Federalism

Federalism and the Coronavirus Crisis

States have so far taken the lead in battling the coronavirus, and there is some merit to this decentralized approach, which fits the original meaning of the Constitution. But it also has flaws, and there is still a good chance the crisis will ultimately lead to an expansion of federal power.

|The Volokh Conspiracy |

Historically, major crises have led to expansions of federal government power. As Robert Higgs documents in his classic book Crisis and Leviathan, this tends to happen even if the crisis was partly caused by misguided federal policies, and even if the federal response to the crisis has serious flaws of its own. So far, however, the coronavirus crisis seems like it might be an exception. There is some value to the decentralized nature of the response to the crisis, but also some risks. And it is far from clear that the crisis won't ultimately result in a major expansion of federal power.

As Walter Olson documents in a Wall Street Journal op ed, so far it is state governments that have taken the lead in combating the virus. The "shut down" and "stay at home" orders that have affected millions of Americans are almost entirely issued by state and local authorities. These have also—so far—taken the lead in trying to boost the capacity of the health care system to handle the surge in coronavirus cases.

The federal government's coronavirus "social distancing" guidelines, by contrast, are largely advisory. With the important exception of draconian new restrictions on international travel and migration, the lion's share of coronavirus-related regulations affecting ordinary citizens are the work of state and local authorities. Donald Trump may have high TV ratings, but the actions of governors like Gavin Newsom (California), Andrew Cuomo (New York), and Mike DeWine (Ohio) are having a much bigger on-the-ground impact.

There is some value to this relatively decentralized approach to combating the virus. The US is a large and diverse nation, and it is unlikely that a single "one-size-fits-all" set of social distancing rules can work equally well everywhere. In addition, state-by-state experimentation with different approaches can increase our still dangerously limited knowledge of which policies are the most effective.

Moreover, if one policymaker screws up, his or her errors are less likely to have a catastrophic effect on the whole nation.  Here, there is a tension in the views of those who both advocate a much more centralized policy but also (correctly in my view) believe that Donald Trump is often malicious or incompetent. The worse he is, the less we should want to see even more power concentrated in his hands.

As Olson points out, giving the states the lead role on public health issues is not a new idea, but one  embedded in the original meaning of the Constitution. The Founding generation regarded most public health issues as primarily a state responsibility beyond the scope of the federal government's enumerated powers. In his landmark 1824 opinion  in Gibbons v. Ogden, Supreme Court Chief Justice John Marshall—who generally advocated a broad conception of federal power by the standards of the time—listed "Inspection laws, quarantine laws, [and] health laws of every description" as part of "that immense mass of legislation which embraces everything within the territory of a State not surrendered to the General Government."

There is, in fact, a long history of state and local governments taking the lead in battling the spread of contagious disease. During the 1918-19 flu pandemic, state and local restrictions were the primary means of inhibiting the spread of the virus, while the federal government did very little.

While there is much to be said for state-led efforts, they also have at least two serious limitations in the current crisis. First, the coronavirus is—apparently—highly contagious and can spread quickly from one area to another. This means that a state or locality with overly lax policies can potentially "infect" its neighbors.

I lack the epidemiological expertise to assess the extent of this risk; it may vary from place to place. It is also possible that it can be mitigated by coordination between neighboring jurisdictions. Still, the possibility of "externality" effects—in which one state's policies harm its neighbors—is a standard critique of decentralization. And the spread of a deadly disease is a particularly severe example of this problem, one that may be more difficult to address than many other types of  externalities.

Second, one of the major checks on bad state and local policies is the ability of people to "vote with their feet" against them by moving elsewhere. Foot voting enables some people to escape harmful or oppressive government policies, and also gives jurisdictions incentives to avoid  them in the first place, for fear of losing key parts of their tax base. In most situations, foot voting is one of the biggest advantages of political decentralization.

But its effectiveness is greatly reduced in our current  situation. Though some states have enacted  quarantine requirements on people arriving from other states, interstate migration has not—so far—actually been banned. But even aside from legal restrictions, interstate movement in the midst of a pandemic will be extremely difficult, at best. Where it remains feasible, it could potentially risk spreading the disease further—at least until we have enough testing capacity to effectively screen would-be movers (and others).

