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  • Brooke Lehmann

Just the Facts… A federalist government and a global pandemic. What could go wrong?

With so much already written regarding COVID19, we hesitated to add to the already overwhelming conversation. However, in recent days, as the tenor and substance of the virus’ conversations have begun to change, it seemed appropriate to explore the debates beginning to emerge between the states and the federal government. Why are these debates compelling enough to write about? Because COVID19 might offer us the most vivid example of the complexities of our Nation's structure of government and how navigating a pandemic through this structure is currently confounding our policymakers.

Federalism, the structure of the U.S.'s government, is a mixed or compound mode of government, combining a general government (the central or "federal" government) with regional governments (provincial, state, cantonal, territorial or other sub-unit governments) in a single political system. Essentially, shared responsibility for the well-being of our citizens between the federal and state governments. This structure, which has withstood domestic and global crises for hundreds of years, is facing perhaps one of the most significant challenges to date. For that reason, let's take a look at how lawmakers and individuals have historically interpreted and defined federalism and how a pandemic is testing those beliefs.

If we take ourselves back in time to late January or early February, there were already signs of discourse between the Administration, Congress, and Governors as to how to prepare for a domestic COVID outbreak. While scientists and leading health professionals warned that more significant investments in research were urgently needed to better understand the virus, including its patterns of contagion, neither the Administration nor Congress headed those warnings. Or, so some would argue. In fact, some contend that our federal government's lack of clarity regarding their responsibilities and authorities delayed proactive measures that could have saved lives. Those same individuals look back on those early days of this pandemic and blame politics and party lines for delaying needed assistance. However, perhaps unknowingly, what they are actually “blaming” are the philosophical differences in individual beliefs regarding the size and scope of our federal government.

On that note, let's take a look at how some states have interpreted those lines of authority. As one might expect, this has been highly variable from state to state. Again, starting months ago, many states contended that the federal government had not done enough to help them address their overwhelming needs. Governor Cuomo of New York has been one such governor who has regularly spoken of his disappointment in the federal government's relief efforts. Alternatively, when the federal government finally enacted various restrictions and bans on industry and individuals alike, others asserted that such policies were beyond the scope of the federal government's authority. For example, several states, including South Dakota now a COVID hotspot, refused to enforce these federal policies, and just this week, mayors and governors that did impose such policies have begun speaking publicly about lifting bans on their borders and businesses. Add to this that earlier this week, President Trump both supported states “liberation" from these constraints while simultaneously admonishing the Governor of Georgia for "liberating" his state too quickly. Confused? So are our lawmakers.

But wait, there's more! As far back as the writing of the Articles of Confederation and the U.S. Constitution, policymakers have calculated a role for the private sector or the "third prong" of government. However, the extent of the “third prong’s” role and responsibility during an emergency such as the current pandemic, has led to heated debates among policy makers and industry leaders. For example, Google and Apple--to name a few-- have been resourcing relief efforts from the earliest days of the pandemic. As large corporations specializing in information technology and hardware, these companies have been able to make not only financial contributions, but product contributions that are in high demand and that they are already manufacturing. Yet, for other industries, their ability to assist requires them to augment their manufacturing capabilities, add a new skilled workforce, and entirely change their distribution mechanisms. For example, car manufactures, who are now manufacturing life-saving equipment such as respirators, have asked for government assistance as they make this sizable transition. However, only recently, and in limited scope, did Mr. Trump make use of the presidential powers available under The Defense Act. This Act expressly allows the Administration to issue contracts to private industries to help develop their production capacity in times of emergencies. Mr. Trump's rationale for his delay in utilizing this power has been his belief that the private sector should "step-up" in times of need to help support the government's efforts, not the other way around.

It is evident, therefore, that while we as individuals fumble our way through adapting to life and work conditions never imagined, so too are our local, state, and federal governments. One lesson to be learned from this experience is that we will always be a nation divided in our beliefs of the role of our government. Yet, for better or worse, our founding fathers developed a government that ensured that no one entity would yield full power and control over its people. COVID19 is providing perhaps the most significant opportunity of our lifetime to test the very core of federalism. Only time will tell how this structure will withstand a pandemic and what our citizens and lawmakers will learn from the process.

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