Thread by @McAdooGordon

Now that the pandemic is starting to abate, it's time for legislatures to completely overhaul state statutes authorizing the powers state governors & health authorities have to respond to a health emergency. These laws are seldom used & they need to be modernized & clarified. /1

The states have the power to deal with health emergencies - in ways that the federal govt DOES NOT. This is true about many things beyond health. It is part of the division of powers in our federalist system of govt. /2

But the state executive's powers are not unlimited. They are limited by at least three things: 1. people's constitutional rights (state & federal), 2. state statutes passed by the legislature, & 3. the factual context of the situation (the flu is not ebola for example.) /3

These powers are thus flexible - they are supposed to be - in order to both respond to the facts on the ground & respect the rights of the people. It is the legislature's job to give guidance to the executive - by statutes - as to how to balance these concerns. /4

In theory, the courts are a check on these powers, again in three ways: 1. to protect constitutional rights, 2. to enforce statutory provisions, & 3. ensure the actions have a factual basis. In practice, the courts did not perform so well in this pandemic (an understatement.) /5

Given the courts' failures to do their jobs, the often antiquated & untested nature of the existing statutes & regulations, & the cultural changes we've undergone since the 1918 pandemic, it is imperative that the legislatures take action & revise the state statutory schemes.

One thing that urgently needs to be clarified is that it is the politicians- not health officials - who must be making the decisions. They can be informed by the health officials’ views for sure, but that is not the only consideration. Rather, it is one of many to be considered.