Working Around the Constitution to Solve the Covid-19 Crisis

You may wonder what the Constitution has to do with eradicating Covid-19.  The answer is our resources are contained in two separate governments, each unable to either be in charge or to follow.  Looking from top down here is how it appears. The federal government has extensive resources for dealing with public health issues, but at a distance from the people.  There are three separate agencies/administrations within the Department of Health and Human Services (HHS).  They are the Center for Disease Control (CDC), Food and Drug Administration (FDA) and Public Health Service (PHS).  There are also other important federal resources in the military.  The Pentagon has complete research, diagnostic and treatment capabilities for use by the military anywhere on planet earth, deliverable anywhere.  Each state has a public health department, which is like the federal PHS.  Every state also has public health laboratories, universities, hospitals, and medical professionals giving treatment to the people. The CDC, FDA, PHS and Pentagon are all directly responsible to the President.  The state organizations are responsible to their governors.  The FDA is a wild card.  It exists to pass judgment on all the means of diagnosing, testing, treating, et al in the whole sphere of medical science.  Nothing may be used by medical practitioners that are not approved by the FDA.  The FDA has for its entire existence been a jealous organization, more afraid of doing wrong than accomplishing right.  In ordinary circumstances the FDA’s obstruction is merely costly of time and money. Today, the FDA’s pace has resulted in untimely Covid-19 deaths without proper testing.  Covid-19 has been determined to be a worldwide pandemic by the WHO and as a health emergency by the Secretary of Health and Human Services.  You might expect that emergency status would create more urgency in the FDA, but the law serves to give the FDA more caution.    

Nobody has suggested that inaction is required by the Constitution, but the fact exists that the separation of powers, a Constitutional feature, is sometimes dysfunctional.  Its purpose is to preserve the liberties of the people by having the states check an over-ambitious Congress or President.  The Constitution provides war powers to the President, including placing state militia under control of federal military officers.  That is as close as the Constitution comes to permitting the federal government from encroaching upon the states.  The lack of Constitutional authorization is powerful prohibition of federal use of such power.  The President controls vital resources – money, knowledge, and the ability to devise a comprehensive national plan and to advise the Governors.  Governors of the states have physicians, nurses, hospitals, laboratories, clinics, et al under state control.  This system is not working well in all the states.  Some states have far more comprehensive objectives than others.  This situation will prohibit the entire nation from eradicating Covid-19, and restarting the economy.  To make it work we need to indivisibly combine federal and state resources under a single leader, appointed temporarily by the states (by means of a compact among the states to do so), and the forbearance of the President to approve and step aside on behalf of the federal government.  It is outside the scope of this essay to detail the necessary undertakings in the plan to effectively eradicate the virus and restart the economy without a secondary Covid-19 epidemic.  Important elements of this plan will be to include steps that could, but are not being taken by the all states to prevent growth of the virus behind testing and caring for victims as they are discovered..  

Who might this person be? I have a name to suggest, but my opinion is only to suggest what skills this leader must possess.  He is Dr. Anthony Fauci, if he will take the job.  He reminds me of General Patton who devoted his life in preparation for being a commander in World War II.  After the leader has been thanked and retired, and Congressional hearings have run their course, there should be an appointment of the next leader.  Thereafter, the next person needs to establish the channels of procurement, distribution and reserves of assets so as to fight the next virus.  We might also think ahead to a future non-viral catastrophe, such as nuclear contamination, or other matters.  And, not merely incidentally, a few statisticians from the Census Bureau to work with epidemiologists to design a complete information system to deal with the next on-going event.  Our situation currently is information-poor. April 12, 2020