Hopefully,  foot voting will become safer more feasible again, as testing improves, and parts of the economy begin to recover. At the moment, however, it is nowhere near as effective as it would need to be to provide a meaningful constraint on ill-advised state and local policies. That includes both policies that are overly lax—and thereby allow the virus to spread—and those that are overly restrictive, and thereby cause more harm to liberty, the economy, and social welfare than can be justified by their health benefits.

Externalities and other similar problems might yet lead to a greater centralization of power during the crisis. Centralization could occur even in some areas where it isn't really needed, because public opinion might prefer a seemingly strong federal hand on the tiller in the midst of a crisis. Political ignorance is widespread, and many voters may be unwilling or unable to  objectively evaluate the effectiveness of either federal or state policies. For many, the default response to a terribly dangerous situation might be to clamor for large-scale intervention of the largest and most powerful government available.

It is also worth remembering that the massive $2 trillion "stimulus" bill passed by Congress has already caused a huge increase in federal spending, and made many more people, industries, and subnational governments more dependent on federal largesse. Much of what is in the bill may be a justified emergency measure. But that spigot—like other expansions of government power in the midst of crisis—may not be easy to cut off even after the emergency ends.

In sum, the coronavirus crisis has so far featured states taking the lead in crafting the US response. This federalist approach has some real value. But it has downsides, as well. It is too early to tell how severe those flaws are. Despite the current starring role of state governments, it is also too early to rule out the possibility that the coronavirus crisis will ultimately result in a major expansion of federal government power.

UPDATE: I have updated the link above describing states that have imposed quarantine requirements on people arriving from other states.

NEXT: How Will Coronavirus Pandemic Deaths Compare to the 1957 Flu Pandemic?

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  1. I would say this federalist approach where the states take the lead in the area which is their rightful domain is the correct and proper answer, especially as we seek to keep our system of government intact.

    The Federal government has taken the lead in governing international travel, as is the right of the federal government. But the federal government does not have the power to close the schools. It does not have the power to demand bars and restaurants close. In this area it is required for the states to exercise their powers, as they see fit.

    Where this will get into mixed results is in the area of interstate travel and quarantines. New York, and New York City likely should’ve been quarantined a couple weeks ago. The governor of New York is rather starkly opposed to this. Meanwhile the governors of Rhode Island and Massachusetts likely would’ve liked such a quarantine (and are putting modest efforts into restricting out of state travel from NY). Where the federal government comes down on this issue will be interesting.

    1. “It does not have the power to demand bars and restaurants close.”

      I’m pretty sure that under Katzenbach v. McClung, they absolutely do.

      1. Katzenbach v. McClung fell under the Civil Rights Act, as an extension of the Commerce Clause.

        Now, one could argue under the Interstate Commerce Clause, the Federal government has the right to do just about anything it wants to do with Commerce. First though, you’d need a law, passed by Congress on the relevant situation.

        So, which law, passed by the United State Congress, would you like to use as the source of power for the Executive Branch to close down every bar and restaurant in the current crisis?

        1. That’s shifting the goal posts. The initial claim was the federal government had no power to close bars and restaurants.

          1. You see, in order for the federal government to have a power, it must have passed a law regarding the power, and the law must pass constitutional muster. This is especially true in regards to actions by the executive branch. They need some law that gives them the power.

            So, what law are you citing?

            1. At this point you are just being dishonest. The original comment asked where the federal GOVERNMENT got the power. That includes Congress.

              Since you apparently didn’t know about McClung, you then shifted ground to whether the EXECUTIVE has the power. Different question. You shifted the goal posts.

              I am not opining as to whether the executive has that power. I was simply saying that your initial question had a very obvious answer that you didn’t like.

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      2. Katzenbach does not stand for the proposition that the federal government has the power to close restaurants and bars, much less most of the private economy.

        1. My understanding is that _Katzenbach_ held that Congress has the power to regulate Interstate Commerce in Ketchup, even though all of Ollie’s Diner’s food was locally sourced. And the power to regulate definitely includes the power to close — subject to the pesky 5th Amendment.

