Abstract

This paper is a brief overview of how the federal government and states enacted upon existing legislation to tackle the COVID-19 pandemic. It discusses the authority granted to different levels of the government by the constitution and the power the exercised in reality. Furthermore, factors such as government type and political polarization also come into play when criticizing actions taken by authorities and the reaction of the public. Considering the ill-coordinated response of the US government relative to other states, I conclude that a confederation would be better equipped to handle the forth-coming challenges of a pandemic.

Intro

The COVID-19 pandemic brought distress for millions around the globe, but the US, being the 21st century hegemon, was under the spotlight for how it would tackle a global crisis, with many world leaders looking towards the United States’ response for guidance. However, the Trump administration’s response to COVID-19 further exaggerated the situation for many states, and with elections in the midst of a pandemic, both the state and federal government needed to play a decisive role in containing the virus through sheer coordination and precise planning.

Government Response to the Pandemic

The federal government has enacted legislation to stimulate the economy and promote a robust public health response. It has also implemented policies through agency regulations and temporary rules to utilize the funding provided by Congress. State governments have approached the situation in a more varied way, targeting their specific populations with public health policy and economic responses. Local governments have responded within the framework of power delegated to them by their state governments, focusing their emergency powers on policies to protect their citizens and support their municipal economies.

Under the US Constitution, Congress has the sole power to authorize funding out of tax revenue and may do so for those purposes enumerated in the Constitution, including to provide funding for the general welfare of the United States (Article I, Section 8, Clause 1) [1]. During the pandemic, Congress has enacted several public laws providing funding to help government agencies, states, localities, businesses, and individuals respond to the coronavirus. This funding has been designed both to provide for government intervention for public health resources (such as creating testing infrastructure) and to stimulate the economy (in the form of grants for businesses and direct payments to citizens). Congress has passed several key pieces of legislation in response to the pandemic, including the Coronavirus Aid, Relief, and Economic Security (CARES) Act (Pub. L. No. 116-136) [2], the Families First Coronavirus Response Act (FFCRA) (Pub. L. No. 116-127) [3], and the Coronavirus Preparedness and Response Supplemental Appropriations Act (Pub. L. No. 116-123) [4]. In many instances, these laws direct federal agencies to use the funding provided to implement temporary rules in response to the pandemic.

The President may authorize rulemaking through executive orders, and the judiciary may determine whether an agency provided sufficient reasoning to support its rule. An agency may also be called upon to act under an executive order based on authority vested in the President by Congress [5]. There are several examples of federal executive responses to COVID. Firstly, the Family First Coronavirus Response Act by the Department of Labor allows small businesses to provide employees with more paid time off during the pandemic, so employees can adhere to guidelines created in the interest of public health. The CARES Act by the Department of Education aimed to provide colleges and universities with the ability to supply their students with financial aid, through the Higher Education Emergency Relief Fund (HEERF), due to hardship experienced because of the COVID-19 pandemic. Other executive responses include the Paycheck Protection Program and Health Care Enhancement Act[6], the Magnuson-Stevens Act [7], the Stafford Act [8], and the Defense Production Act [9]. The federal government also peforms health care research, collects health data, advises states, regulates drugs and vaccines through interstate commerce rulings, and partners with states in delivery of Medicaid [10].

The Tenth Amendment to the US Constitution states that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” [11] Courts have interpreted the states’ reserved powers under the Tenth Amendment to include police powers, such as the authority to act in response to a public health emergency. Some of these powers include issues related to family, crime, education, and other matters related to providing for “the public health, safety and morals” of citizens.

Along with the powers listed in a state’s administrative procedures, individual governors have broad powers under their respective state constitutions or statutes to protect citizens during a disaster or emergency. One matter in particular over which governors have authority is implementing quarantines, or lockdowns, of their citizens. [12] That power is generally delegated to the state’s health department or health agency.

Examples of actions taken by state governors include the executive order to halt eviction proceedings within the state in Illinois [13], the State Quarantine Order in Ohio [14] and the declaration of state emergency in Montana [15]. New York legislature amended its criminal procedure laws to allow witnesses to appear electronically in felony hearings [16] and Arizona legislature amended its laws to establish the Crisis Contingency and Safety Net Fund to provide money for the general welfare of Arizona’s population.

Local governments have also played a key role in the response of the pandemic. State laws generally govern the roles and responsibilities of state police forces, but most police enforcement activities fall under the purview of city police departments. Additionally, local governments may enact rules and regulations for emergency management at the local level, which may be enforced by local police departments. There has also been decentralization when it comes to enforcing mask mandates. For example, the state of Idaho does not have a mask mandate. Instead, the governor has allowed local governments to create policies regarding face coverings. [17] The governor of Oklahoma, J. Kevin Stitt, has also opposed a statewide mask mandate and has left that decision up to local governments. The government has also had limited involvement in regulating the size of gatherings, leaving that, too, up to local governments. [18]

The US constitution is designed in a way that limits the power the federal government has under a pandemic according to Article I, Section 8 of the 10th Amendment. With a country as large as the US, varied in population, geography, health, and urban/rural needs, it is difficult to follow a rule of law that suits all.

