In Coronavirus Crisis, California and Other States Fully Assert Their Power (and Why I Love Federalism)

Original art by our own Tito Gonzalez

Note: Law Soup aims to be a resource for unbiased factual information. This is an opinion piece, and solely reflects the opinions of the author.

I’m truly feeling love in a time of Coronavirus. My passion has grown over the last few years, and in the last several weeks it has reached a fever pitch (and no, I don’t have COVID-19). I need to shout it from the rooftops: I. Love. Federalism!

That’s right, I have strong feelings towards that political concept of the states as possessing their own powers, independent of the federal government. While federalism and “states’ rights” have traditionally found more support among conservatives, such as in their detestable fight against civil rights, liberals are now finding themselves in support of the idea that states should push back against the federal government’s efforts to dismantle the progress made under the Obama administration. And in the midst of Trump’s spectacular failure to properly deal with the Coronavirus pandemic, it’s time all of us embrace federalist and bottom-up, cooperative principles for the future of America, and humanity at large.

My argument is not about Trump, but we do have him to thank for helping us see all the vulnerabilities and problems with our national system. We now see clearly that we cannot and should not put our trust in, and concentrate so much power into the hands of one person, or even one level of government.

Trump is clearly not even interested in trying to do much to fight the Coronavirus, as he abdicates the responsibility of the federal government to provide necessary supplies. It’s each state’s responsibility to fend for itself, he says. Rather than get upset about this, frankly, I’m actually relieved (as is the LA Times).

You see, things could have gone much worse. Trump could have used this crisis as another opportunity to push the boundaries of presidential and federal authority. He even recently asserted that in deciding whether and when to end the social distancing guidelines, his “authority is total” and that states “can’t do anything without the approval of the president.” This is clearly false. Even in an emergency.

You see, before the founding of the United States of America, each state was essentially an independent country. In order to get them to unify as one country, the framers of the Constitution allowed the states to maintain some independence in certain areas. They listed specific powers of the federal government, also known as enumerated powers, in Article I, leaving the rest of the powers to the states. The 10th Amendment states, in full: “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.” (Even some conservative Republicans are quoting the 10th Amendment to push back against Trump)

In particular, states have the bulk of the police power, which is the authority to protect the health and safety of the people. And governors, particularly California Governor Gavin Newsom, are fully exercising that police power, taking matters into their own hands where the federal government has dropped the ball.

From the beginning of this crisis, Newsom has taken California on its own path, being the first governor to implement a statewide “stay at home” order. He has even started describing the state as a “nation-state” in using its vast economic resources to procure the necessary medical supplies, including masks and other equipment. With the world’s 5th largest economy, California can handle this crisis without the feds. California and other states are even starting to form alliances and partnerships to coordinate their actions, such as the Western States Pact and the Multi-State Council on the East Coast.

As a lover of federalism, I am intrigued by where all this is going. In general, decisions are best made at levels closer to the people, and the fixation on the federal government as the focus of power over the last several decades has been problematic. The states and cities are where the main action is and should be. We should take a cue from the local food movement and start taking matters into our own, locally grown, hands.

You can learn more about federalism and many more essential concepts of law and civics by reading our new book Law is Not for Lawyers (It’s for Everyone).

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