The COVID-19 pandemic, along with the economic and social crises attendant on it, are testing the courage and ability of governments around the world. At the same time, the United States is facing an old – new phenomena in governance, the principle of Federalism. The question was whether the state governors or the federal government had the right to order quarantines and then reopen the country. What is the importance of the principle of Federalism in the governmental arrangement of the Unites States and how do you see it now, through the eyes of the legal historian?
In the United States during the COVID-19 pandemic, we have seen a limited resurgence of the principle and practice of Federalism. The governors and legislatures of the various states have made different decisions about closing factories, businesses, and churches; ordering residents to stay at home; prohibiting or limiting private gatherings; requiring masks or other protective gear; and so on. They have also set different time frames for all of these. Now, we are in the phases of re-opening. Almost every state has something it calls “Phase 1,” “Phase 2,” and so forth. These have different meanings in each state, and different time frames. The Federal government is playing little role in making these decisions.
In dealing with this pandemic, the differences between the states and the relatively minor role of the Federal government are not because of any great Constitutional struggle or principle. It is simply the result of several particular factors. First, in the United States there is hardly any precedent for dealing with such a contagious disease. The last pandemic we faced was in 1918 with the Spanish flu. The 1918 pandemic was far worse than this one has been so far in terms of deaths, but most Americans just carried on as normal with minimal restrictions. Second, the severity of this pandemic varies a lot depending on factors like living in dense concentrations. It is important to remember that this is a very large country geographically. The United States covers 9.83 million square kilometers. For comparison, all of Europe combined, including the European part of Russia, is 10.18 million square kilometers. (A French friend of mine once told me, totally seriously, that when she visited California she wanted to make a day trip by car from San Francisco to Los Angeles and back. She was taken aback when I laughed. She was surprised to learn that the distance between San Francisco and Los Angeles is 615 kilometers.) We have vast differences in geography, climate, and population dispersal. Some states have huge cities, others no large cities. So, it is not that surprising that during this pandemic, differences between the states are permitted. Third, it has been very unclear what exactly the best strategy is in dealing with this new virus. So again, the states have been allowed to experiment somewhat.
States’ rights have been weakening at least since the “New Deal.” How do you evaluate the recent measures during the pandemic?
I don’t think that these recent differences among the states portend any large shift in the direction of Federalism. Federalism has been undermined for a long time, starting well before the so-called “New Deal” in the 1930s. During and after our massive Civil War (1861-1865), the Federal government gained large new powers. At that time, the name “the United States” became singular rather than plural. This was an enormous symbolic change. Industry and markets became national in scope, and so did government regulation. A huge change, probably the most important ever in the history of our country for Federalism, happened in 1913. In that year, the Sixteenth Amendment to the U.S. Constitution was ratified. That Amendment gave the national Congress the power to impose a Federal income tax directly on individuals. As always with government, taxation is the key.