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How Weaponizing Federalism Prevented a Cohesive Coronavirus Response

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

By Michael R. Ford
August 14, 2020

Over the last few weeks I found myself in the middle of a passionate debate over the wisdom of a local mask ordinance. My city council colleagues and I received hundreds of e-mails, and sat through hours of testimony lasting late into the night. Constituents expressed concerns about individual freedom, community safety, implementation and civility, and offered opinions on issues specific and abstract. While listening, I wondered, why are we doing this? How did it get to a point where the response to a global pandemic lands on a part-time city council of a medium-sized city more prepared to deal with issues of streets, parks and garbage collection?

Ultimately, we were having this discussion because higher levels of government had failed to act. The broader issue is federalism, specifically, the ideological weaponization of the concept. As we all learn in our first civics class as children, federalism is a system of multiple sovereignty where federal, state and local governments overlap. The system has strengths and weaknesses, but at its best enables a balance of local control on local issues, and state and federal control over broader issues. At its worst, it can diffuse accountability, and create conflicts that must be solved through the courts.

The one constant of American federalism, as illustrated by the evolving metaphors by which it has been described, is change. Historically, change manifests as shifts in power within a federalist system. What we are seeing in our response to the Coronavirus pandemic is a consequence of the shift from change being a redistributon of power between governments, to being the weaponization of the concept of federalism against the very idea of government power. In other words, the goal is not to shift government power, but to flat out eliminate it.

In my home state of Wisconsin, a prominent think tank (for which I worked from 2011 to 2013) has an ongoing Project for 21st Century Federalism pushing for the elimination of federal funding and involvement in just about all state and local policy areas. The general framing is not for the devolution of power from the federal government in specific policy areas, but a federalism defined as the absence of federal power. This framing surfaced in the Trump Administration when Jared Kushner argued the national stockpile of medical equipment was their stockpile, and not for the use of the states. Rather than dual sovereignty, this framing is a separate sovereignty.

To be fair, the severity of the Covid-19 outbreak has varied by time and location, so an argument can be made for state specific responses. Returning to Wisconsin, Governor Tony Evers took such an action by issuing a Safer at Home order designed to curb the extent of the initial outbreak. However, a lawsuit filed by a libertarian think tank led to the order being overturned by the Wisconsin Supreme Court. Under the logic of federalism, the decision could be interpreted as an action empowering local governments to make their own orders. While several County governments did issue new orders, most were quickly rescinded in response to complaints that they too were unconstitutional under the state’s recent Supreme Court decision.

The language of local control was used to litigate the absence of control. Despite specific language in state law regarding local health departments’ roles in a pandemic response, including the statement: “The department may authorize and implement all emergency measures necessary to control communicable disease,” the court ruled state and local health officials had limited power to make mandates in response to a pandemic. Essentially, the string of events in Wisconsin exposed a new layer of federalism; the individual. In Wisconsin, this means 5.5 million individual policymakers are crafting the response to a global pandemic. This is not ideal.

Which returns me to my local city council debate over a mask ordinance. In the absence of any coordinated public health response, municipalities across Wisconsin are cobbling together risk mitigation strategies. Not because they are the ideal actors to do so—a virus does not respect municipal boundaries—but because other levels of government are unable to act. No doubt there will be much for our field to reflect on when this pandemic is over. Among other things, we need to understand how our government structures contributed to our inability to mount a coordinated response to a universal health crisis. Part of this will be coming to terms with how we currently understand (and teach) federalism, and pushing back against efforts to weaponize the concept of federalism against the idea of government power.  

Author: Michael R. Ford is an associate professor of public administration at the University of Wisconsin Oshkosh, where he teaches graduate courses in budgeting and research methods. He frequently publishes on the topics of public and nonprofit board governance, accountability and school choice. He currently serves as the president of the Midwest Public Affairs Conference, and as an elected member of the Oshkosh, WI Common Council.

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