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Federalism and Its Discontents: Guns, Germs and Insurrection

The views expressed are those of the author and do not necessarily reflect the views of ASPA as an organization.

By Alan H. Kennedy 
February 28, 2021

Photo courtesy of CBS News.

Has federalism failed? Donald F. Kettl answers in the affirmative in his book The Divided States of America: Why Federalism Doesn’t Work, and regarding inadequate responses to the COVID-19 pandemic, in his Public Administration Review article, “States Divided: The Implications of American Federalism for COVID-19.” Kettl argues that federalism causes inequalities stemming from policy differences between states. In this article, I go further than Kettl, finding evidence of failures of federalism not only in the context of COVID-19, but also in how federal inaction on guns caused jurisdictional externalities and how Electoral College flaws underpinned the insurrection. 

Federalism and Gun Policy 

Alexander Hamilton wrote in 1787, in, “Federalist No. 1: General Introduction,” that the system of federalism framed in the new Constitution would avoid another, “Unequivocal experience of the inefficiency of the subsisting federal government.” Hamilton was wrong. The inability of Congress to enact any meaningful laws designed to prevent gun violence, even after successive mass shootings in recent years, reflects systemic failure of federalism with deadly consequences. A century later, Woodrow Wilson observed in a seminal article, “The Study of Administration,” that it is difficult to, “Run a constitution,” efficiently if Congress abdicates the legislative branch’s responsibility to enact legislation that allows execution of tasks necessary to protect the public. 

Paralysis of Congress on what Joshua Newman and Brian Head termed a, “Wicked problem,” in a 2017 article, “The National Context of Wicked Problems,” is the opposite of good governance. In the absence of congressional action, state and local governments enacted a patchwork of gun laws that vary in their aims and effectiveness. Some jurisdictions banned assault rifles, imposed magazine limits and passed “red flag” laws, while other jurisdictions made it easier to buy, sell and transport guns. The consequences of disparate gun laws have included both legal and illegal movement of guns across state and city borders, resulting in deaths from guns that originated in places with fewer restrictions. In short, federalism has spawned havoc with regard to gun policy. 

Federalism and COVID-19 Policy 

Inadequate national and state responses to the COVID-19 pandemic in the United States, where more than 400,000 people have perished from the novel coronavirus, have been exacerbated by systemic failures similar to the failures which have plagued American gun policy for decades. As Kettl noted in, “States Divided,” in 2020, former President Donald Trump and Congress mostly left decisions regarding how to respond to the pandemic to the states, some of which in turn left decisions to individual cities. Such decisions included whether to mandate the wearing of masks, whether to restrict public institution and private business capacities to enforce social distancing, whether to require testing and contact tracing and whether to mandate COVID-19 vaccinations. 

Due to inaction by the federal government, with even COVID-19 relief packages subjected to avoidable delays and partisan bickering, governors, mayors and health departments became key actors. Some governors based their decisions on pandemic trends, while other responses to the spread of COVID-19 were based on ideology or business considerations, leading to variation between local jurisdictions more aligned with partisan pressures than with scientific evidence. This resulted in increased inequalities along racial and class lines exacerbated by jurisdictional policy differences. According to Kettl, governors resorted to, “Accepted patterns of the political culture and policy decisions,” as former President Donald Trump downplayed the pandemic as a “hoax.” 

Federalism and Incitement of Insurrection 

Evidence of failure of federalism appears not only with regard to jurisdictional disparities in gun policy and disparate responses to the COVID-19 pandemic but also in Electoral College flaws that contributed to the insurrection incited by Trump. After losing dozens of legal challenges to the 2020 presidential election, supporters of Trump stormed the United States Capitol on January 6, 2021, in a violent bid to stop Congress and former Vice President Mike Pence from approving results from the Electoral College. As a presidential elector for President Joe Biden and Vice President Kamala Harris, I intervened in a lawsuit by Republican would-be electors that encouraged Pence to reject Democratic electors based on a contorted interpretation of Electoral College procedure. 

The American Society for Public Administration stated that Trump, “Concretely and egregiously,” violated his oath, “As he exhorted a mob to disrupt the constitutionally mandated certification of the Electoral College vote.” ASPA noted that Trump even pressured, “Public servants to commit election fraud,” which the Electoral College, enabled by Trump, offered multiple paths to victory despite losing nationwide by seven million votes. A national popular vote, instead of the arcane Electoral College, would have made it more difficult for Trump and his supporters to bring legal challenges and would better reflect the will of the voters. Trump’s impeachable actions mark an extraordinary break from existing constitutional processes that resulted in deadly consequences. 

Rethinking Federalism 

In sum, evidence of failures of federalism are apparent in jurisdictional externalities, inequalities and undemocratic outcomes in the context of gun policy, COVID-19 response and insurrection. Fortunately, these disparities have drawn renewed consideration of the systemic problems with American federalism. Unfortunately, solutions have proven elusive due to entrenched interests. For scholars of public administration, the need for systemic changes to address what Hamilton might have viewed as, “Inefficiency of the subsisting federal government,” should motivate more examination of jurisdictional disparities and inequalities arising from the failures of federalism. 

Author: Alan H. Kennedy, J.D., is a Ph.D. candidate at the University of Colorado Denver and 2020 ASPA Founders’ Fellow. Kennedy’s research focuses on equity and public administration.

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