Governors have the duty — and power — to protect the public
President Trump’s limited use of the Defense Production Act has left states desperate for medical supplies to fight the COVID-19 pandemic. As Trump himself has warned, governors cannot wait for the federal government to lead the way. Trump loyalists defend federal weakness in this time of crisis by arguing that the best recourse for states is to persuade local businesses to voluntarily produce needed equipment. I would argue that governors can use their own legal muscle to force manufacturers within their states to produce N95 masks, ventilators, test kits and possibly prescription drugs.
Governors have the ability to take these extraordinary steps through their police powers — the inherent power of states to protect the public’s general health, safety and welfare, as elucidated in state constitutions.
In the absence of a quick and robust federal response, governors need to seize an additional weapon in this fight. Even if they do not compel in-state manufacturers, just the threat of doing so could help them negotiate with companies or push the Trump administration to do more.
Some companies already in the personal protective equipment (PPE) industry are doing their part to increase production, while some admirable outsiders, ranging from popular apparel brands to small dressmakers, are helping voluntarily. Yet this help is not enough. Every day, medical professionals risk their lives without proper protective gear. When our front-line heroes become patients, our country’s capacity to fight the virus is reduced. Additionally, the Centers for Disease Control and Prevention’s (CDC) belated recommendation that the public wear face coverings will only exacerbate the shortages.
To minimize interstate supply chain disruption, governors should not force local PPE manufacturers to sell gear within their state. Instead they should compel companies that can quickly alter their production to PPE to do so. In China, for example, 3,000 firms started creating masks, ramping up daily production from 20 million to 110 million masks per day, all in one month’s time. In-state manufacturers required to switch their production would be paid by the state and thus able to afford raw materials.
Of course, governors can only compel manufacturing within their state borders. Hence, states where manufacturing thrives, such as California, Illinois, New York, Ohio and Texas, have the greatest capacity to meet their equipment needs.
Lawsuits will follow. Corporate plaintiffs will claim the states are violating the constitutional protections against uncompensated “takings” by the government, interference in interstate commerce, federal preemption, or others. But as New York Gov. Andrew Cuomo noted about being sued frequently, “I wish you could become immune to this virus the way I’ve become immune to NRA lawsuits.” The near certainty of future lawsuits does not negate the ethical imperative for governors to act, nor does it weaken the legal basis for their authority to do so. As with any executive order or legislation, there is a risk that a judge would issue a preliminary injunction against this effort. Yet this uncertainty does not stop reform in regular times and should not do so during a pandemic. The law is supple and responsive to changed circumstances, which gives judges leeway.
Moreover, a state’s offer to pay just compensation for the assistance would significantly blunt the force of potential claims. Some critics will inevitably point out that many states are required to balance their budgets, imperiling such a move. Yes, financial constraints are real, but this is not the moment to suggest money trumps lives.
It’s a mistake for governors to act as if they are out of options. Maryland Gov. Larry Hogan, chairman of the National Governors Association, has led states’ charge to push Trump to coordinate the purchase of scarce supplies and increase production, to little avail. After enacting a stay-at-home order on March 30, Hogan said he had used “one of the last tools in our arsenal.” Not so.
The tool I propose resembles New Jersey Gov. Phil Murphy’s action enabling police to requisition existing PPE stockpiles from businesses, educational institutions and others. It’s a far cry from Rhode Island Gov. Gina Raimondo’s decision to send police door to door in search of New Yorkers — a practice that raises constitutional concerns.
Using state police powers to compel manufacturing is not as legally certain as established and tested doctrines such as first amendment protections, yet it is both ethically and legally defensible. State laws and the division of authority between governors and legislatures vary from state to state, but all states have a duty to protect the public. Given the extraordinary challenges of this pandemic and the dereliction of federal duty at the top, I urge governors to explore this idea. It could save lives.
Martin Skladany is an associate professor of intellectual property, law and technology, and law and international development at Penn State Dickinson Law. He is the author of the forthcoming “Copyright’s Arc” (Cambridge University Press, 2020).
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