The COVID-19 Pandemic and Federalism: Who Decides?

33 Pages Posted: 27 Jul 2020 Last revised: 19 Oct 2020

See all articles by Nancy J. Knauer

Nancy J. Knauer

Temple University - James E. Beasley School of Law

Date Written: July 27, 2020

Abstract

The COVID-19 pandemic is an unprecedented public health crisis that has prompted an unprecedented response. Drastic and previously unthinkable steps have been taken to “flatten the curve” and avoid overwhelming our health systems. In the absence of a coordinated national response to the crisis, the pandemic has underscored both the promise and limits of the Tenth Amendment. As state and local actors have scrambled to adopt policies to protect their residents and minimize the loss of life, the result has been a patchwork of advisories and orders that reveal stark regional disparities and some confounding inconsistencies. The reliance on state and local actors has produced many innovative programs and novel attempts at regional coordination, but it has also led to direct competition between and among jurisdictions as they vie for desperately needed resources. Moreover, it has elevated the friction between the federal government and state and local leaders to alarming levels.

This essay examines the role of federalism in the early days of the COVID-19 pandemic in the United States. It explores the dangers that arise when disaster relief is politicized and proposes failsafe mechanisms to prevent key institutions from abdicating their responsibility to the American people. The first section reviews our current preparedness and response policy, which is grounded on a strong vision of cooperative federalism where a response is federally supported, state run, and locally executed. The second section uses the lens of comparative institutional analysis to evaluate the shortcomings of this approach, specifically in the context of pandemic planning. By addressing three core institutional considerations – competency, political responsiveness, and stability – it maps out potential gaps that have the potential to compromise response efforts. The third section discusses failsafe provisions to ensure that disaster relief does not fall victim to partisan wrangling. A brief conclusion notes that the reliance on state and local actors in this pandemic has been a pragmatic, but also imperfect, institutional choice because state and local level initiatives are by their nature partial and porous. They are necessarily hampered by the lack of uniformity and certainty that could come from a federal pandemic response and, unfortunately, they are ill-suited to stop a novel virus in search of its next host.

Keywords: COVID-19, pandemic, coronavirus, public health, 10th Amendment, federalism, states' rights

Suggested Citation

Knauer, Nancy J., The COVID-19 Pandemic and Federalism: Who Decides? (July 27, 2020). New York University Journal of Legislation and Public Policy, Vol. 23, No. 1, 2020, Temple University Legal Studies Research Paper No. 2020-14, Available at SSRN: https://ssrn.com/abstract=3599239 or http://dx.doi.org/10.2139/ssrn.3599239

Nancy J. Knauer (Contact Author)

Temple University - James E. Beasley School of Law ( email )

1719 N. Broad Street
Philadelphia, PA 19122
United States
215-204-1688 (Phone)
215-204-1185 (Fax)

Here is the Coronavirus
related research on SSRN

Paper statistics

Downloads
655
Abstract Views
2,487
rank
44,869
PlumX Metrics