In an opinion piece in The Hill, Penn State Dickinson law professor Martin Skladany argues that governors ought to be threatening to use their general police powers to compel manufacturers in their states to begin manufacturing personal protective equipment (PPE).
“In the absence of a quick and robust federal response,” Skladany writes, “governors need to seize an additional weapon in this fight. Even if they do not compel in-state manufacturers, just the threat of doing so could help them negotiate with companies or push the Trump administration to do more.”
The news is filled with examples of companies jumping in to help with the the fight against the pandemic by repurposing their assets and human resources. Among the many examples are a Chicago pizzeria using its oven to make face masks and a Brooklyn whiskey distillery making hand sanitzer. But to the extent businesses with relevant assets and expertise aren’t helping, Skladany’s plan is worth serious consideration.
Skladany acknowledges, of course, that states vary with regard to governors’ powers. And Skladany acknolwedges that any governors taking action along these lines would probably provoke lawsuits challenging the constitutionality of such moves. But he’s nuanced about this. The mere rattling of the saber may be sufficient to help push businesses in a state into doing more to help.
Indeed, this gets into an important thing that non-lawyers often don’t grasp about the law: Uncertainty in what the law allows doesn’t mean the law in this regard is bad or useless. To the contrary, uncertainty is often a powerful encouragement for opposing parties to meet in the middle. That often—although not always—creates good-for-society solutions where everyone gets at least part of what they want.
by Eric E. Johnson