          1. Congress. What law authorizes the President to close bars?

            1. Ummm, the National Emergencies Act of 1976?

              1. Someone can correct me if I’m wrong but I don’t believe that the National Emergencies Act of 1976 actually grants the President the power to do anything except to codify his or her ability to declare a state of emergency (and also provide Congress the ability to overrule his or her declaration). The powers that he can exercises after an emergency has been declared all have to come from some other statute or part of the Constitution. For example, when President Trump declared a state of emergency at the southern border, there was another statute which said that if an emergency was declared, the president could divert funds that had been appropriated but not spent for military construction projects and use them for other military construction. So if the President were to declare a national state of emergency for the Covid-19 pandemic, he would still need another statute or part of the Constitution to give him the power to shut down bars or other “nonessential” businesses. Does anyone know if there is such a statute and if so, what it is?

      3. Amazing, you want Donald Trump to use this power. Donald Trump. worst president ever.

        Please turn in that pink “pussy” hat you wear to the demonstrations.

  2. Trying very hard not to give Trump credit for his relative restraint from the temptation to one up the states I see.

  3. Interesting article. Thanks. You wrote about some of the issues I’ve been thinking about this week.

    This article posits as a downside of the federalist approach that “First, the coronavirus is—apparently—highly contagious and can spread quickly from one area to another. This means that a state or locality with overly lax policies can potentially “infect” its neighbors.”

    There are ways to deal with this problem. One, as the author mentions later, is to limit admissions from epidemic hot-spots (not “hot-sports”). The other involves property rights, which people can use to isolate themselves from others. They are not required to allow someone on their property. A business, such as a restaurant, can do a number of things to protect themselves, such as limit the number of customers in their location at any one time. Even if the neighboring state is lax, you can protect yourself from their citizens who come into your state.

    One major question I have is about the marginal benefit of forcing most people into isolation. I can see quarantining those with the virus, and having (making?) vulnerable populations, such as the elderly, stay at home for a while. I wonder about the marginal benefit of limits on healthy people. There are always tradeoffs, whether one is too strict or too lax. Maybe we will learn something from Sweden, which is not as locked down as most places, though it still has limits on contact, distancing, etc.

    1. A business, such as a restaurant, can do a number of things to protect themselves, such as limit the number of customers in their location at any one time.

      This offers some protection to the customers, but not the waiters or busboys.

  4. Too bad Somin’s interesting piece did not take on one of the sore spots currently troubling state governors—the corrosive effect of federalism during efforts to coordinate relief-supply distribution nationwide. Basically, federalism seems to be making that kind of coordination impossible, leading to notable inefficiencies in allocating critical supplies like masks, tests, and ventilators.

    National government oversight could solve that problem, but at the risk of annoying Trump’s base, at least for now. During a widespread disaster, making life-and-death decisions subject to electoral calculus ought to be recognized as a strong argument against too much reliance on federalism.

    1. Give up the fantasy that central management and planning is superior. It is a disaster.

      Look at how the federal government has impeded efforts to implement testing of covidia, purchase so-called personal protective gear, develop and distribute treatment therapies, and manufacture medical devices.

      1. People STEALING them from hospitals isn’t a problem???

      2. You think markets are the best way to distribute urgently needed medical supplies?!

        1. Yes.

          1. As opposed to, say, the president distributing them based on which governors have been nicest to him.

            1. Markets would give them to who is willing to pay the most. Not much better.

              If only there were a middle ground…

              1. Exactly. Having markets determine who gets medical supplies via bidding wars is hardly just. These are not luxuries.

  5. “Second, one of the major checks on bad state and local policies is the ability of people to “vote with their feet” against them by moving elsewhere.”
    “Political ignorance is widespread,”

    Hobby horses apparently always need exercise.

  6. “Here, there is a tension in the views of those who both advocate a much more centralized policy but also (correctly in my view) believe that Donald Trump is often malicious or incompetent. ”

    Never attribute to malice or incompetence what can be adequately explained by just disliking or disagreeing with someone.

  7. I think the idea that federalism is necessary to limit the likelihood of bad policies being imposed at the national level was pretty much shot to hell by Jim Crow. Jim Crow ended because the feds mandated it, and not because federalism enabled 50 different state laboratories to experiment and come up with their own solutions.

    And only a libertarian theorist would actually be persuaded that people can vote with their feet by moving to another state. While that is a theoretical possibility, in the real world people have family responsibilities, economic realities and other practical pressures that frequently keep them where they are.

    1. James Crow, why don’t you let me introduce you to our distinguished guests, such as

      The Honorable War on Drugs,
      The Honorable War on Terra,
      The Honorable Uniting and Strengthening of America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism,
      The Honorable Foreign Intelligence Surveillance Court, and
      The Honorable Affordable Care Act.

