federalism.pdf
The document was eighteen pages long, bearing all of the hallmarks of management consultancy: clean sans-serif fonts, wide margins, and above all, an irreducible vagueness. In it, the White House suggested that states should proceed to re-open their economies after meeting a series of “gating criteria.” A “downward trajectory of documented cases” over a fourteen day period, or a downward trajectory of “positive tests as a percent of total tests.” Were these the Trump administration’s recommendations? The evening news suggested as much. Yet the text that followed the asterisk, as ever, told a different story:
State and local officials may need to tailor the application of these criteria to local circumstances (e.g., metropolitan areas that have suffered severe COVID outbreaks, rural and suburban areas where outbreaks have not occurred or have been mild). Additionally, where appropriate, Governors should work on a regional basis to satisfy these criteria and to progress through the phases outlined below.
Are the states responsible for ramping up testing — which is far behind where it should be — to meet these criteria? What will happen if governors and legislators disagree on what counts as a “downward trajectory?” And if a state “re-opens” quickly only to yield a new spike in cases, should we blame the governor or the President?
Neither the document itself, nor the coverage of it, nor the legal debate about the President’s authority to require states to “re-open” that kicked off the week, can help us answer these questions. To paraphrase Richard Neustadt, the probabilities of power in American federalism do not derive from the literary theory of the Constitution. Instead, as my coauthors and I argue in Obamacare Wars, what matters is how elected officials use the raw materials at their disposal, either to define the logic of the situation or to elicit (or resist) compliance.
The “Opening Up America Again” PDF is a pristine example of how presidents use exhortation as a source of leverage. The document itself is a material inscription of a generic set of federal-state relationships. Rather than admitting that he is deferring to the states, the document projects the image that the President is delegating to them. They can “call the shots,” because Trump has allowed them to. And rather than take responsibility for demanding a quick re-opening of the economy, the document simply repositions economic growth as the central policy goal — allowing state and local officials to dispute the details. Its vagueness is thus not a bug, but a feature. Its purpose is to push the states full speed ahead towards ending social distancing while accepting blame for the oncoming consequences.
For seasoned observers of federal-state relationships, Trump’s actions here may seem puzzling. While the administration is encouraging states to re-open their economies quickly, the PDF hardly seems to use the fiscal and administrative tools at the President’s disposal. It does not inspire confidence that the federal government will meet the requests of the National Governors Association for a “rapid and exponential increase in availability of COVID-19 tests and testing equipment, fully financed by the federal government, and with federally coordinated allocation” as well as full implementation of the Defense Production Act. Moreover, Trump’s response seemed not to leverage the White House’s capacity to convene governors through the Office of Intergovernmental Affairs. Indeed, his proposed task force on reopening the economy seemed not to include a single representative of state and local government.
Yet Trump’s failure to deploy the standard tools of intergovernmental persuasion — the fiscal carrots and regulatory sticks — hardly suggests that he prefers a less than aggressive to “restarting” state economies. Indeed, while Presidents have long been seen as managers of “the economy,” economic activity in the United States is still highly contingent on the actions of the states. Trump’s reticence to use these tools of persuasion is, instead, emblematic of the federal government’s long-run underinvestment in the public-health capacities of the states. Since the Great Recession, public health spending has declined in both per-capita terms and as a share of total health expenditure. Because states cannot engage in countercyclical spending, federal fiscal policies matter here. The Affordable Care Act initially promised to increased public health funding by $15 billion dollars. Congressional Republicans cut the ACA’s public-health fund nearly in half by 2012,; a year later, budget sequestration cuts went deeper still.
Built-in fiscal constraints make it impossible for state and local governments to manage either the current public-health or fiscal crises on their own. Yet at the federal level, austerity has helped to gut the infrastructure that facilitates intergovernmental collaboration. The Federal Reserve’s $500 billion debt facility for state and local governments will no doubt help to alleviate fiscal pressure on states. Without massive federal investment in public-health resources, however, state officials may be increasingly tempted to interpret the White House’s “gating criteria”, or even the advice of their own public-health agencies, in a dangerously casual way. [Pay careful attention to how the statements of governors and legislators change as their states’ revenue projections are gradually revised.]
The last four presidential budgets — if nothing else — suggest that the administration sees little percentage in leveraging fiscal or regulatory tools to elicit cooperation from the states. Instead, Trump is betting that he can make the prolongation of social distancing politically intolerable for a share of governors large enough to generate national policy diffusion. If you require an adjective, call it agonistic federalism.
Less than a day after “Opening Up” was released, Trump revealed in greater detail his approach to persuading governors, not through fiscal carrots and regulatory sticks, but through animating far-right protesters:
In a series of all-caps tweets, Mr. Trump declared “LIBERATE MICHIGAN!” and “LIBERATE MINNESOTA!” — two states whose Democratic governors have imposed social distancing restrictions that have shut down businesses and schools and forced people to remain at home. He also tweeted “LIBERATE VIRGINIA, and save your great 2nd Amendment. It is under siege!”
When the PDFs fall silent, the tweets speak.
