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How the Pandemic Broke the Trend Toward Federal Expansion

Nearly every great modern crisis has led to an expansion of federal power, but President Trump left the pandemic response largely to the states. This year, federalism was a boon both to health and election management.

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Anthony Fauci has criticized the disjointed effort by states to deal with the pandemic, but in other ways federalism has done its job. (Xinhua/Sipa USA/TNS)
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The great crises of the past century, from the Great Depression and World War II to 9/11 and the Great Recession, all had one major outcome in common. The federal government assumed greater power and authority in response, which then became permanent. The coronavirus pandemic has been an exception.

Rather than seizing greater authority or even using the powers already available to him, President Trump largely, though not entirely, outsourced pandemic response to the states. He often goaded or criticized governors, but he made it clear he thought it was primarily their problem. 

The administration and Congress provided guidance and resources to the states, but left decision-making up to them. It was an approach consistent with the original federalist structure of the nation, which did not foresee the massive national government we live with today. “What you might regard as Trump’s failure to be more authoritative in terms of national regulation actually has been very consistent with the constitutional structure of federalism,” says Robert Nagel, a law professor at the University of Colorado. 

It’s doubtful that Trump based his pandemic response on a reading of James Madison. The president sought to “downplay” the coronavirus, as he put it, concerning himself more with its effects on the economy and his own re-election prospects. He didn’t demand strong medicine because he never wanted, as he often said, for the cure to be worse than the disease. 

But the net effect was the same. Trump’s inaction opened up space for states and localities to devise their own plans. That hasn’t been all to the good. The result has been a “patchwork pandemic,” with different states, and even different communities within states, attacking the virus with greater or lesser aggression. Anthony Fauci, the federal government’s top infectious disease official, has complained about the “disjointed” nature of an approach that varies by city and state. And what happens in one state can quickly affect other states, given the nature of a viral disease. 

“The downside of the response is that the states themselves have not coordinated or had a common approach either,” says John Kincaid, a federalism expert at Lafayette College in Pennsylvania. “We’ve had some regional coordination, but you see a clear division in the states along party lines, which is very similar to what we see in the federal government.”

Still, a varied response is better than nothing. If responsibility for addressing the coronavirus fell strictly on federal shoulders, the situation might be even more dire, given Trump's laissez-faire approach. “I think we have, frankly, a colossal failure of presidential leadership right now,” says John Vile, a political scientist at Middle Tennessee State University. “Thank goodness we have some governors and mayors willing to step into the breach, or we’d be worse off than we are now.”

The nation has gotten an education in federalism this year. Although the media and most of the public tend to view Washington as “the government,” the 50 states and thousands of localities have demonstrated their own importance during the pandemic. That has continued in other contexts – notably during the aftermath of the election, with state and local officials less willing than members of Congress to indulge Trump’s contention that it was somehow stolen from him.

Article II of the Constitution gives states the authority to set the “times, places and manner” of elections. That dispersal of power has made hard to hack elections and, as Trump is finding out, difficult to overturn. “Part of it is the concerns the Framers had about tyranny,” Kincaid says. “This non-centralized system is an anti-authoritarian aspect of our government.”

National uniformity appeals to people because it’s more efficient. Liberals are left unhappy by the fragmented coronavirus response, while conservatives are now complaining about variations in state election laws that they claim have cheated Trump. Meanwhile, we’ve come to expect a national solution to every problem. “Federal power has, in the past, increased excessively during times of crises,” Nagel says. “The net effect – really over 200 years, but certainly in modern times – has been more and more power to the national government, on all kinds of things including health and welfare.”

Federalism still acts as something of a brake on that process. Its point is not to satisfy people who want to impose a single set of rules but rather to frustrate them, by limiting centralized power. We often think about checks and balances as consisting of the executive, legislative and judicial branches, but the Founders also saw subnational governments as an important check. “The true barriers of our liberty in this country are our state governments,” Thomas Jefferson wrote in an 1811 letter. 

Split Responsibility on Health

During the Spanish flu epidemic, President Woodrow Wilson himself got sick but he never mentioned the flu publicly. That’s how different things were in those pre-New Deal days: There was no expectation of a federal response.

First cities and then states set up health departments during the 19th century. It was through their responses to epidemics of yellow fever, cholera and other diseases that they gained powers such as quarantines and shutdown authority that are still relevant, though obviously controversial, today. At the federal level, what became the Centers for Disease Control and Prevention wasn’t established until 1946, as an outgrowth of the anti-malaria effort during World War II (and thus part of the national government’s postwar expansion).

Over the years, the division of responsibility for public health between the feds, states and localities has become fairly clear. During recent infectious disease outbreaks such as Ebola, Zika and the H1N1 flu, the CDC took the lead on messaging and set strategies and guidelines that state and local health departments largely followed. Funding for their efforts was later backfilled, at least in part, by Congress.

