Why President Biden can’t make states vaccinate teachers—or anyone else for that matter

Febraury 24, 2021

Although President Joe Biden wants to vaccinate teachers in order to speed school reopenings, more than half the states are not making either of those actions a priority—highlighting the limited powers of the federal government, even during a devastating pandemic.

“I can’t set nationally who gets in line, when, and first—that’s a decision the states make,” Biden said while touring a Pfizer plant in Michigan on Friday, February 19, reports NBC News. “I can recommend.”

Under the U.S. Constitution, the powers of the federal government are far-reaching, but not all-encompassing. States historically have retained control over public health and safety—from policing crimes to controlling infectious diseases; including distribution of coronavirus vaccines that Washington helped create.

Now, as the United States leads the world in COVID deaths, criticism of the federalist system that has allowed the states to do as they please is spiking.

“There’s a pretty strong argument that the confusion we’ve created has, in fact, cost human lives,” Donald Kettl, a professor at the Lyndon B. Johnson School of Public Affairs at the University of Texas told NBC News, adding, “We pay a pretty high price sometimes for letting states go their own way.”

The federal courts—not the federal government—have been able to exert their will over the states on issues from school desegregation to abortion to voting rights. But schools, abortion clinics and elections are still run or regulated by the states.

The federal government has spent the past two centuries trying to come up with creative ways to push its agenda on the states, sometimes by dangling the promise of federal funding as a carrot—and the threat to withhold it as a stick.

For instance, to build the Interstate highway system, the feds promised to foot 90% of the bill if states put up just 10%. The catch was that the roads had to abide by regulations that started small—bridges needed to be tall enough to allow tanks to pass under, to cite one requirement—but quickly grew to encompass the nationally uniform system of roads we take for granted today.

Washington pulled a similar move in 1984, NBC notes, when it forced states to raise the drinking age to 21 if they wanted highway money.

But just as often, the courts have pushed back against what they view as Washington overreach.

“When you boil it down, the delivery of public health interventions resides, really, at the state and local level,” Josh Michaud, associate director for Global Health Policy at the nonpartisan Kaiser Family Foundation, told the news outlet. “That’s been the model since very early on in our republic.”

So, for example, today, states can institute mask mandates, but many have questioned the constitutionality of Biden’s proposed national mandate. He ended up, instead, issuing mask mandates for federal property and interstate travel, like planes and buses, over which the courts have long ruled that the feds have authority.

Similarly, the CDC legally can’t force states to roll out COVID-19 vaccinations with any particular priority, said Sarah Gordon, an assistant professor of health law and policy at Boston University.

“They are actually quite limited in what they can do,” Gordon said. “The federalist separation of national versus local public health authority in the United States has, repeatedly, hamstrung rapid and effective pandemic response.”

The CDC has called for vaccinating all essential workers, including teachers, before moving on to those under 75. But several states have chosen to vaccinate people over 65 and those with pre-existing conditions first.

“We are going to rely on the CDC definition of an essential worker. But that’s a lot of people, including teachers,” Connecticut Governor Ned Lamont told the Hartford Courant‘s editorial board. “I’m not sure you move grandma to the back of the line so you can move [teachers] forward.”

Jon Valant, a senior fellow at the Brookings Institution who studies education policy, said Biden’s most effective tool to push states to vaccinate teachers might be the bully pulpit.

“What the federal government can do is mostly a combination of guidance, cover and pressure,” he said. “Teachers unions can be a lightning rod, and if you’re prioritizing teachers because the CDC or the federal government says to, it helps to protect you from critiques.”

Research contact: @NBCNews