Some governors are mismanaging COVID and misunderstanding Federalism

In recent weeks, Gov. Ron DeSantis (R) of Florida and several other Republican governors have embraced policies that will increase the spread of COVID not only in their states but in other states as well. For example, DeSantis promulgated an executive order blocking private businesses from requiring proof of COVID-19 vaccination, thereby reducing incentives for individuals to get vaccinated. And he threatened school districts with funding cuts if they follow the CDC guidelines and require children to wear masks. 

To justify such policies, DeSantis, as well as Gov. Gregg Abbott (R) of Texas and Gov. Henry McMaster (R) of South Carolina, have wrapped themselves in the mantle of federalism. But actions such as these betray a fundamental misunderstanding of what federalism means.

Two key principles define American federalism. First, states can generally pursue policies favored by their people, even if other states prefer different policies. But, second, states cannot pursue policies that seriously harm other states.

DeSantis misunderstands federalism by focusing exclusively on the first principle while ignoring the second one. Justifying his COVID policies on vaccinations and masks, DeSantis said that “Florida is a free state, and we will empower our people,” adding that he will not allow the Biden administration to “commandeer the rights and freedoms of Floridians.” Similarly, with respect to his threat on school district funding, his office stated, “Governor DeSantis believes that parents know what’s best for their children; therefore, parents in Florida are empowered to make their own choices with regards to masking.”

There are good reasons for questioning DeSantis’s policies and their justifications, even from a Florida-centric perspective. Businesses might accurately believe that vaccination requirements will result in more customers and higher revenues. And, while parents might know what is best for their children, transmission in schools threatens everyone with whom children come into contact, including immunocompromised people.

Yet, if the negative consequences were confined to Florida’s borders, federalism would be on DeSantis’s side (and the citizens of Florida would have an appropriate remedy at the ballot box).

COVID infections that start in Florida, however, do not stay in Florida.

That is why DeSantis’s actions violate federalism’s second principle. Due to interstate mobility, infections resulting from inadequate policies in Florida will harm other states, burdening their healthcare systems, increasing their healthcare costs, and worsening the wellbeing of their citizens and the state of their economies. The costs of preventable COVID hospitalizations will also be borne by all Americans. And because there is now evidence of breakthrough infections, states that succeeded at getting their residents vaccinated can nonetheless be harmed by the actions of states that fail to take simple actions to discourage COVID’s spread.

More ominously, the longer that large swaths of people remain unvaccinated, the higher the probability that mutations will occur, potentially leading to new variants of the COVID virus that might fully evade existing vaccines. Policies like DeSantis’s ban on businesses’ vaccination requirements make it more likely that fully vaccinated people will require booster shots, which would add greatly to the burdens of states that have achieved high vaccination rates.

The Supreme Court has provided a remedy for the violations of federalism’s second principle.  States seriously harmed by the actions of other states can sue directly in the Supreme Court to enjoin the harm.

In 1906, the Court held that it had the power to hear a lawsuit by Missouri seeking to prevent Illinois from constructing a channel that would have caused sewage to flow into Missouri, potentially exposing its citizens to typhoid fever and other diseases. Over the years, the Court has heard many similar cases, involving the emissions of noxious gases, discharges of polluted water, and dumping of garbage. A state’s interest in protecting its residents from a spreading virus are no different than its interest in protecting them from pollution.

Given this well-established case law, any state harmed by the actions of states like Florida could file an action in the Supreme Court.

Unfortunately, such proceedings take years to resolve and therefore might not provide a timely remedy. But courts are not the only institution responsible for safeguarding the Constitution, of which of the structure of federalism is a key component. All branches of government share this responsibility.

Congress has a great deal of skin in this game, given the enormous federal expenditures to develop vaccines and address the economic consequences of COVID. Florida’s spike in cases is already diverting federal resources such as ventilators. Some Republican leaders, including Senate Minority Leader Mitch McConnell (R-Ky.) and Senator Bill Cassidy (R-La.), a physician, have issued strong statements urging vaccination, contrary to the approach of DeSantis and other like-minded Republican governors. And even if Congress does not act, the Executive Branch can exercise its discretion over federal funds or take other measures to mitigate adverse interstate consequences. Consistent with this responsibility, President Biden has already indicated that he would replace any school funding DeSantis cuts over mask mandates, take legal action against governors who stand in the way of such local mandates, and cut off federal aid to nursing homes that don’t require their staff to be vaccinated.

DeSantis recently told President Biden that he did not want to “hear a blip about COVID from you,” adding: “Why don’t you do your job?” Contrary to DeSantis’s rude suggestion, opposing governors’ actions when they inflict serious harms on other states, and thereby defending the Constitution (including federalism’s second principle) is precisely the President’s job.

Richard L. Revesz is the AnBryce Professor of Law and Dean Emeritus at New York University School of Law.