When Federalism Saves Lives

Americans are getting a better look at the crucial function the States serve by design especially, though not exclusively, in the absence of leadership in the federal executive

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At the height of American central authority, a botched response has revealed itself amidst the coronavirus pandemic. The lacking federal response contrasts action states, corporations and the public have taken to band together to “flatten the curve” and save lives. In a hyper-nationalized media environment it can be easy to mistake subnational action as a mere contingency to federal inaction. The states are the heart of American democracy. Contrary to the country’s domestic detractors, federalism is not the holdover relic from the union’s founding, nor ought it be an exclusively conservative value in our current moment. Federalism today is the single best check the people have on Washington’s world class, cross-partisan insularity. Social distancing perhaps best illuminates the core American idea that boundaries are assets that can bind us together as a vaccine against the inherent, sometimes invisible and frequently deadly risks of centralized power.

The risks in question relate to the Center for Disease Control and Prevention’s failure to provide coronavirus diagnostics and the Food and Drug Administration’s inhibition of diagnostic development by private laboratories. These two failures significantly contributed to a containable virus becoming a surreal national calamity that few in government or the national press took seriously a month before the virus hit America, among those outside of medicine who did were the frequently derided data science-driven technocratsof Silicon Valley whose grasp of exponentialism has proven valuable.

As a striking contrast, in a March 16 story, the Washington Post reported about a German entrepreneur who had shipped 1.4 million tests by the end of February. During the same period, the CDC had produced 160,000. Further, the insufficient number of tests the CDC shipped to state labs, a week later, were found to be faulty. As the CDC addressed the flawed tests, the Association of Public Health Laboratories penned a letter to the Food and Drug Administration requesting an EAU (emergency use authorization), a weeks-long process permitting state and local labs to use tests of which they had verified the efficacy in response to the spreading virus.

By the end of February, the FDA allowed state academic labs to develop their own testing but still required validation via EAU. On March 15, the week the U.S. economy began shutting down, the FDA reactively struck the EAU requirement altogether and designated state officials in charge of their own test development. That President Trump dissolved a program that trained Chinese scientists on detecting potentially pandemic viruses and failed to coordinate across the executive to acquire and develop tests is a failure of foresight and leadership characteristic of the administration. The deeper problem, however, is structural and transcends any one president.

The unwieldy size of the executive and insurmountable expectations of the American presidency embolden the FDA and the CDC to act autonomously, often without the ubiquitous journalistic scrutiny elected officials receive. It is difficult to believe that any president would have had the acute sense to proactively override the expertise of the FDA to open test development either generally or as a response to a pandemic. As a contrast, researchers in Germany, also a federation of states, attribute the decentralization of diagnostics to their death rates, among the lowest globally. The Germans also began locally-coordinated testing early and often.

That brings us to the states where, in practice, the people and American democracy is routinely most observable. Corporate retailers, private businesses and the public are all largely adapting to and complying with nominally enforced quarantine measures. The most effective responses to coronavirus have been occurring across the private and public sector in spite of the federal response; and it’s how state government have received among the highest institutional public approval ratings in response to coronavirus.

State power grounded in federalism has enabled governors to waive trucking regulations that expedite shipment of supplies, waive qualifying criteria for unemployment benefits, allow qualified nurses to work from other states and provide wider access to pharmacy services. All of this is covered in a sobered state and local media environment that is more trusted and that generally does not encourage performative journalism, baseless speculation, blame-shifting and polemicism.

When governments act in closer proximity to direct forms of accountability and tend to issues with more practical relevance to people’s daily lives — that often transcend party affiliation — an organic consensus emerges on the path forward. At the state level, the people possess proportionally more influence over public officials’ crisis response. Serving comparatively smaller populations with greater commonality also incentivize state and city officials to take smaller political risks. Feedback they receive from local market forces, medical professionals and the people directly informs decisions to adopt quarantine measures. In Austin, some restaurants had already shifted their hours or closed before Mayor Steve Adler had enacted counteractive policies.