That model broke down this year. The CDC was often sidelined. While the agency held daily news conferences during prior outbreaks, it often went silent for months this year. Robert Redfield, the CDC director, was sidelined as part of the White House coronavirus task force and sometimes contradicted directly by the president.

Nations that have combatted the pandemic most successfully, such as Vietnam, Taiwan, New Zealand and Japan, have taken a centralized approach. They didn't all pursue the same strategies, but they all did pursue strategies – whether universal mask wearing or travel restrictions or aggressive testing and tracing – that have been uniform within their borders.

Other federalist nations have also coordinated their approaches. “In Germany, Chancellor Merkel negotiated an approach with states,” says Kincaid. “Australia formed an ad hoc cabinet including premiers and heads of the territories.” 

Those countries have had much better results than the United States.

“We’ve had mixed messages,” says Emily Gee, a health economist at the Center for American Progress, a progressive think tank. “There hasn’t been and there still isn’t any federal coordinated strategy on best practices. All of this has been delegated to the states.”

States Fending for Themselves

Emergency response wasn’t a public health responsibility until the 2001 terrorist attacks. Public health funding reached a peak following the attacks, with Congress wanting hospitals and the CDC to be ready to confront disasters. 

In 2002, Congress created the Strategic National Stockpile of vaccines and other medical supplies, which was designed to help respond to health needs due to bioterrorist attacks of other public health emergencies. 

Trump didn’t see it that way. States should find their own supplies, he said back in March, leading governors to make their own deals with suppliers, including overseas. “Governors are supposed to be doing a lot of this work, and they are doing a lot of this work,” Trump said. “The federal government is not supposed to be out there buying vast amounts of items and then shipping. You know, we’re not a shipping clerk.” This state of affairs has caused clear friction between Trump and Democratic governors.

Things have started to change. With Operation Warp Speed, the federal government will, within days, help coordinate the shipping of vaccines to states. Joe Biden has clearly signaled that battling the coronavirus will be his top priority upon taking office as president. 

Throughout the campaign, Biden made clear he wants everyone across the country wearing masks, but he recognized the limits of his authority as president. He said he’d work with governors to have them issue mask mandates, but he can’t order them to do so – any more than Trump could order governors to reopen their states’ economies, as he briefly claimed he had “total” authority to do back in April. 

This has led to a revival, says Kincaid, for an almost-moribund idea known as “dual federalism,” which holds that there are policy areas in which state and federal responsibilities are separate and clearly demarcated.

“It’s become clear that the federal government has limited constitutional authority,” he says. “Police powers and public safety are largely held by the states and were not delegated to the federal government.”

Elections: No One Size Fits All

On Tuesday, Texas Attorney General Ken Paxton filed a lawsuit seeking to overturn Biden's victories in Georgia, Michigan, Pennsylvania and Wisconsin, calling on the U.S. Supreme Court to delay the Electoral College from voting on Dec. 14. He claims those states adopted illegal voting procedures that will taint the Electoral College.

Officials in those states dismissed Paxton’s complaint as a stunt. His lawsuit appears destined to be the latest of dozens of election-related legal actions brought by Trump and his allies to be thrown out in court. On Tuesday, the Supreme Court denied granting an injunction sought by a GOP congressman who wanted to throw out the 2.5 million absentee ballots cast in Pennsylvania or allow the legislature to pick the state's electors. The justices took just 34 minutes after receiving the claim to reject it.

Trump has sought to strong-arm leaders in states, including PennsylvaniaGeorgia and Michigan, to toss out certified election results and put up a set of electors who would support him. Although plenty of state legislators have echoed Trump’s evidence-free claims that the election was rigged against him, or have given them an airing in hearings, state and local officials with clear, formal roles have rejected them.

"To think I would wake up one day and decide that 2.5 million people's votes didn't count just because it wasn't the way I wanted the election to turn out, that's certainly not democracy,” Georgia Lt. Gov. Geoff Duncan said on CNN.

If a federal agency were in charge of elections, Trump’s ability to bring pressure to bear would obviously be greater. Most Republican members of Congress have refused to recognize Biden’s election. 

There are tremendous variations in how states and counties run elections, leading to all manner of complaints. The 2013 Supreme Court decision that gutted major portions of the federal Voting Rights Act has allowed Southern states to close hundreds of polling places. Limited resources in some jurisdictions leave them more vulnerable to cyberattacks. Some places have long voting lines, others don’t. Some can count ballots quickly, others clearly lag. Democratic states in recent years have adopted automatic voter registration laws, while Republicans have favored voter identification requirements. 

No one would design a system that takes such wildly different approaches to a single act. Yet the fact that the election system is so diffuse turned out, this year, to be an insurance policy.

“Federalism in many ways is inefficient and does produce uneven or imperfect outcomes,” Nagel says, “but it is a guard against tyranny because you have local control.”

Alan Greenblatt is a senior staff writer for Governing. He can be found on Twitter at @AlanGreenblatt.
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