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Three Cheers for Federalism in a National Crisis

The real problem these attacks on federalism are gunning for is not how the government responds to a crisis. It's that they don't like federalism. They don't like the Electoral College, or equal representation of states in the Senate, which has judicial confirmation power, and power to "advice and consent" to treaties. They don't like that Montana has the same number of votes as New York or California. They'd rather make state governments administrative units of the federal government.

The strident calls for a strong national response to Coronavirus, like every other “moral equivalent to war” lead inevitably to solutions requiring a more powerful, more centralized national government. A national government whose sweeping powers can do what China, Singapore, South Korea, and Italy have done.

Derek Thompson’s piece in The Atlantic is archetypal of this genre.

And it is, above all, a test for the state. Only the national government can oversee the response to a national outbreak by coordinating research on the nature of the disease. Only the state can ensure the national regulation and accuracy of testing, and use its fiscal and monetary might to stimulate the economy if the pandemic threatens people’s income and employment.

Throughout the world, the most effective responses to the historic threat of the coronavirus have come from state governments…

…But in the United States, the pandemic has devolved into a kind of grotesque caricature of American federalism.

And another by Juliette Kayyem in the same publication. Kayyem is self-described as a “former federal and state homeland security official.” (In fact, Kayyem is a Harvard-trained lawyer, who hosts a Boston public radio podcast called The SCIF. She ran for governor of Massachusetts once, and wrote for the Boston Globe. She was the Assistant Secretary for Intergovernmental Affairs at DHS during the Obama administration.)

She concluded that the Coronavirus threat “exposes the weaknesses in our society and our politics.”

If Americans could seek testing and care without worrying about co-pays or surprise bills, and if everyone who showed symptoms had paid sick leave, the United States could more easily slow the spread of COVID-19. But a crisis finds a nation as it is, not as its citizens wish it to be.

The point of these articles is that our nation, failing to have a strong central national government capable of ordering the necessary countermeasure and sacrifices to handle a pandemic, is broken. The system is broken and has caught us with our pants down.

But as Kayyem noted (without irony), a crisis finds a nation as it is. And our nation is a federal republic, where the states have nearly unlimited authority to regulate individual lives within the bounds of the Constitution, and the federal government has very specific delimited powers according to our basic and founding law.

However, the nation is not “devolved into a kind of grotesque caricature of American federalism” as Thompson wrote. It has instead devolved into a grotesque caricature of a centralized system such as most European nations hold to. But in our federal system, designed to govern a pluralistic, heterogenous, geographically diverse polity, that system has never, does not, and never will work.

The problem is not that the federal government doesn’t have enough of the reins of control to do something, it’s that the federal government has usurped and subsumed far too much control without the authority to use it. Over the decades since World War II (and going back to Reconstruction), the federal government has grown exponentially, adding bureaucrats in droves to what Steve Bannon called the “administrative state.”

Now we have a leviathan that, in areas like healthcare, has attempted to consolidate power through legislation, fiscal strings, penalties, and taxes, but fails to be able to operate without state cooperation. Therefore, there is no central pandemic response because each state has its own public health department.

Properly within its role, the CDC’s mission is to “protect America from health, safety and security threats, both foreign and in the U.S. Whether diseases start at home or abroad, are chronic or acute, curable or preventable, human error or deliberate attack, CDC fights disease and supports communities and citizens to do the same.”

Note that the CDC’s mission is not to take central control over communities and citizens. The federal government also has a uniformed Public Health Service, with a Surgeon General in charge. One of the branches supported by the PHS is the CDC, along with the National Institutes of Health (NIH), where the sainted Dr. Anthony Fauci, the official voice of reason in the Coronavirus crisis, works.

Again, the PHS isn’t a law enforcement branch. Though they wear a uniform, they are not like the movies show, coming into town and setting up a quarantine perimeter before the dread disease gets out.

In fact, the disease, unless Patient Zero is identified quickly and isolated, always gets out. Quarantines without social distancing measures, on the whole don’t work. This is why China (whom I never believed in their reporting of case counts and mortality) ended up freezing over a half billion people in place, and why Italy’s hospitals are overrun.

