Trump almost certainly has his role backward. Under our system, the federal government is a government of limited powers; the Constitution enumerates its specific responsibilities, and under the 10th Amendment, all other powers are reserved to the states. The most important of these reserved powers is what constitutional scholars call “police power,” which gives state governments the authority to make plenary decisions over public health, safety, and order. The framers, as Ilya Somin, a professor of law at George Mason University, explained to me, gave the states primacy over quarantines and public health, a power they routinely exercised from the earliest years of the republic. In theory this works hand-in-glove with things only the federal government can do: deploy its vast financial resources; leverage the CDC, FDA, and the other alphabets of expertise that the states can’t hope to match; and use its unique coalition-building capacity to forge disparate state efforts into a true national push when needed.
That’s the theory, but the Trump administration’s effort has tended more toward foot-in-ass. While some governors moved quickly to implement social distancing rules and restrictions on commerce, the White House stumbled in its key responsibilities to organize, marshal, and equitably distribute resources. Erwin Chemerinsky, the dean of Berkeley Law and a noted authority on federalism, told me that the federal government is “uniquely suited” to lead such an effort, and that “history will poorly judge” the president. The lack of a comprehensive effort from the federal government has left many states short on supplies and stuck fighting other states for scarce resources. On Tuesday, Cuomo reported that New York State had been forced to compete for ventilators from China, likening it to “being on eBay with 50 other states.”
It’s not surprising, given his past utterances, that Trump has a misshapen view of the role of the president here. And to be fair, the lines of authority are somewhat complicated in a national emergency involving a virus that doesn’t respect state lines, one that has no interest fitting neatly into a constitutional flowchart. In truth, Trump’s lack of clarity around the limited powers of the federal government would likely have been forgiven or downright ignored if he had done what he was supposed to do. In the long run it’s not his oversteps that will be remembered, but his halting ineffectiveness.
The health consequences of the fractured federal response are unfolding in front of us. The longer-term effects on our federal system are less clear. National emergencies have typically led to greater centralization of authority, a concept Semin explained to me and which was also described more fully this week in a Reason article. There are reasons, however, to think that may not be the case here. Some of the usual suspects in favor of the centralization of power should have cause to be increasingly disenchanted with the idea. For the better part of a century, it has been American liberals—through the labor movement, the New Deal, and the civil rights era—who have pushed for a stronger central government. But in the last few years, in response to perceived oversteps by the Trump administration, Democrats, led by those in California, have articulated a more muscular vision of state rights on everything from carbon emissions to immigration policy.
If Trump stands for anything, for many liberals it is the danger of concentrating too much power in the hands of someone with autocratic instincts and a feckless sense of institutional roles. Like the framers themselves, liberals may now be less certain of voters as a trustworthy check on those instincts. And Washington, even with a Democrat in the White House, Bernie Sanders in the Senate, and Alexandria Ocasio-Cortez in the House, is increasingly a bad bet for the realization of a progressive vision for America. We are in the middle of the least productive Congress in modern history, part of a longer trend toward partisan gridlock in Washington regardless of who’s in control. If progressives want a new vision of America, their path may be through Sacramento or Albany or even Columbus, if Meadow has her way.
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