COVID Federalism

By Charles C. W. Cooke

Thursday, April 16, 2020

Whatever mistakes President Trump has made in his handling of the coronavirus outbreak — and he has indeed made mistakes — we should not count among them his being bound by the American constitutional order.

It has been hard to keep up with the narrative of late. Is the key political threat before us that Trump may use this moment of national crisis to consolidate his power and become a dictator? Or is it that he may act as a feckless and indifferent buck-passer who refuses to take the tough decisions that the country needs? And how about the response to the virus specifically? Should we be worried that the presidency represents a single point of failure, and that its incumbent could therefore get us all killed with just one false move? Or should we be alarmed by the myriad approaches that the White House has permitted the nation’s governors to take? Nobody seems quite sure.

Predictably, President Trump himself seems not to know the answer to these questions, which is why he has flitted so erratically between insisting on the one hand that the states must make their own decisions about quarantine and everything else, and, on the other, declaring that these adjudications are the preserve of the federal government. In this schizophrenia, Trump has been joined by the political class, the press, and the commentariat, many of whose members have switched seamlessly between calling for vigorous national intervention and fretting aloud that such intervention would be un-American. For nearly two months, this indecision has infected our national conversation.

Some of the yo-yoing on display has been the product of mindless, gainsaying partisanship. Some has been the result of our modern tendency to transmute all political questions into referenda on the fortunes of the incumbent president. And some has been the consequence of Donald Trump’s penchant for flatly contradictory opinions, which are often issued without note within the same sentence. Most of it, however, has been the upshot of our having forgotten how the country is supposed to work. By design, the federal government plays a specific and limited role in the American constitutional structure, with the remaining functions having been left quite deliberately to the states, the counties, the cities, and so forth. President Trump can — and should — be judged on how he has fulfilled his responsibilities as the head of the executive branch. But, in order to make that judgment, we will need to remember what those responsibilities are and what they are not. “I alone can fix it” may have been an effective campaign vow — and, it seems, an ongoing rhetorical temptation — but it is not how the United States works in practice. Here, authority is fragmented. So, too, must be praise and blame.

That the highest law in the land outlines this arrangement is, by itself, reason enough to demand it be followed to the letter. The Constitution is a contract, not a suggestion box. And yet, even in the age of coronavirus, federalism has more than the legal status quo to recommend it. Now, as ever before, the federal system is the best way of arranging power, responsibility, accountability, and information in our boisterous, diverse, continental republic.

This, I accept, is not a fashionable conceit. In recent years, outlets such as Vox and The New Republic, along with many writers from the opinion pages of the New York Times and the Washington Post, have taken to presenting our federal system as an anachronism, and to casting the existence of semi-sovereign states as an irrationality at best and an obstacle to progress at worst. In this, they have been joined by a growing coterie on the political right that has come to believe that fealty to the constitutional order is a luxury that the country simply cannot afford. As one might expect, our current predicament has increased the volume of these critiques. “There are no federalists in a pandemic,” I have been told recently. But this is incorrect, for I am one. And, if you’re not, you should be, too.

Why? Well, because the insights that led to the establishment of a federal system of government in this country remain wholly relevant — yes, “even” during a pandemic. It is as true today as it was three months ago that the United States is home to an extraordinary patchwork of people and places, and that these people and places require different governance. It is as true today as it was three months ago that the most efficient way to glean political information is to place oneself as close to the source as is possible. And it is as true today as it was three months ago that our trust in our institutions is linked inextricably to their proximity to us. These are extraordinary times, yes, and we are witnessing the government take extraordinary measures. But it is a blessing that these measures are being taken by people who are of our communities. The best way to learn a language is to immerse yourself in it, not to read a book about it. So it is with politics. As a rule, local officials comprehend the language and tone of their localities in a way that faraway experts simply cannot. “I need you to stay inside for a while” sounds a lot less threatening from a guy with an accent similar to your own.

And it sounds even less threatening when coming from the guy who lives down the road. So relentless has been the focus on whether this official or that official has given this order or that order that we have largely ignored just how much spontaneous self-organizing has taken place over the last month. I have watched with mild irritation as the governor of Florida has been criticized in the national press for waiting until April to issue a stay-at-home order, the apparent assumption of his critics being that until the order was finalized we Floridians were living it up with abandon. Rest assured that we weren’t. Where I live, the restaurants closed a month ago, the beaches and the malls closed three weeks ago, and the liquor store has had a “Don’t panic-buy” warning in its window since the end of March. By the time that Governor DeSantis made it official that we are expected to stay in our houses, I wanted to ask him, “Sure, as opposed to what?”

I have never been fond of Louis Brandeis’s famous suggestion that federalism allows the states to serve as “laboratories of experimentation” because I have always recoiled at the implication that there is a “correct” answer that might be divined by one polity and then applied equally to all the others. The purpose of federalism is not to allow the arbiters of taste to tinker until they find a solution and then to export that solution universally, but to allow citizens who have differing conceptions of the good life to live peacefully together under the same flag. And yet, I have thought of late that the coronavirus outbreak represents a happy exception to that objection. Indeed, here the word “laboratory” applies quite literally. All of us, irrespective of background, wish to see the end of the pandemic. Where we may differ is in how we aim to do that, and in what measures we deem appropriate given our circumstances. New York City, by its nature, will require different rules than will rural Wyoming. States with beaches will inspire different behavior than will states with landlocked plains. Texas, as ever, is a different place from California.

The federal government has a real role to play in this crisis. It must remain firmly in charge of our immigration policy, of our foreign policy, of interstate air travel, and of all the other areas that cannot practically be divided by 50. It can borrow money, which makes it an ideal purveyor of monetary relief measures. It can serve as a central coordinator between the states, in such cases as they wish to act in concert with one another. And it can get out of the way by lifting many of the restrictions that, little by little, its agencies have inflicted upon the country over the last century or so. It should not, however, be regarded as a panacea or a scapegoat. It has a job to do, and it must do that job well. Beyond that, it must be seen as what it is: one cog, in a larger machine, with a flawed human being at its control panel.