The new (old) federalism under coronavirus

That is the topic of my Bloomberg column, here is one bit:

As May begins, it seems highly likely that the states will be reopening at their own paces and with their own sets of accompanying restrictions, with some places not reopening at all. There is likely to be further divergence at the city and county level, with say New York City having very different policies and practices than Utica or Rochester upstate.

Such divergence in state policy is hardly new. But until now states have typically had many policies in common, on such broad issues as education and law enforcement and on narrower ones such as support for Medicaid. Now and suddenly, on the No. 1 issue by far, the states will radically diverge.

Hence the idea that America is inching closer to what it was under the Articles of Confederation, which governed the U.S. from 1781 to 1789. The U.S. constitutional order has not changed in any explicit manner, but the issues on which the states are allowed to diverge have gone from being modest and relatively inconsequential to significant and meaningful if not dominant.

And:

This divergence may create further pressures on federalism. In Rhode Island, for example, state police have sought to stop cars with New York state license plates at the border, hindering or delaying their entrance. Whether such activities are constitutional, most governors do have broad authority to invoke far-reaching emergency powers.

As some states maintain strict lockdowns while others reopen and allow Covid-19 to spread, such border-crossing restrictions could become more common — and more important. Maryland has been stricter with pandemic control than has Virginia, so perhaps Maryland will deny or discourage entry from Virginia — in metropolitan Washington, there are only a few bridges crossing the river that divides the two states. Or maybe Delaware won’t be so keen to take in so many visitors from New Jersey, while Texas will want to discourage or block migration from Louisiana.

To be clear, I think this unusual situation will recede once Covid-19 is no longer such a serious risk.

Comments

The Federal Republic of Germany, with 16 states' + 1 Federal = a mere 17 INDEPENDENT health bureaucracies at the very least got the testing right. Shutdowns are completely decentralized.

Maybe one can buy masks in Germany. I know not. But I can buy cheerios here in Virginia.

I think Texas would be wise to indefinitely block migration from Louisiana and add to that California...maybe Oklahoma, too.

Suddenly state rights is not seen as a bludgeon to rein in an overreaching federal government? Who knew that a president having his name printed on the checks he is bestowing the populace would have such a beneficial effect? After all, his is the ultimate power in the universe, or some such.

I too noticed the sides suddenly switched on the issue.

Governors from both parties are quite plain in saying that the president most certainly does not have ultimate authority over their states. But the governors having the Constitution and Supreme Court on their side does not seem to matter for a certain group of people.

Guess Larry Hogan and his fellow traveling RINOs need to be kicked to the curb, so people who support the president having total authority can be elected. That is certainly one way to get around any objections about a president proclaiming that the power of his office is beyond any restraint.

"governors having the Constitution and Supreme Court on their side"

And yet Lincoln answered the question with finality.

New York or Maryland are not seceding. Lincoln answered the question of whether states could secede with clarity, not whether the president's authority is total. A clarity made easier by one of the seceding states actually attacking an American fort, clearly demonstrating what those seceding states were willing to do in pursuit of their goals.

An American fort located within the borders of their state, blocking the harbor of their most important city and economic center, that resisted multiple chances to surrender the fort (not the garrison, who could have left peacefully and without resistance at any time).

If it happened to any other country, the apologists for the Yankee aggressors would say it's another example of American imperialism upon a sovereign people. (Indeed, the British were not allowed to keep their forts in American territory less than a century prior.) But since it very nearly led to a successful challenge of the Yankee stranglehold on the rest of the continent, it simply can't be justified.

'The election of Abraham Lincoln in November of 1860 brought to a head the issue of slavery in the United States. In direct response to Lincoln's election as president, seven southern states seceded from the Union rather than continue to negotiate and compromise over the issue of slavery, which had been the norm for so many decades.

The first state to secede was South Carolina on December 20, 1860. By February 1861, six more states had joined the new Confederate States of America. With their secession declarations came the demands that all United States property be turned over to those states, including military property, and said installations abandoned by United States soldiers, sailors, and marines. The new Lincoln administration sought not to provoke armed conflict but refused to surrender Federal installations to the Confederates. ... Negotiations continued in Charleston between Confederate General Pierre G.T. Beauregard, in command of the Confederate forces there and Maj. Robert Anderson, the Fort Sumter garrison commander. The talks failed to resolve tensions. Early in the morning of April 12, 1861, Confederate guns around the harbor opened fire on Fort Sumter. At 2:30 pm on April 13th, Major Robert Anderson, garrison commander, surrendered the fort and it was evacuated the next day. www.battlefields.org/learn/civil-war/battles/fort-sumter

Federal property has never been the property of the states (though federal property can be returned, as happened with Alexandria VA in the 1840s), and it was not the United States that fired first. Norfolk Navy Yard, for example, was federal property purchased from Virginia, but that made no difference to the Confederacy.

