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Why President Biden can’t force states to vaccinate teachers – or anyone else

WASHINGTON – President Joe Biden wants to vaccinate teachers to speed school reopening, but more than half of states are not listening and haven’t made educators a priority – underlining the federal government’s limited powers, even for a long devastating pandemic.

“I can’t determine nationally who is in line, when, and first – it’s a decision states make,” Biden said during a visit to a Pfizer factory in Michigan on Friday. “I can recommend.”

Under the Constitution, the powers of the federal government are extensive, but not all. States have always retained control over public health and safety, from police crimes and infectious disease control to the distribution of coronavirus vaccines that Washington helped create and controls the supply of.

The fact that the United States has the highest death toll in the world from the pandemic has renewed criticism of the federalist system which has allowed states to do whatever they want, with very different approaches and very different results. different.

“There is a pretty strong argument that the confusion we have created has in fact cost human lives,” said Donald Kettl, professor at the Lyndon B. Johnson School of Public Affairs at the University of Texas and author of “The Divided States of America: Why Federalism Doesn’t Work.” “Sometimes we pay a price high enough to let states go their own way.”

He added: “The founders were very aware that it was a collection of states that had succeeded in winning the revolutionary war. If you take that forward, you end up with this patchwork of different vaccine priorities, cloaked mandates, and lockdown rules. , because the federal government cannot force the states to do things. “

The federal government and the states have been in an almost constant bitter struggle for 230 years – sometimes fiercely, as during the Civil War – often arbitrated by the Supreme Court, which has ruled that it is the states that have “the power to ensure health. public, safety and morals ”of their residents.

Federal courts – not the federal government – have been able to exercise their will over states on issues ranging from school desegregation to abortion to the right to vote. But schools, abortion clinics, and elections are still organized or regulated by states.

The federal government has spent the past two centuries trying to find creative ways to push its agenda on the states, sometimes swinging the promise of federal funding like a carrot – and the threat of holding it back like a stick.

For example, to build the interstate highway system, the federal government promised to pay 90% of the bill if the states pay only 10%. The catch was that roads had to meet regulations that started out small – bridges had to be high enough to allow tanks to pass under, to name one requirement – but quickly grew to encompass the uniform road system. nationally that we take for granted today.

During the oil crisis of the 1970s, when gas prices skyrocketed amid tensions in the Middle East, Congress wanted Americans to slow down to save fuel. But he couldn’t institute a national speed limit, so lawmakers tried to force states to do so, passing a law to withhold highway funding from states that did not set the maximum speed limit at 55 mi. / h. (Congress repealed the law in 1995.)

Washington made a similar decision in 1984, forcing states to raise the drinking age to 21 if they wanted money for freeways.

But just as often, the courts have opposed what they see as Washington’s exaggeration.

“In summary, the delivery of public health interventions is, in reality, at the state and local levels,” said Josh Michaud, associate director of global health policy at the Nonpartisan Family Foundation. Kaiser. “It is the model since very early in our republic”.

The Affordable Care Act is a mishmash of incentives and mandates because, in part, it was designed to conform to the complexities of American federalism, for example giving states the responsibility of creating their own scholarships. insurance.

The Supreme Court almost killed the law to unconstitutionally compel states to expand their Medicaid programs. The court found a workaround, like the highway funding trick, in which the Medicaid expansion became a federal incentive, instead of a federal mandate. But 12 states have still legally refused to join the expansion.

When it comes to infectious disease control, the Centers for Disease Control and Prevention provides advice on health matters to states, which delegate much of their authority even further to counties and municipalities.

“In the positive sense, it means the system can be sensitive to local conditions depending on who knows them best,” Michaud said. “But it also leaves open the possibility of inequalities and increased risks of the virus due to the lack of a coordinated and effective response.”

Last year, South Dakota defied federal guidelines against mass gatherings to allow a large motorcycle rally to take place. It has since been linked to more than 250,000 coronavirus infections in the country.

During the 1918 flu pandemic, Philadelphia allowed a massive parade to unfold and its death toll topped 10,000, while St. Louis banned mass gatherings and maintained its death toll in below 700. Washington played little role in this pandemic – the CDC was not even formed until 1946 – and President Woodrow Wilson never made a public statement about the virus, which has killed more than 650,000 people in the United States

Today, states can institute masked mandates, but many have questioned the constitutionality of Biden’s proposed national mandate. It ended up issuing mask warrants for federal property and interstate travel, like planes and buses, over which courts have long ruled that the federal government has authority.

The CDC cannot legally force states to roll out Covid-19 vaccines with special priority, said Sarah Gordon, assistant professor of law and health policy at Boston University.

“They’re actually pretty limited in what they can do,” Gordon said. “Federalist separation between state and local public health authorities in the United States has, on several occasions, crippled a swift and effective response to a pandemic.

In theory, Biden could cut state vaccine supplies, which former President Donald Trump threatened to do in response to criticism from New York Gov. Andrew Cuomo, but that would cause an uproar, and the new administration has instead chose a simple formula. allocation based on the adult population of each state. And it can set up its own vaccination centers in areas with eligible populations it is trying to target.

But even some Democratic governors have chosen to ignore federal guidelines and set their own vaccination priorities.

The CDC is calling to vaccinate all essential workers, including teachers, before moving on to those under 75. But several states have chosen to vaccinate people over 65 and those with pre-existing conditions first.

“We’re going to rely on the CDC’s definition of an essential worker. But that’s a lot of people, including teachers,” Connecticut Gov. Ned Lamont told the Hartford Courant editorial board. “I’m not sure you move Grandma to the back of the line so you can move [teachers] cheeky.”

Jon Valant, a senior researcher at the Brookings Institution who studies education policy, said Biden’s most effective tool in pushing states to vaccinate teachers may be the Bully’s Chair.

“What the federal government can do is mostly a combination of advice, cover and pressure,” he said. “Teacher unions can be a lightning rod, and if you put teachers first because the CDC or the federal government says so, it helps protect you from criticism.

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