I am now thirty-five years old. I am starting to feel old. I can think wistfully now. I can think about the time when Republicans believed in state’s rights. But my, those times are gone. I’m not just talking about a single person (the president) battling California over auto emissions standards, or the same person threatening to “liberate” Michigan from its governor. It’s not just Donald Trump anymore.
The New York Times reports that Congressional Republicans are “suggesting that any further aid to states would be conditioned on indemnifying businesses against lawsuits.” Along similar lines, Attorney General Bill Barr suggested that he will sue states for “undue interference with the national economy.” Donald Trump has already sought to protect meat processing plants from liability on the basis that they constitute “critical infrastructure.”
Should this happen?
If this happens, states would lose their ability to protect consumers, workers, and businesses that want to ensure safety without being at a competitive disadvantage. Consumers would not be able to shop with confidence. Workers would not be able to work with confidence. Conscientious business would be forced to compete with rivals that disregard safety with impunity.
This is not just a state’s rights issues. These actions are also bad news for workers, consumers, and socially responsible employers because they reward employers who prefer pennies over lives. In general, the workers’ compensation system evolved to protect workers from the risk of injury, and employers from the risk of lawsuits. Both Florida and North Carolina already provide immunity to employers who secure sufficient workers’ compensation coverage-with one exception.
In Florida, an employer is not immune when a danger is “virtually certain” to cause injury, meaning that an accident will result “every-or almost every time.” An employee struck by coronavirus will have difficulty meeting this standard. Regardless, for employers who do not participate in the workers’ compensation system and fail to take necessary precautions, there should be consequences when workers contract coronavirus.
Can this happen?
It’s not clear whether the federal government can rightfully demand that states open up in return for coronavirus financial assistance. This is because we have not been in this kind of situation before-where the federal government and the states are openly battling each other over the response to an acute public health crisis.
States often have to go along with the schemes of the federal government in order to get federal funding, but there are three important limitations to the federal government’s spending power. If any one of these requirements are not satisfied, the federal government loses its ability to get states to do things for money.
First, Congress must use its power of the purse string for the “general welfare.” Second, the conditions imposed on stats must be unambiguous. Third, the conditions for states’ receipt of funds must be related “to the federal interest in particular projects or programs.”
Although the coronavirus situation is unprecedented, the Attorney General tripped up on states’ rights just a few weeks ago in a federal district court in Colorado. The Attorney General failed on the final “relatedness” requirement when he tried to pressure the State of Colorado to crack down on immigration in exchange for state criminal justice funds. Actually, the Attorney General had about ten other similar stumbles, all documented in the Colorado decision.
In the most recent case, the federal Colorado court found that states’ cooperation with the feds on immigration and the states’ receipt of federal law enforcement funds are not “related.” Specifically, the Colorado court found that criminal justice enforcement does not “in any way” rely on immigration law enforcement, even though “immigration enforcement depends on and is deeply impacted by criminal law enforcement.”
The coronavirus Congress may encounter a comparable stumbling block. State-imposed social distancing restrictions do not rely on emergency health supplies like ventilators and tests, even though the effectiveness of these supplies may depend on state public safety measures. If state immigration enforcement is not related criminal justice, it is difficult to imagine how state social distancing measures are related to, say, coronavirus testing and ventilator funds.
We don’t know how either program will play out. The Attorney General will likely appeal the trial court’s immigration decision. And as far as Congress’s use of purse strings to fight state stay at home orders, that’s a new issue. We do not know if farms and ranches will face competitive pressures to ditch social distancing measures. The legal fate of safety of our businesses and our food supply systems remain uncertain.
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