In times as dark as these, it can be tempting to wonder whether the American experiment has failed. New York digs mass graves as though out of Boccaccio’s most ashen imaginings; the president of the United States just recommended we all inject cleaning solvent. More than a crisis of the times, this episode feels like a calamitous failure of government. How is it that our national stockpiles were left to languish, our Centers for Disease Control and Prevention was slashed and left to ossify, and our experts’ wise counsel ignored, our alarm bells silenced?
For some, this is symptomatic of a federal system already broken — “outdated,” as Richard Krietner recently opined, an 18th-century dream more papier-mâché than proper governance. As Kreitner bewails, “Neither the paralyzed, sclerotic central government” nor our “arbitrarily determined States” have been able to tackle the crisis laid at our feet. He recommends a radical overhaul of the system — disintegration into loosely cooperative regional networks à la the failed Articles of Confederation — and, in effect, its abandonment altogether.
Such radical solutions might be mere doomsayings, but their premise simply isn’t true. To misconstrue this moment as the death knell of federalism dangerously misunderstands how the pandemic has showcased federalism’s versatility, resilience, and strength. As these endless months have stretched on, American federalism has flexed its institutional muscles not in a hapless rendering of Trump’s ego projects, but squarely in the common defense.
Sclerotic central government? Sclerotic indeed. The failures of the current administration are numerous and plain: As death tolls rose, our self-proclaimed “king of ventilators” smarted against expert advice and peddled the trite, insincere denial of a Neville Chamberlain or a frightened caudillo. Trump’s charge in this crisis — for which he has since claimed “no responsibility” — is to coordinate an informed national plan, gather manpower and funds, make full use of the Defense Production Act, and negotiate meaningfully for supplies on the international market. Unsurprisingly, he has only dithered and deflected.
However, as evidenced by flattening death curves in states like California, Washington, and Ohio, federalism saves states sufficient authority to accrue some of these things on their own. This includes plenary power over their resources — emergency reserves, strategic stockpiles, and taxing powers — and freedom to negotiate with the private sector. Governor Gavin Newsom of California has made impressive use of his executive authority to enter into strategic partnerships with private sector entities from hotels and hospitals to Silicon Valley and the AARP. Governor Jay Inslee of Washington was the first in the nation to declare a state of emergency, granting him access to important special prerogatives and sources of funding within his state’s constitutional scheme — including various emergency planning reserves and operations facilities, emergency powers necessary to implement social distancing, and emergency funds for field hospitals and quarantine centers.
Most importantly, while he might be at liberty to bluster and bully, our Constitution does not grant Trump the authority to forcibly lift the shutdown measures governors have imposed.
The regional sovereignty of state administrations, agencies, and civil service provides a space to accrue localized institutional experience. After battling through some of the country’s most devastating episodes of H1N1 and SARS, Ohio worked to develop efficient and detailed infectious disease response plans. As a result, Governor Mike DeWine was able to quickly mobilize response forces and gather pre-planned arms of the state to quickly pool resources and negotiate collectively on the domestic market.
State governors also retain the unilateral authority, cabined only by their state constitutions and the 14th Amendment, to implement social distancing and stay-at-home measures by executive order without federal mandates or Congress’s approval — significant in a crisis like ours, where meaningful federal guidelines have been conspicuously absent. Most importantly, while he might be at liberty to bluster and bully, our Constitution does not grant Trump the authority to forcibly lift the shutdown measures governors have imposed.
Moreover, returning to the misgivings of some regarding the multi-state alliances, these cooperative efforts similarly hinge on states’ plenary power to direct their own reopenings and are made possible by states’ authority in our federal structure to collaborate and connect — short only of a binding interstate compact requiring congressional authorization. The prescience of these alliances isn’t found in any common ideological leaning, as Kreitner suggests, but in an interdependence driven by pragmatic necessity and resulting from the dearth of a cogent national strategy.
Thus it is hard to see just what Kreitner’s theoretical regional alliances might solve — or how an even more disjointed federalism could correct problems themselves created by a lack of central leadership. The great challenges of our time are global, not regional — climate change, mass migration, interconnected economies, and nightmarish refugee crises — hardly fenced out by the grace of a border and arriving squarely on our doorstep, demanding central cohesion and broad, cooperative efforts. The reason our most pressing issues have seen little progress is not our failure to fracture the United States into smaller subliminal Americas. It is our unwillingness to legally and institutionally improve our system.
The pandemic hasn’t seen problems of government spring up anew; they’ve only caught up with us. The country needed meaningful congressional responses to Trump’s failure to provide states with emergency monies, manpower, and resources. The opposite outcome was all but a foregone conclusion, not only because of the outsized influence of corporate power in politics but because of the failure of previous Congresses to legislatively constrain that influence. Even our right-leaning Supreme Court left them ample opportunity after the Citizens United ruling a whole decade ago to exercise their authority under the Commerce Clause either to extend disclosure and disclaimer requirements or to strengthen shareholder protections with respect to corporate spending.
The true obstacles to policy solutions are not those leaping out of far-flung disunification theories but the boring ones, hashed and rehashed and beaten to death:
▪ Still-unresolved questions of unrestrained misinformation across unregulated platforms, threatening a manipulation of the electorate by not only foreign interference but also by wealthy domestic interests.
▪ Looming threats of voter suppression and election manipulation after the gutting of the Voting Rights Act by Shelby County, made all the more real by recent events in Wisconsin that saw thousands forced to risk their lives at the polls.
▪ The conspicuously absent legislative response to the defanged Federal Election Commission left by Citizens United and SpeechNow.Org, which all but sanctified the role of dark money in our politics by allowing unlimited expenditures in support or opposition to explicitly identified candidates and leaving federal elections vulnerable to ongoing capture.
▪ And the freedom felt by those at the highest levels of government, after the Trump impeachment and before the November election, to engage in corruption, knowing oversight is scant where party allegiances nullify congressional checks and threadbare agencies lack the resources necessary to intervene.
As George Packer elegantly argued in his recent essay for The Atlantic, these unsolved problems have allowed glaring fault lines to emerge across the body politic, only exacerbated in a time of mass unrest: Among them, the gross trifecta of corruption, nepotism, and plutocracy; the practiced, iniquitous sacrifice of our nation’s most vulnerable, not just in moments of crisis but in the social and fiduciary policies that bookend them; and in stark inequalities of wealth, health, and safety that trace along racial and economic lines and transcend partisan divisions.
If we want to move forward on the issues that count, we must break down systemic barriers — not squabble over unattainable fantasies of dramatically new systemic designs. We must mend our beaten body politic as it emerges from the induced coma that prevented collapse in COVID-19; we must immediately attend to the institutional flaws that landed it there; and finally, we must admit defeat in the quest to endlessly palliate the devastation caused by a pig-ignorant president and a complicit and unrepresentative Senate. Neither Trump, nor COVID-19, nor the unhappy marriage of the two broke our federal structure — quite the opposite. But the Republic is still ours only if we can keep it. These challenges of our time — these vital tests of our character — are our generational charge: to succeed or succumb — together.
Laurence H. Tribe, the Carl M. Loeb University Professor and professor of constitutional law at Harvard Law School, is the author of “American Constitutional Law.” Follow him on Twitter @tribelaw.