      1. Libertymike, you conveniently forgot to mention that each of the 50 states enacted its own war on drugs.

        My argument is not that the feds never do boneheaded things. Rather, it is that there is no reason to believe they do boneheaded things with any greater frequency than the states do them. And there have been many times when the feds stood for liberty against the states. Jim Crow was but one of them.

  8. The consequence of the $2T is scary….

    1. Less scary than the consequence of not doing something like that.

      1. Right… Because it’s always good for government to become criminal thefts…

  9. An interesting issue unfolding in Massachusetts — the SJC had a hearing today on a motion to release all the prisoners due to the Wuhan Virus, a hearing held by teleconference.

    HOWEVER, no member of the public (including media) were permitted to attend, only the litigants.

    So much for public trials….

  10. The decentralized approach might be called “sink or swim” True that it should not apply where the drowning failures infect their neighbors.

    But neither US State or Federal governments have well thought out policies. Forget Trump. Nobody else has the “right” policies to apply.

    It’s too late to invite the successful governments, e.g. Singapore or South Korea to take over control of the USA.

    IMO, the reason Asian countries are doing better is partly because of their recent experience with SARS. In 2023 when coronavirus is just a memory (I hope), then maybe the USA can develop some well founded pandemic policies.

    1. The other advantage of Federalism is that local politicians can be compared to those of other states by the voters this fall…

      1. I’d feel much better about this form of social Darwinism if people from Stupid State X were prevented from coming across the border and infecting people from Smart State Y. If this were a “smart” virus, and only infected people who refused to isolate, refused to wash their hands, refused widely-available and free testing…well, those deaths would still be a tragedy. But a very different type of tragedy.

  11. It’s not a question of whether the states are properly taking the lead. They would rather not. But they are forced into that role due to federal Executive Branch incompetence. I do believe this is a first.

    1. Blah, blah blah. Of course they want Trump to take the lead so they can blame him if things go wrong.

      Public health has always been a state and local responsibility. Per the CDC website:

      “CDC’s new name reflects the evolution of its mission since 1946 as an agency that provides science-based assistance to state and local health departments in the control and prevention of disease, injury, and disability. “…”The change in name in 1946 reflected an assignment of responsibility for assisting states with the control of a broader range of communicable diseases.”

      1. The federal government took the lead in 1976 (swine flu) and 2011 (H1N1). It would have to, in any cross-state infectious disease situation.

      2. The same CDC who botched their One Test to Rule Them All.

        1. A pandemic is one of the best times to watch disaffected anti-government cranks mutter and sputter, rail and flail.

  12. The Feds failed abysmally, as they have for medical care generally for decades.

    It’s not that they aren’t doing enough, it’s the too much they’ve been doing has interfered with them doing right what they should be doing.

    CIA can’t accurately assess a Chinese pandemic.
    FDA prevents “unapproved” testing.
    CDC botches their federal One Test to Rule Them All.
    CDC has no comprehensive data collection, which should be Job One.

    “You don’t need no steenkin masks!”
    “Nothing works without a double-blinded placebo-controlled trial designed and controlled by us! Reality is what we say it is! Hydroxychloroquine is snake oil until *we* say otherwise.”

    1. Not a discouraging word with respect to Pres. Trump’s failures, though, you bigoted, half-educated culture war casualty.

      Is this genuinely how you wish to spend the time you have before replacement?

      1. You’re boring. Go away.

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  14. It is always best when the government closest to the problem takes the lead, as states are doing now. The job of governments above the locals is to support the locals and the Federal Government under President Trump has done a terrible job with respect to this responsibility. The President failed to recognize the problem until the stock market collapsed. His government was unprepared and the blame lies with the head. The fact President Trump has only recently realized the extend of the problem and now it is really to late.

  15. Wow – there’s a lot of “All hail the monarchy King” believers in here.

    Sheeple who always insist the federal King be their all-mighty god and full-blown dictator also seem to be the exact same clowns that blame the all-mighty king for everything…….

    Here’s a thought – maybe, just maybe… Your belief that king wolf must be in-charge of everything is the VERY REASON you have to hate and blame him for everything.

    STUPID IS; IS STUPID DOES….

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