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Fighting COVID-19 in the United States
with Federalism and Other Constitutional
and Statutory Authority
BeverlyA. Cigler
Penn State Harrisburg, USA;cigler@psu.edu
The COVID-19 pandemic challenges a workableAmerican federalism.TheTenth Amendment to the
U.S. Constitution reserves plenary responsibilities to states for promoting health and well-being;
but states and their local governments suffer from a significant lack of resources and
interjurisdictional competition during major emergencies. In this article, I argue that a president
has significant constitutional and statutory authority for pandemic preparedness and, by law, is
responsible for leading a coordinated national response necessary to a pandemic. The article
outlines the constitutional and statutory authorities available to President Trump and assesses
how he used those powers to address the pandemic. It is argued that early, decisive national
coordinative systems for containing and mitigating the virus; testing, tracing, contacting, and
isolation protocols; data collection standardization; procurement and distribution of supplies;
and planning vaccine eligibility and distribution could have reduced the state and local
government disadvantages early in the pandemic, saving lives and boosting the economy.
A recent Publius article mentions COVID-19 as the “federalism event of the
century” (Goelzhauser and Konisky 2020). In assessing the poor performance of
U.S. governmental institutions in combating COVID-19, some scholars place
blame on the nature of American federalism, with its division of powers and
reservation of significant authority to state governments resulting in fragmentation
of authority, policy-making, and implementation. In this article, I challenge this
interpretation of the reasons for the poor performance of American governing
institutions in responding to COVID-19, arguing instead that U.S. federal officials
not only possessed adequate power to address COVID-19 in the crucial periods of
preparation and initial response, but also that it was their responsibility to do so.
Failures are attributable to President Donald Trump’s refusal to accept his legal
responsibility to lead a coordinated and collaborative national response based on
statutory laws that guide heath emergencies and catastrophic emergency response.
Publius:The Journalof Federalism
volume 51number4, pp.673^692
doi:10.1093/publius/pjab021
AdvanceAccess publication1 August 2021
ßThe Author(s) 2021. Publishedby Ox fordUniversity Press on behalf of CSFA ssociates:Publius, Inc.
All rightsreser ved. For permissions,please email: journals.permissions@oup.com
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It is also argued that the President’s failure to accept responsibility and exercise
existing authority quickly and fully, decisively and competently, increased the
problems of state/local capacity and interjurisdictional competition, which led to
an excessive loss of lives (Achenbach and Meckler 2020; Hsiang et al. 2020) and
increased economic hardship as state and local governments exercised their powers
to protect the public.
Public health, not economic recovery, is the focus here because disease
containment must occur before strong economic recovery is possible. Issues
unanticipated at the Founding of the U.S. Constitution have expanded
constitutionally justified national powers during catastrophic events when state/
local governments confront unexpected issues that overwhelm their administrative,
technical, and financial capacities, and sometimes their political will. COVID-19
respects no boundaries and its demise benefits the entire nation. The
“intergovernmental paradox of emergency management” is applicable to a
pandemic: state and local governments are at center stage in terms of
responsibilities during an emergency, but may be unlikely to perceive of a threat
fully, be prepared for it, or possess adequate resources to confront it. The national
government must be concerned with jurisdictions nationwide and any obstacles to
prevention, mitigation, preparedness, response, and recovery (Cigler 2007). This
paradox suggests the significance of the “who’s in charge?” questions related to
pandemic response.
The article proceeds by first outlining scholarly arguments that attempt to
explain the largely failed COVID-19 response and identifying key omissions in
many analyses. In analyzing the design of both the U.S. public health and
emergency management systems, I highlight the unambiguous coordinative
responsibility required of the federal government in a major health catastrophe,
focusing on the major statutory powers and authorities of the president. This is
followed by a discussion of the performance of the Trump Administration’s
leadership role and coordinative responsibilities set forth by law. A concluding
section summarizes why federalism was not the cause of the poor U.S. COVID-19
response.
Federal Government Authority to Respond to Catastrophes
Writing about the U.S. response to the pandemic, McDonald, Goodman, and
Hatch (2020) cite numerous articles that accurately depict the bottom-up design of
the U.S. disaster response system, which begins with local first responders and
acknowledges assistance from state and national governments, as needed.
