Each day, as civilians cycle through their tedious routines, which may include frantically fighting over toilet paper and watching the disheartening Coronavirus-related news on repeat, decision-makers are wrestling with how to solve a national health crisis and simultaneously revert the economy back to its previous prosperity. President Donald Trump declared that the virus is “gonna be gone” and “gonna be eradicated,” yet the president and governors cannot seem to agree on who is responsible for pushing this effort forward (“Watch”, 2020). Is this the federal government’s task, or is this a matter that should be left up to the states? The founding documents of the United States lay the groundwork for how to answer this question.
Federalism in the Constitution
Though the word “federalism” does not explicitly present itself in the U.S. Constitution, the notion of federalism played a crucial role in the formative stages of our nation. According to Cornell Law, Federalism is broadly defined as “a system of government in which the same territory is controlled by two levels of government” (“Federalism”, n.d.). In Article 1 Section 8 of the Constitution, Congress is granted explicit powers, such as the power to regulate commerce and declare war (U.S. Const. art. I, § 8.). The 10th Amendment grants all rights not explicitly given to the federal government to the states (US Const. amend. X). Alongside these two stipulations, the Constitution also outlines how the document itself and “all laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land” (U.S. Const. art. VI). This clause, known as the Supremacy Clause, grants the federal government ultimate authority in all matters that that it can lawfully carry out, as outlined in the Constitution.
The Failure of Federalism in the Pandemic
Even though the Constitution outlines the basic powers of the various levels of government, federal and state governments continue to disagree as to which level of government is responsible for containing the virus and stabilizing the economy. Governor Cuomo of New York argues, “we need help on testing, we need funding,” and “we need the federal government to be responsible” (Kenen, 2020) (Breuninger, 2020). On the other hand, President Donald Trump explains that “states can do their own testing . . . we’re the federal government; we’re not supposed to stand on street corners and do testing” (“Remarks”, 2020). President Trump asserts he has authority to re-open states while claiming the federal government bears no responsibility for testing and supplies (“Remarks”, 2020). There is no clear precedent for seeking this balance of authority and responsibility outside of wartime. And while some might argue that federalism is working well— because individual states are creating their own protocols and sourcing supplies as best they can—others would counter that most states have inadequate resources. Federalism, which champions a sharing of authority between levels of government, is not an ideal method of operation in a severe health and economic crisis, which requires centralized coordination.
Looking to Past Examples
The United States has experienced the sweep of several viruses across its territory in the last couple of centuries, but one of the most prominent examples of a pandemic officials can look to for guidance is the H1N1 “Spanish Flu” of 1918. Given that World War I and the Spanish Flu occurred simultaneously and that the classic flu was already expected to kill around 100,000 people each year on average, President Woodrow Wilson paid little attention to the pandemic, not addressing it publicly nor responding to the resulting anxieties (Tackett, 2020). While the federal government failed to provide leadership and direction on the matter, health officials and politicians at the state and local levels established a coordinated effort to combat the virus. Governors and mayors decided whether or not their cities and states would stay open or remain closed and whether or not what we now call “social distancing” would be encouraged (Price, 2020). Though the federal government had already approved $1 million to combat the flu, Surgeon General Rupert Blue of the U.S. Public Health Service still felt that there was not enough federal support put toward the effort, and he testified to this effect before the Senate Appropriations Committee. The Surgeon General claimed he needed this financial support, because he only had the authority to coordinate the movement of doctors, nurses, and supplies between states. Alongside requesting more federal assistance, the Surgeon General also publicly advised people to “keep away from crowds, and cover up the mouth and nose so that they will not spread the disease” (Price, 2020)
The Increased Powers of the Federal Government
Of course, the Spanish Flu of 1918 also occurred before the scope and span of the federal government grew drastically. The Founding Fathers never could have anticipated the might which the federal government—and thus the president—wield today. When the United States was established, the Founding Fathers disagreed over the appropriate or desirable strength of the national government. The Anti-Federalists advocated for stronger states’ rights and a weaker national government because they feared the tyranny of a large central government. Conversely, the Federalists saw it as the best way to protect the nation from the weaknesses and failures of the Articles of Confederation. Because of the firm views of the Anti-Federalists, our Constitution contains a Bill of Rights, which grants individual citizens certain basic rights and freedoms, such as the right to bear arms and the right to a fair trial.
The first step in strengthening the power of the federal government began with President Woodrow Wilson, a progressive-era Democrat, who established the federal income tax and expanded the president’s role by advocating for the interests of the nation (Holcombe, 1997). After Wilson, Warren G. Harding, Calvin Coolidge, and Herbert Hoover—though they were all Republican presidents—broadened the power of the federal government by increasing spending on commerce, agriculture, education, and/or public improvement and by increasing the federal income tax (at one point, by 11 times Wilson’s original tax rate). Best well-known for his expansion of the federal government, however, is Franklin D. Roosevelt. With his famous New Deal programs, such as Social Security and the National Industrial Recovery Act, Roosevelt significantly increased federal spending and introduced the idea that the president is responsible for the economic well-being of American citizens (Holcombe, 1997).
