John Kincaid is the Robert B. and Helen S. Meyner professor of Government and Public Service at Lafayette College, Easton, Pennsylvania, USA, and President of the Center for the Study of Federalism.
The U.S. response to COVID-19 marks one of the country’s most ignoble moments. The response has been hampered by partisan polarization and misunderstood federalism.
The first COVID-19 case was diagnosed on 21 January 2020 in the West-coast state of Washington. The patient had visited Wuhan, China. COVID-19 reached New York from Europe. It circulated in the New York City region for several weeks before being diagnosed on 1 March. The first federal-government response was on 31 January when President Donald Trump barred entry of most foreign nationals who had recently visited China. On 10 May, the United States had more than 1.3 million cases and 78,771 deaths, for a death rate of 240 per million people compared to 751 for Belgium and 130 for Canada.
The United States has experienced increasingly severe partisan polarization for several decades, due partly to centralization which nationalized many issues previously decided by the states. Democratic and Republican party officials and voters responded to COVID-19 differently, although both parties acted belatedly. Once COVID-19 became a widespread public concern, Democrats portrayed the virus as a grave threat requiring a strong, uniform national response by the federal government, including a nationwide lockdown. Republicans were slower to perceive COVID-19 as requiring vigorous government action; they deferred more to state and local governments and the private sector for leadership. With Republican Trump occupying the White House, the federal government did not leap to lead.
Local officials in the six-county San Francisco area acted first by issuing stay-at-home orders (SAHOs) on 16 March. (SAHOs close non-essential businesses and require citizens to remain home except for essential travel.) On 19 March, California’s Democratic governor issued a statewide SAHO. The Democratic governors of Illinois, New Jersey, and New York followed quickly. Of the first ten governors to issue SAHOs, nine were Democrats, even though only 24 of the 50 governors are Democrats. Research suggests governors responded to their constituents. Citizens in predominantly Democratic states supported earlier and more extensive SAHOs than did citizens in Republican states.
Similarly, public pressure to ease SAHOs is greater in Republican than Democratic states, although most states are following federal-government guidelines for reopening. The Democratic governors of California, Oregon, and Washington are coordinating a regional reopening, as are seven Northeast Democratic governors and five Democratic and two Republican governors in the Midwest. Public approval ratings of most governors have been higher than those for President Trump during the pandemic.
The governors issued SAHOs because the states, not the federal government, possess the police power. This is the power to legislate for the health, welfare, safety, and morals of citizens. The federal government has only limited, delegated powers. The police power is among the undelegated powers reserved to the states by the Tenth Amendment (1791) to the U.S. Constitution.
President Trump almost triggered a constitutional crisis on 13 April when he declared he had “absolute” and “total” power to override the governors and reopen the economy. He called resistant governors “mutineers.” But Trump retreated the next day after a backlash from governors, members of Congress, and constitutional scholars. The president then held a conference call with the governors and pledged to cooperate with them to reopen the economy. For Trump, this is also a way of shifting blame onto the governors for the economic crisis induced by their SAHOs. By 30 April, unemployment reached 14.7 percent.
The president lacks clear authority to issue a nationwide SAHO, although, given centralization, a politically charismatic president might have been able to conjure up a persuasive rationale. The president can bar foreign nationals from entering the United States and blockade states’ borders to prevent interstate disease transmission, but, constitutionally, he cannot reach into states to close or open schools, restaurants, and so on.
In late March, Congress overcame partisan gridlock to enact the largest stimulus package in U.S. history–$2.2 trillion for public health, worker protection, and economic recovery. It includes $256.1 billion for state, tribal, territorial (e.g., Puerto Rico), and local governments for medical and non-medical purposes. But there are equity concerns. An Associated Press analysis found small states getting proportionately more aid. Alaska received almost $3.4 million per positive COVID-19 test. New York received $24,000 and New Jersey, $27,000. This maldistribution is due partly to overrepresentation of small states in the U.S. Senate.
The law also authorizes the Federal Reserve bank and U.S. Department of the Treasury to provide up to $500 billion to keep the municipal bond market liquid. This will help state and local governments borrow to cover lost revenue from drops in their sales and income taxes. However, polarization has so far blocked further legislation.
The U.S. House, controlled by Democrats, wants to increase federal aid to state and local governments by about $1 trillion. The Republican Senate is resistant. U.S. Senate Majority Leader Mitch McConnell ignited a constitutional firestorm on 22 April when he said states should declare bankruptcy. He retreated under withering criticism from some fellow senators and most House members, governors, and constitutional scholars.
States can default on debt like any sovereign, and some states did so in the nineteenth century, but there is no mechanism for state bankruptcy. Bankruptcy regulation is an exclusive federal power under the U.S. Constitution. Federal bankruptcy law allows municipalities to declare bankruptcy through federal bankruptcy courts, but because municipalities are creatures of their states, they can do so only if explicitly permitted by state law. Any federal law authorizing states to go to federal bankruptcy courts might be found unconstitutional by the U.S. Supreme Court and would, in any event, signal a surrender of state sovereignty to the federal government.
Congressional Democrats and Republicans will soon compromise on a new aid bill, and President Trump will sign it, although it will contain conditions reinforcing centralization. States will continue leading the COVID-19 response, but the crisis will not likely induce significant change in the distribution of power in the federal system. The governors’ assertion of their states’ police powers, along with President Trump’s lackluster performance, will ensure that the gradual centralization occurring since the late 1960s will not be pushed into high gear by COVID-19.