The pandemic forced Americans to look with new eyes at their system of government. Americans are newly aware of the array of government authorities that can impose restrictions on individual liberties including city council members, town administrators, mayors, county health officials, state legislators and governors. They are also concerned about the mixed messages that emanate from multiple and competing levels of government.
The patchwork of federal, state, and local health guidelines can be confusing and frustrating. One day the local health board sets guidelines for social gatherings, the next day the local school board rejects those guidelines and creates their own. The following week, the governor urges residents to wear face-masks yet depends on counties to set their own mask requirements. The mayor then closes all in-person schooling for a month while the governor argues the schools should be open.
If nothing else, Covid-19 offers a lesson in American Federalism.
Under the 10th amendment and Supreme Court decisions spanning 200 years, the states have primary authority to control the spread of diseases within their jurisdictions. The 10th amendment says the powers not specifically granted to the federal government are reserved to the states. Public health, education, and law enforcement are among those powers.
Accordingly, governors are central actors in pandemic politics. Governors can utilize a broad array of public health tools including state-wide shelter-in-place orders, quarantines, and restrictions on economic and social activities.
At the epicenter of the corona-virus outbreak, Washington Governor Jay Inslee was the first U.S. official to formally declare a state of emergency on February 29. Several days later, California’s Governor Gavin Newsome did so and by March 16th every governor had officially declared emergencies.
A declaration of emergency grants governors additional powers to address crises, including activating emergency response plans; access to funds, personnel, equipment, or supplies reserved for critical situations; statutory immunities and liability protections for first responders; and, suspension, waiver, or streamlining of rules and regulations that may hinder response efforts (Association of State and Territorial Health Officials).
Democrats were quicker than Republicans to declare emergencies. Twenty of twenty three Democratic governors announced emergencies before the Trump administration officially declared a national emergency on March 13. Initially, many Republican governors followed Trump and did not appear to consider the virus a serious threat. Indeed, less than half (12 of 27) declared emergencies before Trump. Within a couple days of Trump’s announcement, the remaining GOP governors had all declared emergencies.
During late March and early April, governors implemented several strategies to combat the virus. In the name of public health and safety, some mandated residents to stay at home and closed all businesses deemed nonessential. Residents could travel for necessities, such as food, prescriptions, and health care, and for essential employment only.
On March 19, California was the first to issue stay-at-home orders, 24 hours later New York. Within days, other prominent states followed including New Jersey, Louisiana, and Michigan. These states were hit hard by the virus and bold actions by governors ultimately flattened their state’s active case curve. Governors Cuomo of New York and Whitmer of Michigan were widely praised by their constituents and achieved considerable celebrity status within the Democratic Party.
Others states like Texas, South Dakota, Iowa, and Florida largely avoided the March virus surge and issued modest stay at home directives or recommendations – Florida toggled between advisory and mandatory. Governors issuing recommendations resisted strong criticisms of their approach. Texas governor Greg Abbott defended his actions noting more than 200 counties did not have corona-virus cases in mid-March. South Dakota Governor Kristi Noem also defended her tactics, calling mandatory stay-at-home orders ineffective in reducing the spread. She cited personal responsibility by individuals and businesses as key to stopping the virus.
Months later, amid a notable rise in South Dakota’s COVID-19 deaths per capita, Noem stuck to her beliefs and claimed government mandates including face mask requirements do not work. After all, despite strict face mask mandates and harsh lock downs, states like Illinois, Minnesota, and Wisconsin experienced significant virus outbreaks. While South Dakotan’s are encouraged to use face masks, they are not mandated to do so. Governor Noem’s unflinching commitment to conservative principals boosted her standing within the Republican ranks.
Finally, from March thru May, governors of Arkansas, Nebraska, North Dakota, and Wyoming did not issue any order requiring or recommending people to stay home. While these states do not include large metropolitan areas, and at the time were not burdened by a surge of corona-virus cases, Republicans controlled both the state legislature and governor’s mansion.
The length of statewide stay-at-home orders by partisan control
While there are other relevant factors, party rule (the so-called trifecta: governor, senate and house) played an important part in determining when stay-at-home orders began and how long they stayed in effect. For example, the first 5 states to announce statewide shelter-in-place mandates were Democrat controlled – California, New York, New Jersey, Illinois, and Oregon. Ohio was the first Republican state to issue orders, then West Virginia and Indiana.
While quicker to announce orders, Democrat controlled states were much slower to end them. For example, California and New Mexico’s stay-at-home orders have been amended several times but never terminated. On average, orders for residents in Democrat states lasted nearly 3 months. Even when outliers California and New Mexico are removed, the average exceeds two months – 64 days.
Compare that to the Republican state average – just over a month at 33 days. Ohio kept its order in place for 56 days while Alabama stopped after only 26 days. The range for Democrats was far greater. California and New Mexico’s orders stretched over 200 days while Colorado ended after a month.
Orders in states with split party control averaged 48 days. A high for Michigan at 70 days and low for Montana at 29 days.
What about the federal level?
