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Why US has worst COVID-19 in developed world: [redacted] failed to use Defense Production Act under authority of Commerce Clause of the Constitution.

2020-11-19

The US has the worst outbreak of COVID-19 of any developed country in the world. Despite our status as the most medicalized country with the most financial resources, we have been afflicted with the highest total of patients with COVID-19 and the worst death rate as a proportion of our population.

Federal Government has been absent from pandemic response

The reason? No organized federal response to the pandemic was ever made. Our president specifically told the states that they were responsible for controlling the disease individually. The Centers for Disease Control (CDC) was not allowed to formulate a pandemic response plan, nor to properly organize a testing, tracing, and data overview system.

As a result, individual states have been competing with each other and with the federal government to obtain personal protective equipment (PPE: masks, gloves, gowns, hand sanitizer, etc.)

The collection of data showing how many infections and deaths have occurred has been poorly organized. Private news media has been at the forefront of data collection. In a case where data collection was under the control of the CDC, it was removed from the loop and a private company was substituted. As a result, data collection was severely impaired for a time. Only after an outcry was the CDC reinstated as a part of data collection.

At the same time that the federal government has done little to help organize a response to the pandemic, some federal officials have failed to encourage personal responses like wearing a mask in public. The president has repeatedly denigrated people for wearing masks and made false statements minimizing the extent of the outbreak.

Warp Speed program for vaccines only exception to federal inaction

The only organized federal response has been the “Warp Speed” program that has subsidized private drug companies in their efforts to develop vaccines and therapeutics. Some companies have received large ($4 billion or more) payouts for development and pre-purchase of these not-yet-developed vaccines. Other companies have developed vaccines and drugs on their own, using their own not-inconsiderable funds.

Development of vaccines has proceeded apace, with the new mRNA-based vaccines already having two candidates already nearly available (although not in time for the presidential election.) The two mRNA-based vaccines have reported near-miraculous 95% efficacy in Phase III trials. Both will be available in the next couple of months under Emergency Use Authority (EUA.)

There are still shortages of N95 face masks and other protective equipment. Drugs that show efficacy are still in short supply (monoclonal antibodies especially.)

At the same time, the virus is spreading exponentially, burning through the US population so fast that COVID-19 is now the third-leading cause of death (behind only the traditional killers, cancer and heart disease.)

Why is there such rapid spread of COVID-19 and why do we still have shortages of basic equipment? The federal government has not taken responsibility for organization or supply of needed drugs and equipment.

Why we should have controlled it

There are two reasons why the federal government should be able to be the primary force behind the response to this pandemic: first, the Commerce Clause of the Constitution, and second, the Defense Production Act.

The Defense Production Act (DPA) allows the federal government to order private companies to produce equipment needed in emergencies (first used in the Korean War.) The DPA provides that the president can order production and set a fair price (allowing for significant profit) at which the government will purchase all the equipment that it orders to be produced (whether or not it is ultimately used.)

The DPA has only been used in one instance this year: to order the production of ventilators. It should have been used for production of PPE, but it was not. No reason has been given for this failure, but there is suspicion that the federal government is afraid to be seen ordering production to private industry.

Why the DPA is constitutional

There should be no hesitation in using the DPA for the first reason given above: the Commerce Clause of the US Constitution. Under this clause, the federal government has the power to regulate commerce that potentially crosses state lines. It reads as follows:  “The Congress shall have Power… to regulate Commerce with foreign Nations, and among the several States, and with Indian Tribes.” 

Supreme Court decisions have interpreted the Commerce Clause to mean that Congress can pass laws that regulate trade between states and control the conditions under which things are manufactured that may be sold between states. In addition, the Court has decided unanimously that this clause can be used to prohibit price-fixing schemes among meat packers in Chicago (1905) as a restraint of interstate commerce, regulate labor standards (1938), and prohibit racial discrimination and segregation “in places of public accommodation involved in interstate commerce” (1964.)

The Supreme Court also limited the Commerce Clause in certain cases, for example striking down a law that “prohibited the possession of a firearm within 1,000 feet of a school (1995).” In another controversial case, “In United States v. Morrison (2000), the Court held that the commerce clause did not permit Congress to enact a federal civil remedy—i.e., a ground for civil lawsuits in federal courts—for acts of gender-motivated violence as part of the Violence Against Women Act (1994).”

“In 2005, however, the Court held in Gonzales v. Raich that enforcement of the federal Controlled Substances Act (1970) against the intrastate noncommercial possession, production, and use of medical cannabis (medical marijuana) in compliance with a California state law was consistent with the commerce clause because such activities could substantially affect the supply of and demand for marijuana in the illicit interstate market.”

(quotes in the last three paragraphs are from the Encyclopedia Britannica article on the Commerce Clause and the next paragraph is a paraphrase of text from the same entry.)

In another, even more controversial case, the Supreme Court held that the Commerce Clause did not apply to the Patient Affordable Care Act (PACA or “Obamacare”) because the law prohibited commercial inactivity (not buying an insurance policy) rather than activity. The Court upheld that law on the basis that it was part of Congress’s taxing authority– the law provided a financial penalty for not buying insurance. The PACA goes before the Supreme Court again in oral arguments very soon.

The bottom line is that the DPA involves interstate commerce and thus lies well within the Congress’s power to regulate. There is no logical reason for the federal government to fear that using the DPA will be looked upon with disfavor by private industry– they have the power and the moral right.

This means that it is well within the authority of the federal government to take charge of industry’s production of needed goods during an emergency. It is also clear that only the federal government has sufficient money and organization to provide plans and infrastructure to respond to the pandemic. The federal government in this case has abandoned its responsibility and allowed the pandemic to spread unchecked by not leading the country’s fight against the virus.

He has abandoned his responsibility

Thus, in a very real sense, the president is responsible for the illness and death that we have experienced over the last nine months. A conservative estimate of the death and destruction that could have been avoided can be made by comparing the deaths per capita in the US and Canada. Our neighbor to the north has experienced roughly half the death rate that we have.

So we can say, with justification, that the president is culpable in the deaths of over a hundred thousand Americans and the sickness of five or six million more (some asymptomatic, others gravely ill, and 5-10% afflicted with what is often called “long COVID”– six months or more of disability.)

(photo by Wynn Pointaux courtesy of pixabay.com)

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