The calls for a stronger national response are based upon the government’s lack of the right quantity of COVID-19 test kits, and the fact that the federal government had not done more to prepare. These are valid criticisms. President Trump probably should have pulled the trigger on a national emergency back in January. We may have been able to largely avoid the extreme disruption we now face with school closures, moratoriums on spectator sports, and the devastated travel industry.

But then again, we may not have avoided it.

In the end, it will be individual citizens, supported by local, state, and the federal government, that beat this virus. It will be companies working in concert with the government at all levels–like Walmart, Walgreens, Target, Roche, Labcorp, Quest Diagnostics, CVS Health, and Google–that respond to the threat.

The problem with calling for greater national control is that it concentrates even more power in the hands of a president of whom those calling for this power would never, ever trust to have it. Alternatively, do we want the next Democrat (or Bernie Sanders, as a for-instance) to have the authority to order sweeping quarantines and business shutdowns coast to coast? Think about it.

The problem here is not, and has never been, the weakness of Donald Trump or his administration. Sure, Trump would love to have been able to rule like Xi Jinping, but that’s not how our government works. He didn’t declare a national emergency, so FEMA wasn’t actively running the crisis response. He didn’t invoke the Stafford Act, so the funds had to be appropriated by Congress. These are political arguments, and they are perfectly valid arguments.

The real problem these attacks on federalism are gunning for is not how the government responds to a crisis. It’s that they don’t like federalism. They don’t like the Electoral College, or equal representation of states in the Senate, which has judicial confirmation power, and power to “advice and consent” to treaties. They don’t like that Montana has the same number of votes as New York or California. They’d rather make state governments administrative units of the federal government.

They very nearly have their way in many respects. In education, transportation, commerce, and tort law, most states have to go along with Uncle Sugar, or they get no sugar daddy money. But states can go a different way if they so desire.

A properly running federalist response to a pandemic should be that the CDC and the PHS coordinate with states and commercial partners, along with other federal agencies like the FDA, to do the science, develop and/or approve testing, and pursue a vaccine. The state health departments should be responsible for implementing those resources, and FEMA should assist as it can.

Our system is broken, as everyone looked to the CDC and FEMA to do everything. States sat on their hands, or took over hand sanitizer production using prison labor. States like Washington could have and should have pursued their own testing earlier, but they waited for the federal government, as they’d been trained to do. Companies waited until President Trump called them to the rose garden before reacting other than to send a billion emails about how they value your safety and how they’re doing extra hand washing.

We don’t need more lemming-leader control from Washington D.C. We need less of that and more state and citizen action. On one hand, California defies federal laws and maintains sanctuary cities, but on the other, expects the federal government to come in and cure COVID-19.

Regardless of Trump’s response (or bungling of it), a properly functioning federal republic would have the states charge ahead, and the federal government play catch-up. When it suits the states, they do this, but not in “crisis” mode. It’s like they freeze. They’ve been conditioned to freeze and wait for directions.

Perhaps this health crisis will be a lesson that states should seek more coordination and less control by the Feds. But instead, it will probably result in exactly what the Thompsons and Kayyems of the country want. The federal government will “fix” what went wrong by taking even more control from states, and from us citizens.

Let’s say, for the sake of argument, that COVID-19’s big threat passes in April, and thus validates Trump’s early prediction. Let’s say it kills under 100 people and sickens 15,000. Let’s say the total number of Coronavirus infections is under 100,000, making Trump right from the get-go (but still wrong in his implementation).

Will the anti-federalists still be screaming to give him more control in the next crisis? I believe they’ll be marching for more sanctuary cities and defiant states. They’ll positively be Tenth Amendment fanboys and girls. That is until the Electoral College does something they don’t like (like elect Trump to another term).

No, the problem isn’t not having enough central control. It’s having too much federal control without authority. We really should return power to the states, and stop reading such reruns of how federalism is bad. Three cheers for federalism, and may we return to it soon.

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