Pandemic Federalism
A student should enter the field of intergovernmental fiscal relations with modesty and even humility…It is a field mined with explosives; beneath a placid surface lie some very deep emotions ready to burst into flame at the slightest provocation.
Committee on Intergovernmental Fiscal Relations, U.S. Treasury Department (1943)
Crises, as Peter Gourevitch reminds us, are to countries what reagents are to compounds in chemistry. However unprecedented or unpredictable, COVID-19 has helped to reveal much about the underlying structural conditions that affect the capacity of government to provide for human needs in a moment of peril.
In the last few weeks, Americans have been routinely introduced to a host of institutions whose capacities (or lack thereof) are typically obscure, from the Federal Reserve to county health departments. Google Trends data now reveal a search volume for the term “governor” only matched by days preceding high-profile elections. Hence while political scientists frequently cite the “invisible” American state as a source of democratic dilemmas, COVID-19 exposes another problem altogether: state formations are now ever-visible, yet incoherent and incapacitated. Where do gubernatorial authorities begin and end? Can states really restrict travel? Who is responsible when public-health infrastructures fail? To whom should we direct our appeals for relief? These questions barely scratch the surface, but reveal a small fraction of the public doubts about the capacity of the American state to meet basic demands of the public for protection from complex risks.
These doubts, which I share, are my reason for writing an unnumbered series of entries to come. They are less a product of my own political philosophy than the brutal material realities of American life. Institutions meant to safeguard public health have been stripped bare. Millions lack insurance, and millions more will soon be deprived of it. Access to basic voting rights remains all too easy to deny.
American federalism —with its fissures and fractures — haunts the state of emergency. It is conventionally portrayed as a set of principles, precedents, and rules that bound how public officials use their authority. Madison’s portrait of federalism — which has been indelibly etched into legal opinions and public rhetoric — is that of an arrangement which “balances” the exercise of authority between multiple levels of government. Yet for the last half century, American political scientists have contested this structural vision. William Anderson, who pioneered the study of intergovernmental relations in the 1940s, referred to federalism as essentially a “concept of the mind.” Human beings clothed with authority enact federalism in real time, recombining an interlaced set of jurisdictional principles, resources, and relationships to accomplish a variety of ends. This is why so much federalism scholarship is devoted to the application of adjectives (though we have, as a field, thankfully outgrown the tired references to marble cake and bamboo). The title of this post salutes the genre of Adjectival Federalism Studies. But the genre itself reflects the underlying empirical mess.
If you must think of a structure at all, think of a barren set of platforms. Federalism still implies a set of jurisdictional boundaries and limitations on resources, especially for subnational governments. Yet, especially in the midst of a crisis, pre-existing rules and rituals do not provide a clear guide to how officials at different levels of government relate to their own authority or, for that matter, to one another. Consider the following examples.
— COVID-19 has prompted governors around the United States to rely on ambiguous, rarely-used forms of emergency power, or to make demands on legislatures to provide fiscal support to relief efforts. Jurisdictional conflicts — stoked by partisan tensions — abound.
— As state governments begin to confront the enormity of the pandemic’s consequences, the fiscal and jurisdictional limitations on their capacity to act alone have become evermore visible. The enactment of national relief legislation will hardly be adequate to assist states in filling the chasms of revenue left in the wake of the virus — especially given substantial variation in state finances.
— When it comes to the allocation of public-health resources, a nakedly partisan conflict has opened up between the White House and the states. National infrastructures for disaster relief could soon be overwhelmed.
— New patterns of horizontal conflict and collaboration are also emerging. While governors in states like Texas and Rhode Island have issued executive orders that may violate judicial protections of interstate travel, governors in the upper midwest have been relying on informal pacts to harmonize their social-distancing policies.
If crises make visible the inchoate map of institutions and relationships that constitute American federalism, they also provoke improvisational shifts in authority — with highly variable consequences. Crises can also lead to more fundamental shifts, not merely in intergovernmental relationships but in public philosophies about the appropriate role of state interventions. Making these changes will require, among other things, a careful documenting of the reactions of the federal system to COVID-19.
The anemic US response to the pandemic makes it tempting to simply make a ledger of my grievances with federalism. I plan on yielding to that temptation. But the end of the emergency is not yet in sight. And so, in the spirit of William Anderson and other early scholars of intergovernmental relations, I want to scrutinize the operation of the federal system in light of the most basic human needs. I’ll be interested in how public officials at the state and federal level interpret their own emergency authorities and how conflicts over the exercise of authority are resolved (to the extent that they are). More importantly, however, I want to mark the shifts in authority that result from COVID-19, and their effects on the character and distribution of American suffering.
My hope is that, along the way, fellow travelers––those who study federalism, practice it, or live with its consequences––will join in to contribute their observations.