Federal property located in a state the federal government no longer has jurisdiction over is no longer federal property.

Again, the notion that all federal sites are held in perpetuity at the convenience of the USG, irrespective of the will of the people it intrudes upon, is a notion that Yankee apologists find repulsive in all instances except this one. Think military bases in Iraq.

This is not to mention that the people in the Confederacy in principle owned a portion of all federal property extant in the Confederacy, and likewise were giving up their share of property located outside of it.

'Federal property located in a state the federal government no longer has jurisdiction over is no longer federal property.'
The American government disagreed with that interpretation, a point Lincoln made clear with finality after an attack on an American fort.

'the notion that all federal sites are held in perpetuity at the convenience of the USG, irrespective of the will of the people it intrudes upon'
Is clearly false, as the example of Alexandria makes clear. However, Alexandria was not allowed to seize federal property simply because Alexandria disagreed with federal policies.

'the people in the Confederacy '
Were American citizens, as was obvious after the Civil War ended.

You live in an extremely interesting world, to be honest. Have you thought about creating a video game from it?

'the people in the Confederacy '
Were American citizens, as was obvious after the Civil War ended.

It wasn't so obvious if the person involved was a native American, in what was once the Confederate states or anywhere else in the US jurisdiction. In fact, the war Lincoln prosecuted in order to ostensibly free the slaves, used those newly freed to continue the organized extermination of the native Americans. Ergo, it's more despicable to buy and sell humans than to kill them.

Confederate citizens were readmitted as American citizens (and you'll recall they were made to take an oath to do so, and suffered a half-century of "reconstruction" for their troubles) because that was the only way the Yankee aggressors could maintain any shred of moral credibility after burning down half of the South. What were they supposed to do, genocide them? Removing the Confederate human capital would have defeated the entire purpose of the war.

It's pretty clear that you, like many apologists for Yankee aggression, have taken practically no time to consider your untenable position, built on contradictions and hypocrisy. This is unfortunate, not only because you get made to look like a fool, as you have, for what was a flippant and gratuitous reference that you could easily have avoided while making your point, but also because it would give you an opportunity to reexamine your premises regarding the American experiment.

If only we could create a market for federalism ... See, e.g., https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1568905

Zoning will become defacto in most of the world. Initially moving from a virus zone to a virus free one will require quarantine. But eventually people might accept antibody testing or a certificate of recovery. The US would be better to try this approach as well. We always hear lots about externalities (more than we should) as a reason for controlling other people's behavior, if this isn't an externality then the term has no meaning. One selfish person can cause thousands of deaths and tens of thousands of severe infections. This is a lot more worth restricting than sugar in your soda.

> Initially moving from a virus zone to a virus free one will require quarantine. But eventually people might accept antibody testing or a certificate of recovery.

Requiring evidence of a negative test was one of the (too little, too late) measures Austria tried when they started closing the alpine passes from Italy.

Why not give anyone who cannot spread Covd a hospital bracelet, in red?

Who wants to breach social distance to examine a get-out-of-jail-free certificate and then cross-reference it with a photo ID, to be sure?

Seriously.

I don't think you understand the level of disillusionment out here.
We wasted valuable time by trusting the Federal government and then they blocked the PPE that we tried to acquire for ourselves. The first rule of trust is that it's easier to destroy than to repair, and this took a lot of destroying.
The executive is ruled by a psychopath. Mere months ago, the Senate majority acquitted him on party lines, without calling witnesses, and in this they were abetted by the Chief of the judicial branch. The Supreme court has been increasingly involved in settling elections.
Remember that Douthat piece about how this crisis seemed tailor-made for a nationalist party? Maybe he was right, but the nation is still defining its boundaries.

" this crisis seemed tailor-made for a nationalist party? "

Except the nationalist party failed to protect the country in time, while globalist East Asia did a much better job. The irony.