For public health, the federal government’s powers are limited but crucial. First, the President can restrict international travel. On January 31, Trump used that authority to limit travelers from China and Europe and curb border crossings from Canada and Mexico. Second, by invoking national emergency powers the President can unlock critical supplies, significant relief funds, and loosen regulations on the provision of healthcare. Trump did so on March 13.
A few days later, Trump issued an executive order that authorized private companies to prioritize and execute government contracts, ensuring the state healthcare systems could procure the necessary resources – including ventilators and personal protective equipment such as masks, gloves and other supplies to meet the expected surge and protect workers on the front lines.
Third, the legislative branch can pass legislation to combat the crisis. In late March, the 116th Congress negotiated and passed legislation designed to soften the twin health and economic crisis inflicted by the pandemic – The CARES Act. The price tag exceeded 2 trillion dollars, targeting 8.3 billion toward vaccine research and development, 104 billion for state unemployment insurance and food assistance, and nearly 2 trillion in direct payments to millions of citizens hard hit by the economic downturn, grants and loans to business and local government, and support for front-line workers.
Finally, the federal government stands as the only entity that can coordinate a truly national response. Many observers in fact demanded stronger federal leadership, especially to expedite and expand the supply of materials and resources needed by the states. Early on, the shortage of tests, masks and ventilators were particularly troublesome and reflected the slow and uncertain approach by the Trump administration.
Some even urged the President to issue a national lock down. However, legal experts suggest that such a centralized federal response would likely draw judicial scrutiny on constitutional grounds. In these circumstances, the federal executive seems to be chief advisor and coordinator only. Recall, public health functions are largely state responsibilities.
Was the Trump administration slow to recognize the health threat the virus posed? Did Trump wait too long to declare national emergency powers? Once Trump recognized the peril, did he exhibit poor management and uneven assistance to the states? What about Congress? It quickly passed the CARES Act but since then cannot compromise to provide relief to thousands of struggling small businesses, millions of dislocated workers, and hundreds of overwhelmed local governments.
The reader can decide. For our purposes, it’s important to remember that federal and state authorities have different functions and different powers. It’s therefore misleading to blame just the President or Congress. It’s equally problematic to point the finger at state governments. The federal and state governments share responsibilities. Under no circumstances would Governor Cuomo or Governor Whitmer have ceded their authority to Trump. They were charged with protecting their citizens. Each took bold steps to do so. Other governors faced different circumstances and responded accordingly. This reflects the unique architecture of American federalism – and the considerable power of the states within our system of government.
From the start, the pandemic tested our system of government and reflected the two parties approaches to public health. Democrats pressed for a more centralized plan while Trump preferred outsourcing many decisions to state and local authorities.
The typical approach to crisis demands cooperation. Local authorities execute at the operational levels and outside resources flow in from state and federal levels. Governors help local communities manage the situation by drawing resources and coordinating strategies across the state. The federal level supports governors and offers guidance and coordinates among the states.
Predictably, the federal government becomes the target of state criticism. It is criticized for doing too much for a group of states and not doing enough for another group. While the most vocal critics were Democrat governors, the Trump administration, undoubtedly, was caught flatfooted by the pandemic.
When 50 states declare an emergency – and unprecedented situation, the cooperative spirit breaks down. Governors did not want to be last in line to secure federal assistance. Knowing necessary supplies were missing or difficult to obtain – personal protection equipment, tests, and ventilators, governors were quick to shut down schools and businesses. If testing kits had been widely available from the start, governors could have known the extent of the outbreak and responded with nuance and developed targeted lockdown strategies. Instead, they feared the worst, closed entire states, began competing with other states for needed supplies, and strongly criticized federal actions.
A frustrated President hastily returned fire, “Respirators, ventilators, all of the equipment – try getting it yourselves.”
In some cases, they did.
Though the pandemic exposed the governing challenges that arise from our unique federal-state structure, it also underscored the strengths of the system.
The Trump administration advanced an unprecedented public-private collaboration designed to accelerate the development, manufacturing and deployment of a Covid-19 vaccine. Called Operation Warp Speed, substantial government investment solved a variety of bottlenecks that typically slow vaccine development and produced several promising vaccines in record time. Millions of doses should be available by late December. An incredible achievement for science and a template for future public health initiatives.
“You can like or hate the Trump administration, but no doubt, it’s [Warp Speed] a huge success – unprecedented success.” said Tinglong Dai, associate professor of Operations Management and Business Analytics at Johns Hopkins University.
But do not be deceived by our news media’s persistent focus on the President and Congress. Life does not begin and end with federal action. In recent years, governors have become more aggressive in contesting federal leadership and attempting to influence policies. The appearance of federal inaction or legislative gridlock on issues offers an opportunity for governors to advance causes and satisfy strong interests in their states. Witness, for example, sanctuary cities, second amendment sanctuaries, and state and local actions on climate change. We can now add to this list health care innovation during a pandemic.
Finally, Covid-19 lay bare the vast political and social differences in the United States and the thousands of governments that reflect those differences. From township, to city, from county, to state, officials are empowered to protect citizens health and safety. Federalism divides power and functions between the federal, state, and local authorities and each level possesses sovereignty and the ability to restrain the power of the others. This was the central compromise at the Constitutional Convention 200 years ago and remains today.