By Morgan Sandhu, J.D.
Federalism sits at the very core of American government. Yet, the coronavirus pandemic has pushed federalism under the microscope, exposing its strengths and weaknesses in turn. While a number of other countries also have federal systems,[1] federalism has been uniquely important in the United States’ response to COVID-19. Since the Trump administration largely abdicated responsibility to the states, there was virtually no unified national response. Thus, each state’s response became particularly important. States have also had wildly divergent responses to the pandemic. President Biden’s tenure began with federalism in tatters and the United States continuing to struggle to contain and control COVID-19. Further, the ongoing vaccination campaign requires a high level of coordination between the states and the federal government, once again raising similar questions about the efficacy of the United States’ multi-layered federal system.
Federalism tested:
Federalism recognizes that there is a role for both the states and the federal government in policy making. Many scholars have focused on the strain that COVID-19 has placed on the American federalist framework. As the Brookings Institute reported, “The traditional story of federalism recognizes that the national government can make policy in some areas, while the states reserve the right to regulate in other areas. However, as the pandemic has highlighted, things are not always that clear-cut. The constitutional boundaries between state and federal authority are increasingly difficult to ascertain.” Similarly, the lines of political accountability may be equally blurred. Further, federalism can leave local, state, and the federal government at odds with each other, at times even working at cross purposes.
While any crisis may test federalism, COVID-19 has been specifically challenging, laying bare pre-existing dynamics and inequalities between the states. As a number of public health scholars recognize, federalism can exacerbate inequities, especially in a public health crisis. For example, many of the states with the deepest needs and highest rates of current COVID-19 transmission are poorly equipped to respond to emergencies due to low taxes and distrust of government, leading to inadequate infrastructure. Further, in the first months of the pandemic, states were often pitted against each other, competing for critical supplies like PPE and ventilators.
The federal response to coronavirus was “alarmingly slow to develop” and relied primarily on voluntary compliance. There was little unified national action. As a result, the “defining feature of the U.S. response to COVID-19 . . . [was] localized action against a threat that lost its local character [months] ago.” The local response has been patchwork; some states and localities have implemented aggressive disease-mitigation measures, including mandatory mask orders, stay-at-home orders, business closures, and required quarantine for out-of-state travelers. Others have not. Notably, given the borderless spread of COVID-19, some regions have formed coalitions of neighboring states to coordinate their response and prevent the spread. Federalism has provided the flexibility to states to respond. Nevertheless, the lack of a national response has almost certainly led to the impact of coronavirus in the United States being far worse – “When dealing with questions of contagion, a novel experiment in one state can easily endanger the rest of the country.” Further, politicization of the pandemic and the accompanying orders has led to drastically different state responses; without a unifying federal scheme, there is no minimum guaranteed level of safety. Without national coordination states have been forced into direct competition with each other, especially early in the pandemic, for critical medical supplies.
At times, individual state’s actions seemed to challenge the very premises of federalism. The unified nature of the United States proceeds from a promise of free travel and unburdened commerce between the states. As the Supreme Court has explained, “The word ‘travel’ is not found in the text of the Constitution. Yet the ‘constitutional right to travel from one State to another’ is firmly embedded in our jurisprudence.” But, the COVID-19 pandemic often threatened this promise, as states attempted to protect their citizens through quarantine and travel restrictions that frequently functionally barred out-of-state travelers.
Despite the many challenges it created, federalism also occasionally fulfilled its promise. As one author put it, “Still, a varied response is better than nothing. If responsibility for addressing the coronavirus fell strictly on federal shoulders, the situation might be even more dire, given Trump’s laissez-faire approach.” In contrast, a reinvigorated local approach by the 50 states and thousands of localities demonstrates the critical role they play in ensuring citizens’ well-being.
Case study: vaccination
One specific area where federalism concerns have been paramount is in the distribution of the COVID-19 vaccine. President Trump’s approach is well summarized in his December 30th tweet: “The Federal Government has distributed the vaccines to the states. Now it is up to the states to administer. Get moving!” The federal government’s vaccine distribution has been bumpy; states have once again been left to fill the void. Here, federalism has failed. As one professor describes it, the current vaccination effort is jumbled:
“Success depends on interlocking the roles of the key players: the federal government, in coordinating the production and distribution of the vaccine; state governments, in setting priorities for who gets vaccinated when and where; county officials, in resuscitating the nation’s staggering public health system; municipal officials, in connecting their citizens to the vaccine; and private companies ranging from CVS to Walgreens to Walmart, among others, to administer the vaccine, to UPS and FedEx and the airlines to get the vaccine to their doors.”
Under the Trump administration, each state set its own vaccination prioritization, often breaking with (voluntary) federal guidance. This patchwork has created confusion and uncertainty about when people can be vaccinated, particularly in light of demand for vaccines that far outstrips supply. At times, private actors like hospitals have been making the decisions and doing so in ways that do not comport with state guidelines. In turn, federal leaders failed to issue clear guidance on how vaccines would be allocated, when they would arrive, and what can be excepted going forward. Accordingly, states have struggled to make informed policies or figure out how best to move forward. Rather than a collaboration between the federal government and the states, there has been a vacuum that states are struggling to fill. This is only further complicated by the logistical hurdles posed by the vaccine itself, such as specialized storage requirements and the need for two doses. Thus, vaccination is currently proceeding far more slowly than expected. For the vaccination effort to ultimately and quickly succeed, a revitalized federalism that better coordinated between the state and federal levels was necessary.
In recognition of this, President Biden had planned to create a national vaccination plan, and requested $20 billion in funding, in part to build mass vaccination centers and send mobile vaccination units to underserved areas. Over his first months in office, this plan morphed. On March 11th, 2021, President Biden directed all states to expand eligibility to the general public by May 1st, announced a planned increase in vaccination centers, and expanded the category of eligible vaccinators. Most states have since announced plans to follow Biden’s directive and are rapidly expanding eligibility. The overall pace of vaccination has dramatically increased, with an average of 2.5 million shots being given per day.
Transition from Trump to Biden: clues as to what may come
President Biden’s coronavirus response has been and is expected to remain starkly different than that of President Trump. President Biden centered coronavirus as a critical issue that his administration plans to tackle early on; it is almost certain that the federal government will play a much larger and more dominant role in his administration’s response to COVID-19. Similarly, as discussed above, President Biden has articulated a more hands-on approach for vaccine distribution. However, it remains unclear exactly how President Biden will generally approach federal-state relations. One of the best insights into “the former vice president’s approach to federalism comes from his work in directing the Obama administration’s American Recovery and Reinvestment Act.” The core of that work was pumping a large part of $800 million in funding to state and local governments; President Biden emphasized speed and transparency, entrusting the states with how to use the money but committing to real-time oversight. He has indicated that the federal government must play a more central role in combatting coronavirus, which will re-orient the balance of policy between state and local government and the federal government. This changed response also recognizes the ongoing need for collaboration between the states themselves, with President Biden working directly with governors to coordinate cross-state collaboration.
[1] For an excellent compilation of international articles and perspectives on Federalism and COVID-19, see https://www.mcgill.ca/federalism/federalism-covid-19-pandemic where a team of scholars has created a compendium of resources.
This article was originally published on the COVID-19 and the Law blog
Morgan Sandhu graduated from Harvard Law School in May 2022.
