April, 2020
Washington – If more Covid-19 testing is the sine qua non of saving tens of thousands of lives, and re-opening state and national economies, then measures commensurate with these urgent needs must be undertaken immediately.
It is clear that the president will not act quickly enough. He continues to decline to use powers given go him under the Defense Production Act that would create and distribute testing supplies.
Could governors implement the provisions of the DPA if the president won't? Yes. the police powers of the states, affirmed by the Tenth Amendment, can be employed by individual governors to direct the actions of facilities that produce testing supplies in their respective states. Acting together under a constitutionally recognized Interstate Compact, governors could coordinate their actions.
The Defense Production Act itself (see the DPA here) could be the model for a new, free-standing Interstate Compact on viral disease testing, amended as necessary to recognize states' police power authority.
Who would pay? The states clearly are not in a position to do so, but the Federal Reserve could finance the costs by purchasing state-created obligations through the FOMC, as is done for mortgage-backed securities, or through other means such as is done to facilitate municipal credit. The Federal Reserve does not need the approval of Congress or the president to do this.
Quest Diagnostics is headquartered in New Jersey and could be directed by the governor of New Jersey. Qiagen's regional headquarters is in Maryland and could be directed by the governor of Maryland, who also happens to be the chairman of the National Governors Association, which could coordinate an interstate effort. Other test-producing facilities are scattered throughout the country in states with governors who could act decisively to save lives and to save their economies.
Inasmuch as we are in dire circumstances, states could also, individually or collectively, start to look to other nations for help. Some nations have ramped up testing and are well ahead of the U.S. in knowing how to get the job done. The Netherlands and Germany are prime possibilities. Germany, led by a scientist as chancellor, has a national testing regime in place with adequate supply chains. Qiagen is actually a Dutch company. Many of its facilities in Maryland are just minutes away from NIH. The Constitution (Article I, Section 10) recognizes that individual states may need to enter into agreements with foreign powers if they are in "such imminent Danger as will not admit of delay." A dithering president, fomenting domestic insurrection against states, has doubtless created just such a situation.
We are in the midst of a national catastrophe. Extraordinary times require extraordinary measures. Our Constitution recognizes that; our state leaders must act accordingly.