And it is really pretty bad. As the Fascists, Nazis and Japanese Imperialists demonstrated in glorious nationalist fashion. Other nationalist parties may not have detonated so spectacularly, but whether led by Franco or Peron, their track record is not one to be emulated, much less envied,

In this thread prior_approval equates nationalism to fascism, fascism and fascism.

And then fascism and fascism again.

Peronism has never been called fascism, and many defenders of the Caudillo point out the numerous differences between his system and that of Il Duce. Calling the Japanese of that period fascists seems a fair stretch, unless one believes that ultra-nationalism and militarism always equals fascism. A point you seemed to be trying to suggest was incorrect, without realizing the contradiction in calling Japan fascist. Shōwa Japan may or may not be considered fascist, in similar fashion to Spain, but mainly it was the enemies of the Axis powers that considered Japan as sharing an ideology with the Nazis.

All 50 states will have border walls policed aerially by unmanned drones analyzed and controlled by Peter Thiel's numerous for-profit surveillance companies. An Arizonan that even puts one toe into New Mexico needs papers, ID, fingerprint/iris scan, and detailed contact history of the last 30 days verified by Apple/Google/NSA GPS smartphone tracking. A dossier and database entry on every citizen with machine learning based analytics to be used just in case they turn into potential threats to state security. This is the end result of Trumpian nationalism. We can't watch them but they could watch us. United Stasi of America.

Good piece by TC, but under existing US law it's unconstitutional for the states to close their borders. Not even debatable, ask Rayward. Of course the Supreme Court, being a political animal, can change existing constitutional law, if they sense that public opinion wants it that way.

Just to be clear, it's clearly illegal for the US states to close their borders if the federal government wants borders open. This is 100% well established, 'black letter law', not debatable at all.

I would think that's the case; however, from an April 6 WSJ article:

"The Florida Keys last week banned visitors but not property owners from the chain of islands. The Outer Banks of North Carolina banned both visitors and nonresident homeowners as of mid-March. Both areas have set up roadblocks to enforce the bans." ( https://www.wsj.com/articles/tourist-towns-say-please-stay-away-during-coronavirus-lockdowns-11586165401 )

A county can't have more political rights than a state, because counties are subordinate political entities created by states. One answer, of course, is that these orders by counties aren't legal. I'm not aware of any litigation challenging their legality.

In practice, I think that we might see mandatory self-quarantine for those arriving from certain other states, with breaches of self-quarantine enforced via fines (and maybe also subsequent confinement to a state quarantine facility? Empty hotels could conceivably be used for that purpose.)

That's apparently what Rhode Island ultimately imposed on March 29: mandatory self-quarantine, though I'm unsure of the enforcement mechanism. Rhode Island also applied it to *all* other states after the state of New York threatened to sue over a New York-specific requirement. ( https://www.usatoday.com/story/news/nation/2020/03/29/coronavirus-rhode-repeals-new-york-quarantine-order/2935755001/ and http://governor.ri.gov/documents/orders/Executive-Order-20-14.pdf )

Banning visitors (people who cannot prove they reside in the area they are seeking to enter) may be the easiest to justify. That seems like a routine exercise of police power when there is a civil disturbance or public safety emergency. I recall that non-residents were told to stay out of lower Manhattan for several days after September 11. It should likewise be applicable for a public health emergency.

Banning out-of-state residents without the support of the federal government is probably not ok. In between, there is the question of whether you can ban non-resident property owners from visiting their property. Maybe not, but you could probably require they self-quarantine.

Hawaii found the loophole by putting them right back the plane or they can be arrested for "breaking social isolation". Since it's "voluntary" it's legal apparently.

Cowen: "But until now states have typically had many policies in common, on such broad issues as education and law enforcement and on narrower ones such as support for Medicaid." One who resides in DC (or any other large metropolitan area) might believe this to be true, but one, like myself, who resides in the South knows it's not. One might even believe states are laboratories of democracy: laboratories alright, Frankenstein's laboratory. Everyone knows that "states' rights" is a euphemism for racism, which Ronald Reagan used to great effect. Down here in the South we've been blocking Yankee interlopers since, well, there were Federal marshals who might try to enforce Federal laws folks in the South don't like, like voting rights, or even the right not to be lynched. "You never let a serious crisis go to waste", said Rahm Emanuel. And this pandemic crisis is a serious crisis indeed, and I would expect opportunists to exploit it in ways to set us back decades. Indeed, down in Florida, Trump's man Ron DeSantis has been agitating to commandeer entire sectors at the behest of his patron, hospitals. Thus far the Federal government has stepped in to prevent it. If Cowen's prediction is accurate, soon enough the Fifth Amendment (and Fourteenth) will be just words on paper.

