Federalism and the Coronavirus Crisis

Ilya Somin

Historically, major crises have led to expansions of federal government power. As Robert Higgs documents in his classic book Crisis and Leviathan, this tends to happen even if the crisis was partly caused by misguided federal policies, and even if the federal response to the crisis has serious flaws of its own. So far, however, the coronavirus crisis seems like it might be an exception. There is some value to the decentralized nature of the response to the crisis, but also some risks. And it is far from clear that the crisis won't ultimately result in a major expansion of federal power.
As Walter Olson documents in a Wall Street Journal op ed, so far it is state governments that have taken the lead in combating the virus. The "shut down" and "stay at home" orders that have affected millions of Americans are almost entirely issued by state and local authorities. These have also—so far—taken the lead in trying to boost the capacity of the health care system to handle the surge in coronavirus cases.
The federal government's coronavirus "social distancing" guidelines, by contrast, are largely advisory. With the important exception of draconian new restrictions on international travel and migration, the lion's share of coronavirus-related regulations affecting ordinary citizens are the work of state and local authorities. Donald Trump may have high TV ratings, but the actions of governors like Gavin Newsom (California), Andrew Cuomo (New York), and Mike DeWine (Ohio) are having a much bigger on-the-ground impact.
There is some value to this relatively decentralized approach to combating the virus. The US is a large and diverse nation, and it is unlikely that a single "one-size-fits-all" set of social distancing rules can work equally well everywhere. In addition, state-by-state experimentation with different approaches can increase our still dangerously limited knowledge of which policies are the most effective.
Moreover, if one policymaker screws up, his or her errors are less likely to have a catastrophic effect on the whole nation.  Here, there is a tension in the views of those who both advocate a much more centralized policy but also (correctly in my view) believe that Donald Trump is often malicious or incompetent. The worse he is, the less we should want to see even more power concentrated in his hands.
As Olson points out, giving the states the lead role on public health issues is not a new idea, but one  embedded in the original meaning of the Constitution. The Founding generation regarded most public health issues as primarily a state responsibility beyond the scope of the federal government's enumerated powers. In his landmark 1824 opinion  in Gibbons v. Ogden, Supreme Court Chief Justice John Marshall—who generally advocated a broad conception of federal power by the standards of the time—listed "Inspection laws, quarantine laws, [and] health laws of every description" as part of "that immense mass of legislation which embraces everything within the territory of a State not surrendered to the General Government."

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