Making government work, and work for all.

This article is an excerpt from a piece originally published on Publius. The full version can be accessed here.

Abstract

The COVID-19 pandemic challenges a workable American federalism. The Tenth Amendment to the U.S. Constitution reserves plenary responsibilities to states for promoting health and well-being; but states and their local governments suffer from a significant lack of resources and interjurisdictional competition during major emergencies. In this article, I argue that a president has significant constitutional and statutory authority for pandemic preparedness and, by law, is responsible for leading a coordinated national response necessary to a pandemic. The article outlines the constitutional and statutory authorities available to President Trump and assesses how he used those powers to address the pandemic. It is argued that early, decisive national coordinative systems for containing and mitigating the virus; testing, tracing, contacting, and isolation protocols; data collection standardization; procurement and distribution of supplies; and planning vaccine eligibility and distribution could have reduced the state and local government disadvantages early in the pandemic, saving lives and boosting the economy.

A recent Publius article mentions COVID-19 as the “federalism event of the century” (Goelzhauser and Konisky 2020). In assessing the poor performance of U.S. governmental institutions in combating COVID-19, some scholars place blame on the nature of American federalism, with its division of powers and reservation of significant authority to state governments resulting in fragmentation of authority, policy-making, and implementation. In this article, I challenge this interpretation of the reasons for the poor performance of American governing institutions in responding to COVID-19, arguing instead that U.S. federal officials not only possessed adequate power to address COVID-19 in the crucial periods of preparation and initial response, but also that it was their responsibility to do so. Failures are attributable to President Donald Trump’s refusal to accept his legal responsibility to lead a coordinated and collaborative national response based on statutory laws that guide heath emergencies and catastrophic emergency response. It is also argued that the President’s failure to accept responsibility and exercise existing authority quickly and fully, decisively and competently, increased the problems of state/local capacity and interjurisdictional competition, which led to an excessive loss of lives (Achenbach and Meckler 2020; Hsiang et al. 2020) and increased economic hardship as state and local governments exercised their powers to protect the public.

Public health, not economic recovery, is the focus here because disease containment must occur before strong economic recovery is possible. Issues unanticipated at the Founding of the U.S. Constitution have expanded constitutionally justified national powers during catastrophic events when state/local governments confront unexpected issues that overwhelm their administrative, technical, and financial capacities, and sometimes their political will. COVID-19 respects no boundaries and its demise benefits the entire nation. The “intergovernmental paradox of emergency management” is applicable to a pandemic: state and local governments are at center stage in terms of responsibilities during an emergency, but may be unlikely to perceive of a threat fully, be prepared for it, or possess adequate resources to confront it. The national government must be concerned with jurisdictions nationwide and any obstacles to prevention, mitigation, preparedness, response, and recovery (Cigler 2007). This paradox suggests the significance of the “who’s in charge?” questions related to pandemic response.

The article proceeds by first outlining scholarly arguments that attempt to explain the largely failed COVID-19 response and identifying key omissions in many analyses. In analyzing the design of both the U.S. public health and emergency management systems, I highlight the unambiguous coordinative responsibility required of the federal government in a major health catastrophe, focusing on the major statutory powers and authorities of the president. This is followed by a discussion of the performance of the Trump Administration’s leadership role and coordinative responsibilities set forth by law. A concluding section summarizes why federalism was not the cause of the poor U.S. COVID-19 response.

Federal Government Authority to Respond to Catastrophes

Writing about the U.S. response to the pandemic, McDonald, Goodman, and Hatch (2020) cite numerous articles that accurately depict the bottom-up design of the U.S. disaster response system, which begins with local first responders and acknowledges assistance from state and national governments, as needed. Overlooked, however, is that emergency management adjusts during catastrophic events and that emergency statutory powers become available for a pandemic response that the authors depict as “uncertain due to the novelty of the situation” and conclude that “limitations of federal government authority hinder the ability to lead a response.” Kettl (2020) acknowledges the lack of a comprehensive federal response to COVID-19 and discusses the need for national leadership, but does not examine existing federal powers to assess whether a president possesses what is necessary to lead a national response, suggesting instead that it was President’s Trump’s “choice” and not his “responsibility” by law to lead and coordinate the pandemic response. Like so many other scholars who have assessed federalism’s role in the COVID-19 response, Kettl concentrates on the patchwork of state and local responses throughout the pandemic. In another article, Kettl (2021) focuses on scientific uncertainty, arguing that it made uniting around solutions such as mask wearing uncertain and suggested that the “bigger questions” of when national actions or state leadership are needed remain unanswered.

