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New York Gov. Andrew Cuomo has spent the past couple of weeks essentially begging the federal government to help fill an anticipated shortfall of more than 20,000 ventilators as COVID-19 ravages his state. These machines, which push air into people too sick to breathe for themselves, are turning into our nation’s most precious commodity. On Tuesday, Cuomo said that states are essentially bidding against each other, almost like eBay, for lifesaving materials. On Thursday, he announced that his state would run out of ventilators in six days at the current burn rate and he had stopped putting his hope in the feds. “I don’t think the federal government is in a position to provide ventilators to the extent the nation may need them,” Cuomo said. “Assume you are on your own in life.” On Friday, Cuomo stated more bluntly that “the market has literally collapsed” for the needed medical equipment and that the feds did not have enough equipment on hand to give to the states. Senior presidential adviser Jared Kushner all but confirmed that New York would be on its own, suggesting he didn’t believe the governor’s numbers. “People who have requests for different products and supplies, a lot of them are doing it based on projections which are not the realistic projections,” he said. New York and other states seeking these—and other—much-needed supplies, though, have another option they may have not considered.
States need not depend entirely on the president, or Congress, or even the courts. Instead, the Constitution lets the states help each other.
It’s a little buried, and a little obscure, but the Constitution has a provision to let states form a “compact” with each other. New York and New Jersey’s Port Authority, for instance, is an interstate compact. But there are hundreds more—governing everything from agriculture to radioactive waste to wildland fire protection.
There’s even a compact for all the states and federal territories to help each other during a crisis, the Emergency Management Assistance Compact. The indication from Cuomo, though, is that existing state compacts are not helping in this moment.
A new compact could resolve this situation. Here’s how the plan might work. States, as many as possible, could essentially draw up a contract to work with each other. It could look however they want it look. But to blunt the harm that’s rightfully driving Cuomo to apoplexy, the states would probably need a couple of basic features: bid as a group, and then shuttle the lifesaving machines between the states to whatever coronavirus hot spots are exploding. What’s the goal? To stop all of the bidding against one another while still giving all states as good a shot as possible to help the sick people in their borders.
There’s one more feature, crucial for at least the first few states that join together: They need to pony up a lot of cash to outbid everyone, especially the other states. So the startup states should probably be the ones motivated to act: say, New York, California, Ohio, and Maryland join together.
The other states need to understand that, if they stay on their own, their residents will lose out. That will give any doubters a big incentive to join the new compact. As more states sign up, the outliers will become less and less successful securing the equipment they need and so will face more and more pressure to sign on too. Eventually, the states, working together, will become a behemoth buyer (or as antitrust lawyers might say, something approaching a “monopsony”). With that sort of market power, the states might well be able to drive prices back down—and then share what they buy.
There are a few limits to interstate compacts. Most important, compacts can’t serve as “an affront to the sovereignty of non-member States,” but the Supreme Court has already ruled that creating “economic pressure” isn’t enough to do that. In fact, the Supreme Court doesn’t police limits very rigorously. For example, despite text in the Constitution saying Congress must approve interstate compacts, the Supreme Court almost never requires that—it has generally only been required when a state agreement might “encroach upon or interfere with the just supremacy of the United States.” The feds can join compacts, too, which might address Cuomo’s other complaint that he’s also bidding against the Federal Emergency Management Agency. But adding FEMA to the compact actually would require Congress to act. And if Congress could get around to doing that, probably it could fix the entire problem more directly.
A few additional points to consider.
First, despite those limits on interstate compacts, good luck to anyone who goes to court to challenge a ventilator compact. In today’s dire circumstances, the Supreme Court will almost certainly let the states do as they wish. Even from a more doctrinal perspective, don’t forget that, in recent years, the majority of the justices have often limited federal authority in favor of more robust state power.
Second, this solution doesn’t apply to just ventilators. If the federal government truly wants to act only as a “backup,” as President Donald Trump has repeatedly stated, then states may want or need to allocate a whole array of stuff among themselves: everything from face masks to medicine to, if necessary, even food.
Finally, think about this. What Cuomo described is a world where states are facing the world almost as free agents, squabbling with each other, unable to agree. That’s what the United States looked like before the Constitution, when the states lived together uneasily under the Articles of Confederation. The people who wrote the Constitution desperately wanted to replace those creaky, wobbly, and ultimately failed articles. But the constitutional Framers did leave in this one vestige from the old regime. Essentially, the interstate compact clause lets the states gin up ad hoc articles of confederation. Meaning, 231 years after we ratified the Constitution, we may now need to use parts of that very system we thought we had moved beyond.
In an ideal world, the states should not need to improvise like this in a crisis. In an ideal world, the states and the federal government would work as peers. In an ideal world, there’s no grisly bidding war between states, to seal who will breathe, and so who will live, and who will die. In an ideal world, we don’t need this interstate compact.
For more on the impact of the coronavirus on essential workers, listen to this week’s What Next: TBD.
But in today’s broken world, we probably do.
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