiction of the federal and state governments? Sure. But not by underwriting it with sovereignty talk. That’s just blather. Put it this way: we could have a merry time going back and forth about the reach of the commerce clause, state police powers, the tenth amendment, and more. I like that stuff as much as, maybe even more than, just about anyone I know. But my heart sinks every time those discussions lapse into claims about the essential nature of sovereignty. And the discussions lapse that way all too often. The problem with state sovereignty, with sovereignty talk more generally, isn’t that it’s been used to underwrite atrocious agendas: chattel slavery, opposition to the great civil rights acts of the 1960s, and more. After all, what political theories, what political concepts, haven’t been used in bad causes? The problem is that sovereignty doesn’t do even a halfway decent job of orienting us toward our problems and possibilities. It leads to political stupidity. And political stupidity is often pernicious. Sometimes it’s lethal. Did someone say “COVID-19”?

In his coronavirus press conferences, Trump says other things that summon up sovereignty talk. About those pesky governors, you know, the ones bugging him for medical gear? “I want them to be appreciative.” “If they don’t treat you right, I don’t call.” About the presidency? “When somebody is the president of the United States, the authority is total. And that’s the way it’s got to be. It’s total.” “I have absolute authority,” he added, though he demurred that he might choose not to use it. Wait, what happened to the governors’ obligation and authority to secure their own medical gear? When Trump ricochets between affirming his absolute authority and shrugging that the governors have to step up and do their jobs, he sounds like he’s in the clutches of the claim that sovereignty is indivisible, but he’s unsure where it’s lodged. And notoriously Trump has long chafed at the thought that he can be held legally accountable for what he does: Department of Justice lawyers and his personal attorneys alike have pressed some startlingly radical arguments about that.

You might diagnose these repellent claims as another symptom of the president’s exquisitely thin skin. Or maybe they represent his confused grasp of Attorney General Barr’s attempts to explain the theory of the unitary executive. But these claims comprise a stunningly clear recapitulation of the classic theory of sovereignty, a theory born centuries ago to solve problems very different from those we face today. To procure social order, says the classic theory, we need a government that enjoys the immense dignity of unlimited, undivided, and unaccountable authority. You might think that Trump is chattering idly. I’d rather see him as reasserting an obsolete and deeply pernicious view. In championing such a view today, Trump is by no means alone.


This post is written by Don Herzog, the Edson R. Sunderland Professor of Law at the University of Michigan. It was originally posted at the Yale University Press Blog.


You can purchase the book, Sovereignty RIP, here.

The Affordable Care Act Does Not Have An Inseverability Clause

11/5/20  //  In-Depth Analysis

Contrary to challengers’ claim, Congress nowhere directed the Supreme Court to strike down the entire ACA if the individual mandate is invalidated. Congress knows how to write an inseverability directive, and didn’t do it here. That, combined with Congress’s clear actions leaving the ACA intact and the settled, strong presumption in favor of severability, make this an easy case for a Court that is proud of its textualism.

Abbe R. Gluck

Yale Law School

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3/30/20  //  In-Depth Analysis

HHS has recently tried to essentially repeal an important rule that prevents the Department from discriminating across its many programs. But, as contributor Harper Jean Tobin explains, its rule making is both substantively and procedurally illegal.

Harper Jean Tobin

National Center for Transgender Equality

COVID-19, the ACA, and the Role of the Federal Government

3/23/20  //  Commentary

Congress has a crucial role to play in keeping us safe from COVID-19. Notwithstanding baseless continued attacks on the Affordable Care Act, Congress is fully empowered to legislate on these issues.