Friday, May 1, 2020

The Pandemic Has Produced a Radical Experiment in Federalism 

By Peter Suderman - May 01, 2020 at 11:16AM

A little more than two weeks ago, President Donald Trump earned broad condemnation by declaring he has the "total" authority to determine when states reopen their economies. In fact, precisely the opposite is true: The states, not the president, get to make those calls. And that's how it should be. 

Yet concerns about Trump's assertion of unlimited executive control have sometimes been paired with an opposing concern: that there is not enough centralization, that the federal government is refusing to take charge, that Trump should step up and do more. As the White House waffled on closure guidelines in March, former Maryland Gov. Martin O'Malley called the federal response a "Darwinian approach to federalism." New York Gov. Andrew Cuomo has complained that the president "has to put forth a model." Critics have pointed to more centralized measures in other countries and wondered why America can't do the same. The state of Georgia has come in for criticism for moving faster to reopen than other states. Anthony Fauci, the point person for the federal response to the pandemic, said this week that although state governors, mayors, and other local officials know their own areas best, "you want to give them a little wiggle room"—but added, "my recommendation is, you know, don't wiggle too much." 

But states are making their own decisions. A handful are reopening segments of their economies, with the details varying from state to state, and others are preparing to do so in the coming weeks. The result is what The New York Times calls a "patchwork" approach, in which different states make different choices about how to proceed. That's good. A patchwork approach is almost certainly what we need. 

The outbreak has produced a reminder of federalism's essential value: In a country as large as the United States, different localities are going to have different needs. And we may all benefit from seeing the results of a variety of approaches to balancing economic and public health goals. 

Many of those differences are medical. In terms of infections and deaths, the difference between New York City and nearly everywhere else is stark. Even among dense, coastal blue states, there are large differences in outcomes. By the middle of April, New York had 14 times as many deaths as California. That disparity probably has something to do with when social distancing began in each place, but it also reflects New York City's unique structural attributes. It is not just highly populated but dense, and it relies on public transit more than any other U.S. city. 

I say probably, because one of the problems facing policy makers right now is that there's still much we don't know about the virus, how it spreads, and how it eventually kills. There are ongoing questions about how the virus is passed from person to person, with some speculation that it might be exacerbated by air conditioning. The effect of temperature on the virus continues to be debated as well. Even the list of symptoms seems to be growing. (Have you heard of "COVID toe"?) In the face of such persistent uncertainty about the basic mechanisms for transmission and infection, we're best off with a multiplicity of responses, one that assumes there's no single right answer, or at least no obvious one, because too many essential facts remain unknown.

And then there are political considerations: Even beyond the unfortunate way that the pandemic has been subsumed into the left-right culture wars, there are meaningful differences in what different parts of the country want, and will accept, in terms of economic restrictions. More rural, less populous states are likely to have less tolerance for extended lockdowns. (Indeed, a few states never imposed stay-at-home orders at all.) Denser urban areas may be willing to accept more control. 

State leaders might gripe about the lack of direction from the White House, but there are political opportunities for them as well. Several states have formed explicit compacts, essentially working groups to coordinate their own responses. And several governors, including the Ohio Republican Mike DeWine and the New York Democrat Andrew Cuomo, have risen in popularity and profile, in part by bucking Trump. 

It's true, of course, that the national response under Trump has often been lacking: The president has failed to set priorities within his own administration, and he has failed to deliver a clear and consistent message to the nation about the response and what to expect. The Food and Drug Administration (FDA) and the Centers for Disease Control and Prevention made catastrophic early decisions, and at times federal authorities have even blocked state-level efforts, such as when the FDA initially refused to expand a cap on facemask decontamination in Ohio. 

These federal failures—of leadership, of planning, of execution, of communication—are another reason to be glad that the most important locus of control is at the state level. A single point of control is also a single point of failure. The federalist approach means the country is not completely hamstrung by bumbling federal bureaucracy and a hapless president.

The varying responses should also provide something we desperately need: information. In particular, information about what happens when differing levels of economic restriction are applied. 

"It is one of the happy incidents of the federal system," Justice Louis D. Brandeis famously wrote in 1932, "that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country." The same applies today, perhaps more than ever.

The information from these state-based experiments will necessarily be imperfect and subject to broad interpretation, because each state is different. But it will give us tools to keep improving our ability to make better, smarter, more tailored decisions. That's decisions—plural, not singular. Those sorts of decisions are what federalism enables, and arguably more than anything else, they are what we need right now. 


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