Legal expert explains the key mistake Republican governors are making about COVID policy

Legal expert explains the key mistake Republican governors are making about COVID policy
Ron DeSantis
Florida Gov. Ron DeSantis, right, speaks with members of Tyndall Air Force Base, Fla., leadership during the governor's first visit to the base since becoming governor, Jan. 16, 2019. (U.S. Air Force photo by Airman 1st Class Solomon Cook)

Republican governors across the United States have enacted legislation that will likely fuel the spread of COVID. A new op-ed published by legal experts Richard L. Revesz examines the governors' failure to properly mitigate the spread of COVID and their misunderstanding of federalism.

In an op-ed published by The Hill, Revesz, who works as the director of the American Law Institute and the Lawrence King Professor of Law at the New York University School of Law, used Florida Gov. Ron DeSantis, Texas Gov. Gregg Abbott, and South Carolina Gov. Henry McMaster as examples. He noted how the three Republican governors have used federalism as a means of justifying their actions.

The legal expert explained the two principles of federalism. "Two key principles define American federalism," Revesz wrote, adding, "First, states can generally pursue policies favored by their people, even if other states prefer different policies. But, second, states cannot pursue policies that seriously harm other states."

Highlighting DeSantis' war on mask mandates and COVID vaccine requirements, Revesz went on to break down DeSantis' warped interpretation of federalism and how he believes the governor chooses to only acknowledge one side of the concept. "DeSantis misunderstands federalism by focusing exclusively on the first principle while ignoring the second one."

Revesz also used the governor's own words against him to explain where DeSantis' understanding goes terribly wrong:

"Justifying his COVID policies on vaccinations and masks, DeSantis said that 'Florida is a free state, and we will empower our people,' adding that he will not allow the Biden administration to 'commandeer the rights and freedoms of Floridians.' Similarly, with respect to his threat on school district funding, his office stated, 'Governor DeSantis believes that parents know what's best for their children; therefore, parents in Florida are empowered to make their own choices with regards to masking.'"

As DeSantis continues his push to enforce politicized legislation that disregards science, Revesz acknowledges that there are a plethora of reasons to question the governor's actions. Offering a worst-case scenario of COVID transmission, he wrote, "Businesses might accurately believe that vaccination requirements will result in more customers and higher revenues. And, while parents might know what is best for their children, transmission in schools threatens everyone with whom children come into contact, including immunocompromised people."

Where federalism is concerned, Revesz argued: "if the negative consequences were confined to Florida's borders, federalism would be on DeSantis's side (and the citizens of Florida would have an appropriate remedy at the ballot box)."

However, that isn't the case. Since COVID infections are not limited to the state of Florida, Revesz argues that DeSantis' actions are in violation of the second principle of federalism.

He went on to express concern about the possibility of virus mutation and how Republican governors are contributing to the impending problem. As unvaccinated individuals continue to rail against mitigation efforts, Revesz noted the possibility of what could occur if that continues. "The longer that large swaths of people remain unvaccinated, the higher the probability that mutations will occur, potentially leading to new variants of the COVID virus that might fully evade existing vaccines," he warned.

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