Kincaid and Leckrone (2020) argue that the federal government responded “vigorously” initially but that “constitutional dualism” resulted in a “lack of authority” to impose key policies such as stay-at-home orders and mask mandates. They note a pattern of “erratic, insufficient, and sometimes destructive” federal support and unproductive use of the media and maintain that the novelty of the virus made the “best” national policy response “not immediately evident” and conclude that the “federal government lacks constitutional authority to command a national response.” They do not attribute response drawbacks to structural flaws in federalism and point to party partisanship and preferences by the president, governors, and other executives that frustrated an effective response. Like Kettl, they refer to “choices” and not responsibilities defined by law. Like Kettl, they do not consider preparation or the effects of the gamut of early national actions on the state/local response. These distinctions are important because a focus on choices/preferences by President Trump can overshadow a focus on legal responsibilities and, thus, accountability.

In contrast to the public administration scholars, some legal (Berman 2020Knauer 2021) and presidential (Rudalevige and Yu 2020) scholars consider statutory powers when assessing the U.S. national response to COVID-19 and conclude that the national government had extensive powers to combat the approaching coronavirus and that it had a legal coordinative responsibility to do so. Preparedness and the earliest stages of the response are suggested to be highly consequential. Scholars at the Max Planck Institute, in addition, examine U.S. pandemic response action within international law (von Bogdandy and Villarreal 2020), adding to an understanding of U.S. national coordinative responsibilities.

Clearly, federal authority is not plenary and there are limits to what federal officials can do. There is no federal power to close or reopen schools or businesses or require individual mask-wearing outside of federal property, or issue lockdown or stay-at-home orders. However, state actions can be encouraged through persuasion, funding, and other incentives. A president can offer clear consistent “guidelines” to states for nonpharmaceutical mitigation (stay-at-home, social distancing); testing, contacting, and isolation protocol; data collection and analysis protocols; clear and consistent criteria for reopening schools/businesses; and vaccination priorities and distribution guidance. Federal officials cannot “command” states to discharge their public health responsibilities, but they do possess a significant degree of statutory grants of power for responding to a major health emergency. In fact, key legislation explicitly states that the president has the responsibility to take the lead in a catastrophic emergency and to coordinate a national response. The choice involved is whether to accept the responsibility.

Limitations of Existing Arguments regarding Federalism’s Role in a Pandemic Response

Existing assessments of federalism’s role in the pandemic can be faulted for failure to incorporate several key concerns:

  1. Presidents and their administrations have both constitutional and expansive statutory powers during major emergencies; but most scholars focus solely on constitutional powers.
  2. The U.S. public health and emergency management systems are flexible, adapting differently to catastrophic events than to “bottom-up” routine emergencies.
  3. With regard to saving lives and reducing the duration of economic disruption, the key focus should be on preparedness/planning and early, decisive response. Containment strategies such as international travel bans and non-pharmaceutical interventions are most important early when it is possible to keep the virus out of a nation and when drugs and vaccines are not yet available. Similarly, testing, contact tracing, and isolation protocols are important early to target interventions by state/local governments and to “buy time.” Standardized coordination of data collection and analysis also is a key to targeted intervention and tracking community spread of a virus. The availability of supplies for health care workers and patient treatment, testing, and vaccinations all call for quick action that avoids excessive costs and detrimental competition. While vaccine development is the best hope for winning the war on the virus, success depends on the ability to inoculate, which not only requires adequate testing supplies and personnel, but also efforts to thwart any vaccination hesitancy of the public. As such, the best approach for examining federalism’s role in a pandemic is to assess actions taken or not taken and with what outcomes in the early days and weeks of the disease. The negative effects of federalism such as inadequate capacity, interjurisdictional competition, an uncoordinated patchwork of policies, etc. within national-state and state-local relations are, in large part, the result of national government initial action or inaction.
  4. Understanding federalism’s ability to fight a pandemic should rely on insights from the literature on federalism and intergovernmental relations, but also that of public law, public health, and emergency management, especially during catastrophes, along with the texts of major laws and existing plans. Using these sources, this article finds support for its conclusion that President Trump and his administration had the legal authority—and responsibility—to lead a comprehensive, coordinated national response to COVID-19 in ways that would help state/local jurisdictions early enough to lessen the widely noted problems with state/local governments’ ability to handle their responsibilities. The questions of who’s in charge of what during a catastrophic emergency are addressed in existing laws.

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Beverly Cigler is a professor at Penn State at Harrisburg and an Academy Fellow.

By No Comment August 16, 2021