"and I would expect opportunists to exploit it in ways to set us back decades."

Do you really think an itsy bitsy virus will postpone my 2045 arrival by even a nanosecond?

"I think this unusual situation will recede once Covid-19 is no longer such a serious risk." The next post on the blog is entitle "Some realistic thinking, including about 2024" which signal boosts a paper predicting (absent a vaccine or large increase in hospital capacity) social distancing measures will need to continue into 2022, with Covid-19 surveillance continuing into 2024. I wonder how long something can last before Tyler thinks it is no longer unusual.

This would be optimal as contagion is mainly a local externality and the optimal response -- test and trace -- is a local capacity. The MSM fixation with what the President said when has been a huge distraction.

This is not simply a question of Federalism, but really one of Executive power.

"The Commerce Clause describes an enumerated power listed in the United States Constitution (Article I, Section 8, Clause 3). The clause states that the United States Congress shall have power "[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."

Congress can regulate interstate commerce. It's in the Constitution.

But, the President, unless he has a law which gives him power to do something, cannot, because he would not be faithfully executing the laws if there were no such laws, and he would be taking the power that belonged to Congress which has the powers to create law regulating interstate commerce.

I think is not simply a federalism question; if one state were the source of a pandemic, which could spread to another state, Congress could act under the Constitution to regulate transactions or movement between states.

Simply posing this as a "federalism" issue misses the point by a mile. It's about a President acting without authority.

Why are economists writing about Constitutional issues???? What next, recipes?

My concern is that because Tyler is framing this as a federalism issue, and not an executive power issue, we may be getting people to believe that the Constitution does not give the power to regulate commerce and movements between the states. It does, BUT it is Congress that makes the laws that would authorize the President to do so, and it has not.

Given that the Congress can regulate, if one state, for example, did a poor job, and people were fleeing it to go to another state, Congress could regulate the flow. Just as if, say, Wisconsin produced cheese from milk that was tainted and it was sold in Illinois...Congress could regulate.

This gets to a deeper question, which is more interesting, and raised by network economist Prof Matthew Jackson: the lack of coordination among the states and the world will make matters worse and increase the dangers of the pandemic:

Read it here: https://news.stanford.edu/2020/03/26/coordinated-response-needed-fight-coronavirus-pandemic/

All three branches of the Federal government are implicated at this point. It was only three months ago that the upper legislature turned away from its oversight responsibilities and the judiciary refused to intervene.

Even with an act of Congress, the federal government would still be limited in what it could order states to do. Can the federal government order states to release people from quarantine? Can it prohibit state law enforcement from enforcing orders on restaurants and places of work to close or prohibiting people from gathering in groups in public? This isn't just regulation of commerce, but preemption as well.

Ricardo,

You might want to think in terms of
Interstate commerce v. intrastate commerce

Congress has the power to regulate interstate commerce.

A quarantine by a state is Intrastate commerce, and something traditionally undertaken under the police powers or public welfare powers of the state.

So, think: Interstate commerce v. Intrastate commerce.

That's not to say, either, that simply finding intrastate commerce necessarily limits federal action, however.

The federal government could intervene locally if, for example, the state acted under the color of state law to deny a constitutionally protected right (eg, quarantine black people but not white people).

I'm afraid that Cowen is too sanguine in predicting a resurgence of federalism. Let's not forget that one of the principal instruments that Washington uses to exceed its enumerated powers is by granting or withholding funds. "You can set the drinking age to whatever you like; but if it's not at least 21 years, no highway funds for you!" The coronavirus crisis is producing an enormous increase in the amount of federal money flowing to the states, and the states will quickly become dependent on it, and abide by whatever requirements Washington imposes in order to keep the moolah flowing.

It is odd that the U.S. constitution accounts for federal powers such as intellectual property rights, bankruptcy, putting down insurrections, and coining money but makes no mention of disease control or public health, especially when it comes to fighting pandemics. The courts, as far as I can tell, have always held that this power rests in the state governments and is part of their police powers.