While the Federal government has been generous with stimulus checks, relief acts, and billions of dollars in emergency spending bills [19], it couldn’t quite analyze the situation of the pandemic in its early stages. The biggest mistake was made in early 2020 when the government endorsed announcements by CDC and WHO saying masks wouldn’t protect people against getting the disease [20]. Due to this unauthenticated and unfounded communication, supplies looked short for the personal protective equipment that health care workers were going to need when the pandemic got bad. Moreover, the public was already in a frenzy and this announcement made matters worse as masses were leaving their houses without a mask based on guidance by the CDC.

State governments, on the other hand, have also been polarized regarding quarantine, stay-at-home orders, and mask mandates. Face covering has become a highly politicized and partisan issue. In mid-2020, 18 out of the 19 states which didn’t have mask mandates were being run by Republican governors [21]. Six states do not have stay-at-home orders: North and South Dakota, Wyoming, Iowa, Utah, and Nebraska. They're deciding to allow residents to have more control over how they act, relying on voluntary compliance with CDC guidelines [22]. Currently, Iowa, Mississippi, Montana, North Dakota, Texas and Wyoming also have no mask mandates [23]. The law for one state inevitably affects its neighboring state in the time of a pandemic since the coronavirus does not stop at state borders. Hence, the right to exercise authority and make decisions regarding public healthy safety should be restricted to the federal government for a uniform response to pandemics.  Since one bad apple ruins the barrel, a spike in any one state, whether it is Texas or New York, will cause the entire nation to go two steps back while trying to move one step forward.

Not all is in vain though. There is emerging cooperation between state and federal government on matters like FEMA funding for state responses and National Guard deployments. There is cooperation around ports of entry, where there's a necessary working relationship between the Coast Guard, Customs & Border Protection, and local law enforcement. However, when it comes to public health concerns, political polarization has caused an uncoordinated response between federal and state governments.

In this pandemic, US public health federalism assures that the coronavirus response depends on zip code. A global pandemic has no respect for geographic boundaries, laying bare the weaknesses of federalism in the face of a crisis. Cited benefits of federalism include the flexibility to customize responses to the unique characteristics of a local population, maintain state budgets, and test new policies. Some states have responded to the lack of national leadership by forging their own paths by independently acquiring essential equipment or collaborating with neighboring states to reopen their economies. Such efforts are necessary but not a sufficient replacement for a nationally coordinated effort. When our collective fate relies on speed, efficiency, and unity, federalist ideals fall flat. Divided governance creates unnecessary challenges for residents of states that are slow to act or to take up federal policies.

Since the constitution has already granted many rights to states in matters dealing with public health, what the federal government can do is condition the funds to encourage good behavior. The classic example is tying highway funds to having a drinking age of 21 [24]. However, this will be a highly politicized issue as many will believe that the White House is cashing in on a pandemic to further their own policies and agenda. There's also going to be a great deal of friction between states and the federal government if federal funds, or FEMA funds, get tied up with particular policy preferences of the White House. If the federal government uses its leverage to do things that are evidence-based, and in accordance with sound advice from the CDC and others, then the feasibility of a coordinated response and compliance is much higher than it is right now. However, this situation would have to be tackled very carefully as the slightest miswording or too much pressure from the executive branch could cause backfire.

In an ideal scenario, the executive branch should use its powers to convince governors to act in a unified fashion based on evidence and make sure they're making decisions in a coordinated manner, considering other states, ensuring the allocation of resources is being fairly distributed. However, governors don’t comply to such requests, which is what brings us to fiscal control. Congress has the power of the purse, the power to regulate commerce, the power to condition its spending, the power to tax. The only caveat is that Congress has elected officials from both parties and the partisanship makes it extremely difficult to pass a bill that has such conditions.

In my opinion, a confederation would have handled the pandemic much better than the current US political system. According to the Pew Research Center, people in the EU rated the bloc’s handling of COVID-19 more highly than that of the U.S. A median of 61% of adults in the eight countries surveyed said the EU had done a good job dealing with the outbreak, while a median of only 15% said the same about the U.S [25].

Conclusion

The US constitution can be amended for a more uniform response by granting more power to the central government currently restricted by the 10th Amendment. Moreover, a decrease in political polarization would also allow better coordination by all levels of government with increased cooperation amongst states.

Maha Butt studies Political Science with a concentration in International Relations at University of North Carolina at Chapel Hill. Her research interests include causes of conflict and war, international mediation, and U.S foreign policy. 

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