The Federal Government’s Current Role in Protecting Health and the Economy
Because the power of the federal government has increased since the 1918 Flu, the government now plays a role in two primary facets of the current pandemic—the health of its citizens and the vitality of the economy. According to Constitutional law scholars, the legislative branch establishes health policy and determines how resources are allocated to implement these policies, and the executive branch is responsible for “implementing legislation and establishing health regulations to enforce health policy” (Institute of Medicine, 2002). The Judiciary also often establishes health policy by evaluating the powers of the government. Though each branch of the federal government does play a role in shaping public health policy, the states and local municipalities are largely responsible for their citizens’ health under the tenth amendment’s reserved powers clause (Institute of Medicine, 2002). Therefore, during this unprecedented time, the federal government and the states are actively struggling to establish a balance between their roles in providing testing and medical supplies. President Donald Trump claims that it is the states’ responsibility to acquire testing and ventilators, yet the states are looking to the federal government for assistance. Because states are left to their own devices, governors such as Larry Hogan of Maryland (R.) are obtaining tests from other places, such as South Korea (Budryk, 2020). Both sides are claiming that the other level of government is failing to provide what its citizens need. Regardless of who is at fault, hospitals in Coronavirus hotspots are still struggling to accommodate their sick civilians.
Alongside the health of citizens, the federal government has also become largely responsible for the economic well-being of Americans. President Trump claims that he has the sole responsibility to reopen the economy, tweeting, “some in the Fake News Media are saying that it is the Governors decision to open up the states, not that of the President of the United States & the Federal Government. Let it be fully understood that this is incorrect” (“some in the”, 2020). Therefore, President Trump claims that he has the exclusive authority to reopen the economy, yet he also tweets “Liberate Michigan” (“Liberate”, 2020). If President Trump claims that he has the sole authority to reopen the states but then also publicly encourages governors to reopen their states through social media posts, who really possesses this power then? Do the states truly have the ability to reopen their economies, or is that left up to the federal government to decide? According to public health and Constitutional law scholars, the president cannot require states to adopt federal law (Institute of Medicine, 2002). Regardless of the constitutionality of the principle, however, President Trump cannot on the one hand expect states to act of their own accord (both to address aspects of the health crisis as well its economic consequences) and simultaneously to follow his social media directives. Though President Trump has expressed that he has the authority to reopen the states, he has not actually enacted or enforced this power.
The Authority of the Executive During National Emergencies
On March 13th, 2020, President Trump did issue a “Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak” (“Proclamation”, 2020). However, President Trump has been reticent to evoke the full authority granted to him under the National Emergency Act and Defense Production Act, which allows presidents to exercise more drastic authority to protect the nation during emergencies. President Trump has used this broader authority in requiring the meat packing industry to continue producing meat (under the Defense Production Act); however, he has not yet enacted his power to require ventilators to be made for Coronavirus patients. Past presidents have declared a state of emergency to allow officials at all levels of government to coordinate relief efforts for the protection of American citizens, although this may involve a restriction of individual liberties. Though the Spanish Flu did not merit a state of emergency in Woodrow Wilson’s eyes, other states of emergency, including the attacks on Pearl Harbor and the 2009 H1N1 Influenza drew immediate responses from the executive. In comparison, it is worth noting that the Trump Administration has not brought the full force of federal authority to bear in coordinating a response to the Covid-19 pandemic.
Why Federalism has Failed During the Coronavirus
The weaknesses of federalism are blatant in the current situation, and the nation is struggling as a result of a lack of precedent (the extent of a health crisis like this has not been seen in modern times) and a lack of coordinated communication. During the 1918 Spanish Flu, the pandemic received very little national attention and therefore serves as a poor benchmark for the current situation. Though it often prompts declared states of emergency, wartime does not sufficiently compare to pandemic crises like the one at hand. Clearly a failure to communicate effectively and establish concrete steps forward in regards to acquisition and distribution of medical supplies, access to accurate information, and science-based guidance in re-opening state economies has created frustration for state and local leaders. As a result, regional coalitions have been created to share medical discoveries and coordinate the opening of business and institutions. For example, northeastern states—including New York, New Jersey, Connecticut, Massachusetts, Delaware, Pennsylvania, and Rhode Island—have appointed public health officials and created economic development plans for the region (Cassidy, 2020). This joint effort demonstrates the need for better communication patterns between levels of government and strongly suggests advantages of a more effective federalist system. Since there are no clearly established responsibilities for federal and state governments in a health crisis of this magnitude, accountability will only be sorted out after the fact, if at all.
What this Means for Federalism Going Forward
Given that the levels of government have had considerably different ideas concerning who is responsible for combatting this national crisis, historians and political analysts are pondering how this crisis will affect public policy going forward. Since President Trump has determined that the states are responsible for their own citizens’ health and that he is not, this may set a precedent for the national government’s withdrawal from responsibility for health affairs and the economic well-being of citizens going forward. Unless the failure of federalism is realized and the inadequate collaboration between levels of government is transformed into a more centralized, coordinated effort led by the executive, this problem will continue to arise during our nation’s most vulnerable moments. As a result of the pandemic, the dangers and advantages of a strong central government return sharply into focus. At stake are the health of the American people, the vitality of the economy, and the direction of public policy in general, but particularly in times of crisis.
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