As we struggle through another week of shutdowns and social distancing, public debate has focused on federalism, of all things.  Most Americans know (or should know) that federalism is a defining feature of our governmental system.  But it is rarely featured as a topic on the nightly news or in dinner table conversation.  Recently, it has become a flashpoint in political squabbles over who has the authority to impose and—more important—to lift restrictions in the face of a pandemic.  Those who crafted our Constitution were no strangers to crisis, and, in the midst of our current situation, it is worth considering the wisdom and the consequences of their design.

The concept of federalism is both simple and ingenious. 

The concept of federalism is both simple and ingenious.  In plain terms, the Tenth Amendment provides:  “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”  Thus, much like the horizontal separation of powers amongst the three branches of the federal government—executive, legislative, and judicial—federalism is a vertical separation of powers between the federal government and the states.  The Founders insisted on this system for many reasons.  One is particularly apt in our current situation: local leaders are better suited to understand and adequately address local problems.

Especially with respect to matters of public health and safety, it makes good sense for policymaking to occur at the level closest to the communities at issue.  Because of their proximity to the unique characteristics and needs of their communities state and local leaders are better positioned than a distant federal government to make those decisions.  At the same time, they are more politically accountable to constituents whose votes can sway mayoral and gubernatorial elections.  As a result, state and local leaders rightly possess much of the nitty-gritty authority over shutdown orders, social distancing decrees, and the re-opening of our local economies.

But governors do not possess all powers, nor would they be wise to ignore the considered views of their state or federal partners.

But governors do not possess all powers, nor would they be wise to ignore the considered views of their state or federal partners.  Governors are not modern-day feudal lords who exercise plenary and absolute authority over their territories.  On the contrary, they share powers with their counterparts in the state legislatures.  The elected representatives who compose those legislative bodies are responsive to their respective districts, at an even more granular level than governors’ accountability statewide.  Here in Pennsylvania, the Governor recently announced that he would begin easing some restrictions, on the heels of legislative proposals from the General Assembly urging similar actions.

Moreover, federalism functions best when it is cooperative.  While state and local leaders are well suited to make local policy choices, the White House and federal officials are much better positioned to assess situations from a national perspective by collecting information from across the country.  As a result, the federal government can coordinate the key features of a national response to a nationwide crisis.  In addition, the federal government is well equipped to amass and deploy key resources to areas most in need.  Governors know this as well as anyone.  Indeed, as they have trumpeted their own authority, many have simultaneously implored the federal government for important funding and medical supplies.

Finally, with federalism, authority and accountability go hand-in-hand.

Finally, with federalism, authority and accountability go hand-in-hand.  The Founders placed significant trust in local leaders because those leaders would be responsive to local constituents.  So, as governors and mayors take the reins, they cannot shift the blame.  Instead, they should recognize both the importance and the limits that our constitutional structure confers on them.  In the wake of a hard-fought Revolutionary War and a disastrous experience with the Articles of Confederation, the Founders struck a balance:  Accountable, responsive state and local leaders are the front line of our governmental structure, but they share power with local partners and they must work together with a strong, unified national government.  That sort of cooperative federalism—not petty political turf battles—is what will get us through this mess.  Just as it always has.

Michael H. McGinley is a partner at Dechert LLP.  He previously served in the White House Counsel’s Office and as a law clerk to Justice Samuel A. Alito, Jr. and to then-Judge Neil M. Gorsuch.  The views expressed here are his own.

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