Federalism has crucially empowered the private sector to act as a communicator of federal guidelines as well as a check on the proclaimed expertise of central power. Companies deemed essential by state governments like grocery stores have been going out of their way to protect the public with precautionary sanitation measures on their property. In the medical arena, private labs have led on the development of accurate diagnostics, an expectation the federal executive set for itself but that it failed to fulfill by either not developing or ordering diagnostics. Now companies are rushing to bring products to market. Abbott Laboratories announced it received approval for a test capable of detecting coronavirus in five minutes and at a rate of 50,000 tests per day. New York’s Wadsworth Lab has developed a self-administered test limiting contact with medical professionals.

When it comes to protective gear and medical equipment, Apple, New Balance, Tesla, and 3M to name a few are all donating or producing medical equipment. Bloom Energy, a company based in the heart of Silicon Valley, is repairing thousands of broken ventilators sent by the federal government to aid California. Even Congress is aiding by allowing manufacturers that produce face masks for industrial use to produce them for medical purposes.

The crucial bulk of the federal executive’s response has been offering non-legally binding guidelines and crucially redistributing cash to the states to direct their own responses. As more cases are diagnosed ahead of the ostensible peak, it will make state-level responses, the private production of medical supplies and the cash injection from the federal government ever more crucial.

This virus also creates ripe conditions for infringement of civil liberties and executive overreach. Both challenge us to consider what actions the public will tolerate as part of a mitigation strategy, including the criminalizing quarantine violations. On the executive level that includes the president exercising a range of ostensible emergency powers from declaring martial law to initiating a national lockdown or stay-home policy. Ironically, given the breathless media commentary over the president’s autocratic impulses over the last three years, Trump has practiced restraint even as several media outlets, including the New York Times editorial board, have all but called for Trump to order a national lockdown. That said, with 97 percent of the country already under state stay-home policies as of April 6, the country appears to be on a crucial trajectory toward providing the health care system enough time to prepare for cases throughout the year.

Some have been prompted to consider how coronavirus will impact federal policy. Much of what’s been suggested sounds both more socialistic and more libertarian. It could mean growing popularity of cash as a basis for redistribution as well as passing sustainably fundable programs like sick leave and child care. It could also mean stripping the FDA and CDC of sole discretion over the development, enforcement and validation of medical devices, pharmaceuticals, protective equipment and life-saving counteractive measures like diagnostics, and instead deferring approval processes to state regulators and public and private labs. Apart from those, neutering the presidency of its most egregious unilateral powers and allowing Congress to vote remotely so members can spend most of their time in their state would be enhancements.

Centralization consolidates risk and always includes fewer people, less feedback and more latency. Decentralization, however, does not eliminate liabilities but crucially distributes them and binds more people together in the collective effort to mitigate the impact of those liabilities. The investment in community decentralization prompts won’t only continue to act as a brute force against coronavirus, but perhaps even be the first step to denationalizing our politics, depolarizing our society, and turning the tide against societal atomization where outsourcing the social contract to Washington or seeking a national consensus on everything takes a backseat to actually caring for our fellow equals around us.

Detractors will argue that federalism, and specifically states rights’, are institutions of a sordid past invoked to defend inhumane forms of human subjugation. It’s a case that should be given meaningful pause.

Aspirational models are prone to abuses: socialism, nationalism, capitalism and federalism. So a question becomes what features we discard as failed and what ones we incorporate into a model for a sustainable world that sufficiently checks central power.

The left-wing, especially, have strong convictions regarding the abuse of concentrated power. To that end, federalism should be viewed as an asset because if some on the illiberal right-wing have it their way, there won’t be any recourse for the opposition. Federalism affords more Americans more accessible avenues to pursue change democratically across 90,000 municipalities and over 50 states and territories. In a vast multicultural democracy uniquely rooted in a distinct skepticism of power, progress isn’t arriving at the a promise land or inching toward a uniform utopia. Nor is it adhering to one nationalistic identity above all.

Progress is sustained coexistence. This crisis has shown that mistaking unvented uniformity for progress is a recipe for needless suffering, and generally, risks the long-term unity of the American federation.

Writing about the States and the U.S. Senate, and sometimes the media industry.

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