So, unless a group of "activist judges" decides that the federal government has inherent power to enact emergency public health measures and to override state and local measures, this issue will continue to properly be in the hands of state governments. But careful what you wish for.

The question of interstate travel is an interesting one. On the one hand, there is a right to travel. On the other, I know Hawaii gets to regulate food and agricultural products brought into the state to prevent the introduction of invasive species. So there is precedent for states to regulate trade when public health is at stake. Also, states could use their aforementioned public health police powers to make things very inconvenient for travelers such as closing hotels, airports and all tourist attractions and entertainment venues. You might be able to transit through a state by car or stock up on groceries there but, other than that, anything else you might try to do in that state as a non-resident could be illegal.

Ricardo, Get familiar with the Commerce Clause of the US Constitution, otherwise OSHA could not regulate safety in a workplace located solely within a state.

Look up the Commerce Clause and Congress's authority to write laws affecting commerce between the states. Article I

I'm well aware of these and don't see where we disagree. Congress can enact laws that touch on interstate commerce. If it wants to preempt intrastate rules, such as rules governing the quarantining of individuals, that's a much higher hurdle to cross. Likewise, if state health authorities identify that local restaurants or workplaces are infection hotspots and moves to suspend their operations, it is a high hurdle to cross for the federal government to step in and overrule the local authorities (in order to "reopen the economy"). The feds are free to add their own rules on top of state and local rules (as they do for OSHA, minimum wage, etc.), of course.

By the way, your statement above that the "federal government could intervene locally if, for example, the state acted under the color of state law to deny a constitutionally protected right" needs to be qualified. Federal courts can certainly intervene but City of Boerne v. Flores limits the power of Congress to legislate and enforce interpretations of certain constitutional rights on state governments. Congress can regulate interstate commerce and preempt state and local rules if it has a good argument. But, for the most part, only federal courts can invalidate state and local rules on constitutional grounds and courts can start considering constitutional challenges to quarantine measures today, no need for legislation from Congress.

Constitutional invalidity is different than pre-emption in situations where the Commerce Clause applies, and the Commerce clause is pretty extensive, as you seem to understand (eg OSHA, etc.) Don't conflate them. They are separate issues: you wouldn't use Constitutional validity to superced local quarantine measures but would use the Commerce clause instead.

Ricardo,
"The federal government derives its authority for isolation and quarantine from the Commerce Clause of the U.S. Constitution.

Under section 361 of the Public Health Service Act (42 U.S. Code § 264), the U.S. Secretary of Health and Human Services is authorized to take measures to prevent the entry and spread of communicable diseases from foreign countries into the United States and between states.

The authority for carrying out these functions on a daily basis has been delegated to the Centers for Disease Control and Prevention (CDC)." Here is the link: https://www.cdc.gov/quarantine/aboutlawsregulationsquarantineisolation.html

Note also that one of the last times there was a federal large scale quarantine was for the Spanish flu.

As you know from the chicken cases, The commerce clause is quite extensive.

I think everyone is ignoring Trump's tweet from last weekend that Presidential Emergency Action Directives have been signed for all 50 states.

>once Covid-19 is no longer such a serious risk.

It's on track to be a-bit-above-average lethality for a typical flu season. Just how much less of a "serious risk" does it have to be for you?

the same cnn.com& newyorktimes.com media memezombies histrionically demanding the president do a federal lockdown on the states 3 weeks ago are the same media memezombies who currently say he cannot make decisions about de-lockingdown the states!

Tyler: "Here are some vague predictions for all of you to use as a springboard for discussing your pre-existing political opinions."

This has a lot to do with weak leadership at the Federal level. Both for COVID, and more generally - if Congress were drowning, it would not be able to pass a "Give Congress a Life Vest" bill. McConnell will have to decide if keeping his donors happy is worth watching Congress become irrelevant while the executive, judicial, and states step in to fill the void.

I think we have to recognize that Congress can regulate in this area.

The Commerce clause permits legislation which would enable the President, following a law, to coordinate with states, and compel standards.

But, we can't put the cart before the horse: The President cannot act without a law. He can't just say: State, you do this because I said so.

No, Congress writes the laws, not the President.

So we need federal coordination and oversight, and we need legislative authorization for action.

The Constitution was preceded by the Articles of Confederation. In the Constitution, the Congress was given the power to write laws affecting or controlling interstate commerce.

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