Fighting a Pandemic under Federalism

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What is the appropriate distribution of power between the levels of government—local, state, and national? Woodrow Wilson called it “the cardinal constitutional question.”   Our republic’s founders called for a constitutional convention to address it.  We fought a civil war over it.  It’s been a key explanation for the ongoing differences between liberals and conservatives and the major political parties. Now, we’re trying to fight a pandemic in spite of it.  America’s system of decentralized political power, known as federalism, created out of compromise at the founding, has continually blessed and cursed us with its crazy-quilt patchwork of responsibilities for the different levels of government.   It’s during times of crisis, though, that the strengths and weaknesses of our system are starkly illuminated.

​Originally, the national government was weak; power rested with the states, and we almost perished because of aninability to coordinate effective responses to the economic and security challenges confronting our new nation.  As a remedy,the founding fathers proposed a stronger national government and specifically limited state authority.  States’ rights advocatesobjected, which threatened the new constitution’s ratification.  To placate those interests, the framers added the 10th Amendment in 1791 as a vaguely worded recognition of state power.   To wit: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”   Powers arising from this provision are the “general welfare” and “police power” duties; state and local governments are expected to protect the health, safety, and welfare of their citizens.  State and local lawsaimed at this goal essentially trace their authority to the 10thAmendment, with an evolved system of over 90,000 local governments, many of them special governments like health districts, working to protect people’s welfare on a daily basis.

Countries with stronger national governments, including democratic ones, attacked the coronavirus pandemic from the outset with a top-down approach, and in several cases, e.g., South Korea, Singapore, Israel, and Taiwan, were able to slow the virus’ spread.  In contrast, our nation’s front-line of attack emerged piece-meal out of our massive, decentralized system.  This allowed for flexible and innovative social distancing and lockdown policies in many jurisdictions, but also legitimized inaction and denial of the threat in many other states and locales.   So here is where the paradox (or curse) of our system lies.  While we love our tradition of local control, not since the civil war has it so clearly contributed to the death and destruction of many American lives, with more tragedy to come.   Now that an aggressive, coordinated, national offensive is needed, some state and local leaders are still balking, precious time has been lost, and catching up will be even more costly in terms of lives, health, jobs, income, and security.  Should we “re-found” the answer to our “cardinal constitutional question” in order to form a “more perfect” union? Life, liberty, and the pursuit of happiness are literally at stake.

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