Contagion and Partisan Federalism

The COVID-19 pandemic has been a proving ground for federalism, or at least for takes about federalism.  Mayors shut down beaches and then are overruled by governors.  Governors request vital medical supplies from the federal stockpile but the President refuses, saying that states have primary responsibility for the crisis and the federal government is a “backup” – then a week later says that his authority as President is “total” and he can unilaterally order the economy to reopen.  Meanwhile, governors in the northeast and the west are discussing (arguably unconstitutional) multi-state pacts to coordinate a strategy for reopening.  What can we conclude about federalism during this unprecedented crisis?  Does the devolution of power enable cities and states to act decisively, or do we need more centralization so the executive can fashion a uniform response?  Is the diffusion of power a check on Presidential malfeasance and incompetence or a recipe for chaos?

Fans of federalism often say that states and local governments are “laboratories of democracy.” They can freely experiment with solutions because the consequences of failure are limited.  But the “laboratories” metaphor has always been a strained one because cities and states are so highly integrated with each other that the decisions of one city or state often have significant extralocal impacts, and a global pandemic is an almost too on-the-nose example of a problem that does not respect local borders.  In addition, the limited horizon of local decisionmaking often leads to short-sighted and parochial actions that ignore the global consequences of local decisions, as is evident from the resistance of many localities to the siting of testing centers or placement of COVID-19 patients in their communities.  Aside from that, would we really want to use cities as “control groups” and see what happens when they experiment with divergent responses to the pandemic, as the mayor of Las Vegas recently suggested?

On the other hand, decentralized governments may have an advantage in at least initially responding to crises like this one because they have ready access to local information, less need to scale up, and an incentive to address the problem pragmatically and without the baggage of partisan ideology.  Further, the presence of multiple decisionmakers does decrease the stakes of any one leader’s missteps. For many Americans, indeed, the quiet competence of their mayor or governor is a refreshing reprieve from the noxious buffoonery emanating from the White House.

Diffusion of authority is hardly a panacea, however, for it does not cure the need for a coordinated response to large-scale problems, and such a coordinated response requires a strong or at least a capable central government.  This is why the President’s claim that the states have primary responsibility for addressing the COVID-19 crisis and that the federal government is a mere “backup” is so alarming.  This claim, in fact, has been compared with the philosophy underlying the failed Articles of Confederation, which intentionally created a toothless national government and was replaced by our Constitution precisely because the national government it created was far too weak to address problems of a national scale.

The “backup” rhetoric is more alarming still because it demonstrates how readily the institution of federalism can be pressed into the service of partisan demagoguery.  Pushing the narrative of a weak federal executive has counterintuitively been a key part of Trump’s governing strategy since the first days of his administration, when he issued an executive order barring virtually all federal funding for “sanctuary cities” that was so poorly drafted it could only have been intended to die a quick death in the courts, which it then did.  The goal was not to cut off federal funding for sanctuary cities but to say that Trump would have done so if the liberal judiciary hadn’t stopped him, which allowed him to create a convenient punching bag while also appearing as though he was taking decisive action without actually doing anything for which he could be held accountable. Likewise, calling for the economy to be opened up and touting the efficacy of unproven drugs like hydroxychloroquine is designed to shift responsibility to timid governors and faceless bureaucrats for refusing to take bold strokes, and since we will never know what would have happened in the counterfactual world in which Trump’s advice was heeded, he is free to say that it would have worked if only the haters and losers had listened to him.  Though it may seem contradictory, Trump’s recent reversal on the question of his own Presidential authority did not represent a shift in strategy but an impromptu attempt to save face and assert dominance when presented with evidence of his own impotence.

In Trump’s playbook, the Constitution’s institutional safeguards like federalism and the separation of powers exist to manufacture scapegoats and dodge accountability.  But worse than that, they can also be used as a patronage slush fund to reward political allies and punish enemies.  Notwithstanding the assertion that the federal government is a backup, Trump has been happy to send personal protective equipment to political allies in red states.  This decision promises political upside without much downside since the electoral college makes most blue states irrelevant to Trump’s re-election chances anyway (another feature of modern federalism).  What all this demonstrates is that despite debates about whether  the United States features “competitive federalism” or “cooperative federalism,” what we actually have is partisan federalism, or perhaps reality-TV federalism, in which the governors who praise Trump the longest and loudest win the prize of obtaining life-saving medical equipment.

The craven use of federalism for partisan advantage at the national scale is perhaps the culmination of a recent trend within states.  The last few years have witnessed an explosion in state legislatures overruling decisions by cities and stripping cities of powers they had long exercised.  The strong uptick in incidents of “preemption” has coincided with a demographic trend in which many state legislatures are dominated by conservative Republicans while many of the more populated cities within those states are moving steadily to the left.  Perhaps not coincidentally, the “new preemption” has had a decidedly partisan flavor, with states tending to preempt local governments on hot-button political issues like gun control, immigration, the minimum wage and others. At the meta-level, partisan preemption allows Republican state legislatures to strike a symbolic blow in the culture war against liberals and big cities.

Most disturbingly, partisanship has become so strong that it has substantially affected responses to the pandemic.  Where states have preempted local stay at home ordinances, it has primarily been Republican-controlled states overruling Democratically controlled cities.  Republican governors in general have been slower to order stay-at-home ordinances, which is partially a demonstration of their fealty to the President, whose primary concern has been the effect of the pandemic on the national economy, and partially an expression of a rather extreme commitment to rugged individualism.

Partisan federalism and partisan preemption are especially depressing because they cut against one of the central purposes of federalism, which is to permit the co-existence of different normative cultures within a polity.  In principle, we could neutralize the zero-sum nature of today’s partisan culture war and nevertheless maintain a sense of national identity by enabling more localized authorities to have some autonomy over matters critical to communal self-definition while allowing the central authority to override local control in situations calling for coordinated action.  But in the last few decades two seemingly contradictory trends have occurred simultaneously – the integration of national popular culture and the fragmentation of that culture into partisan enclaves – that in combination have caused matters once considered purely local concerns to become national controversies, each one spun into a possible tipping point in the battle for the nation’s soul.  As the local has become entwined with the global, partisanship has itself become contagious, extending all the way down to the local level.  And for that reason, federalism has not only proven inadequate but has arguably exacerbated the partisan nature of the response to the pandemic.

[Ed. note: This post is part of series of guest posts from scholars at the Center’s recent colloquium on Localism, Popular Constitutionalism, Preemption, and Firearms.]