Federalism, Presidential Power, and the Pandemic
A Defense of the American Political System in a Time of Crisis
Although federalism has limited the power of the federal government to act swiftly and extensively in its response to the Coronavirus pandemic, it has also reserved the right of state governments to act autonomously with regulations suited to the particular issues they faced and the unique attitudes of their populations.
Despite the supremacy of federal authority per Article VI of the Constitution, the doctrine of federalism limits this authority by distributing governmental power between federal, state, and local levels. The Tenth Amendment applies this doctrine by reserving for the states (or the people) all “powers not delegated to the [federal government] . . . nor prohibited . . . to the States.” This Amendment recognizes that governmental powers are divided between the federal and state governments — that one may not undertake the powers of the other.
‘Police powers’ refer to the governmental powers “to establish and enforce laws protecting the welfare, safety, and health of the public.” Such powers are the basis of quarantine orders, lock-down measures, and business restrictions during times of emergency. The Constitution neither delegates these ‘police powers’ to the federal government nor prohibits them from the states; therefore, the governmental authority to implement a response to the pandemic rests primarily in the hands of state governments. The federal government cannot constitutionally assume these powers; it may offer guidelines for how the states ought to act but the states may legally decide to ignore such advice.
In recent times, many have argued for the expansion of federal powers — particularly of the executive branch — in order to improve its ability to address the issues we face. In its most basic sense, this criticism of our current system under the Constitution echoes the criticism levied against the Articles of Confederation, our nation’s first governing document (i.e., the constitution before the Constitution).
The Articles of Confederation gave few powers to the federal government, leaving most authority in the hands of the states; for example, the federal government could not collect taxes, regulate commerce, or establish its own currency — although these powers are exercised by our current federal government under the Constitution, they belonged exclusively to the states under the Articles of Confederation. Beneath a weak federal government, the states adopted divisive policies which led to a floundering economy that in turn gave rise to a rebellion. “The government under the Articles of Confederation failed at least in part because it lacked sufficient power and authority to cope with the problems of the day” (Epstein & Walker, 2020, pt. II, § “Origins of the Separation of Powers/Checks and Balances System”).
The critics of our current system argue that the problems of our day are much more complex than the Framers of our Constitution could ever have imagined; the Coronavirus pandemic serves as a prime example of this issue — the governmental response would be much more effective, claim the critics, if measures were implemented nationwide rather than by the piecemeal approach of leaving police powers in the hands of individual states. Furthermore, modern technology has made such advances in information collection and communication that swift and effective decisions can be made from thousands of miles away. Under such circumstances, critics insist that the Constitution, like the Articles of Confederation before it, fails to produce a practical government for its time.
The common issue with arguments to expand the powers of the federal executive is that they rarely recognize the necessity of separating and limiting governmental power. Tyranny is the use of governmental power in ways that are antithetical to the values of liberty and justice. Many of the same reasons provided for the expansion of governmental power — the greater complexity of political issues, the advances in information collection and communication — also heighten the opportunity for tyranny to arise.
The proper method of preventing tyranny is not to vest extensive amounts of power in a single entity of government since “[p]ower tends to corrupt and absolute power corrupts absolutely.” On the contrary, power must be distributed among “the several offices in such a manner as that each may be a check on the other that the private interest of every individual may be a sentinel over the public rights” (Federalist №51, 1788).
The critics of the Articles of Confederation — the “Federalists” as they were known — did not simply advocate for the expansion of federal power. They recognized the necessity of dividing power between the separate branches and between the different levels of government so that each may serve as a check and balance on the others.
Perhaps our government’s response to the pandemic would have been more effective if the president possessed greater authority to control the lives of the people he leads, but increasing the president’s authority simultaneously increases the potential for its abuse. For this reason, the president should not have the power to unilaterally close down the economy if the pandemic gets worse. If this power was divided such that it required the consent of Congress or of the states before it could be exercised, then perhaps yes; but to vest this power in a single individual, no.
While I am arguing that any proposal to expand the power of the government ought to be connected with checks to prevent the abuse of that power, I am not claiming that our government requires more power to combat the pandemic. In fact, I am most impressed by the ability of our political system to adapt in novel ways that address this crisis while adhering to the doctrine of federalism.
Audrey Fernandez, a law student at Florida International University, writes that “[w]hile some states are working with the White House to plan their response efforts, others are coordinating with neighboring states. Such interstate arrangements could be the answer to achieving a more effective response in times of an emergency without further empowering the federal government.”
Liberty is best respected by limiting the government’s powers to only those which are necessary. If the spread of the virus is sufficiently countered by the state governments, then increasing the authority of the federal government will surely be more of a threat to the people than a service to them.
References
Epstein, L., & Walker, T. G. (2020). Constitutional Law for a Changing
America: Institutional Powers and Constraints (10th ed.), CQ Press.
Federalist №51 (1788, February 8). “The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments.” The New York Packet.
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