Overlooked, however, is that emergency management adjusts during catastrophic
events and that emergency statutory powers become available for a pandemic
response that the authors depict as “uncertain due to the novelty of the situation”
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and conclude that “limitations of federal government authority hinder the ability
to lead a response.” Kettl (2020) acknowledges the lack of a comprehensive federal
response to COVID-19 and discusses the need for national leadership, but does not
examine existing federal powers to assess whether a president possesses what is
necessary to lead a national response, suggesting instead that it was President’s
Trump’s “choice” and not his “responsibility” by law to lead and coordinate the
pandemic response. Like so many other scholars who have assessed federalism’s
role in the COVID-19 response, Kettl concentrates on the patchwork of state and
local responses throughout the pandemic. In another article, Kettl (2021) focuses
on scientific uncertainty, arguing that it made uniting around solutions such as
mask wearing uncertain and suggested that the “bigger questions” of when national
actions or state leadership are needed remain unanswered.
Kincaid and Leckrone (2020) argue that the federal government responded
“vigorously” initially but that “constitutional dualism” resulted in a “lack of
authority” to impose key policies such as stay-at-home orders and mask mandates.
They note a pattern of “erratic, insufficient, and sometimes destructive” federal
support and unproductive use of the media and maintain that the novelty of the
virus made the “best” national policy response “not immediately evident” and
conclude that the “federal government lacks constitutional authority to command
a national response.” They do not attribute response drawbacks to structural flaws
in federalism and point to party partisanship and preferences by the president,
governors, and other executives that frustrated an effective response. Like Kettl,
they refer to “choices” and not responsibilities defined by law. Like Kettl, they do
not consider preparation or the effects of the gamut of early national actions on
the state/local response. These distinctions are important because a focus on
choices/preferences by President Trump can overshadow a focus on legal
responsibilities and, thus, accountability.
In contrast to the public administration scholars, some legal (Berman 2020;
Knauer 2021) and presidential (Rudalevige and Yu 2020) scholars consider
statutory powers when assessing the U.S. national response to COVID-19 and
conclude that the national government had extensive powers to combat the
approaching coronavirus and that it had a legal coordinative responsibility to do
so. Preparedness and the earliest stages of the response are suggested to be highly
consequential. Scholars at the Max Planck Institute, in addition, examine U.S.
pandemic response action within international law (von Bogdandy and Villarreal
2020), adding to an understanding of U.S. national coordinative responsibilities.
Clearly, federal authority is not plenary and there are limits to what federal
officials can do. There is no federal power to close or reopen schools or businesses
or require individual mask-wearing outside of federal property, or issue lockdown
or stay-at-home orders. However, state actions can be encouraged through
persuasion, funding, and other incentives. A president can offer clear consistent
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“guidelines” to states for nonpharmaceutical mitigation (stay-at-home, social
distancing); testing, contacting, and isolation protocol; data collection and analysis
protocols; clear and consistent criteria for reopening schools/businesses; and
vaccination priorities and distribution guidance. Federal officials cannot
“command” states to discharge their public health responsibilities, but they do
possess a significant degree of statutory grants of power for responding to a major
health emergency. In fact, key legislation explicitly states that the president has the
responsibility to take the lead in a catastrophic emergency and to coordinate a
national response. The choice involved is whether to accept the responsibility.
Limitations of Existing Arguments regarding Federalism’s Role in a Pandemic
Response
Existing assessments of federalism’s role in the pandemic can be faulted for failure
to incorporate several key concerns:
1. Presidents and their administrations have both constitutional and expansive
statutory powers during major emergencies; but most scholars focus solely on
constitutional powers.
2. The U.S. public health and emergency management systems are flexible,
adapting differently to catastrophic events than to “bottom-up” routine
emergencies.
3. With regard to saving lives and reducing the duration of economic disruption,
the key focus should be on preparedness/planning and early, decisive response.
Containment strategies such as international travel bans and non-
pharmaceutical interventions are most important early when it is possible to
keep the virus out of a nation and when drugs and vaccines are not yet
available. Similarly, testing, contact tracing, and isolation protocols are
important early to target interventions by state/local governments and to
“buy time.” Standardized coordination of data collection and analysis also is a
key to targeted intervention and tracking community spread of a virus. The
availability of supplies for health care workers and patient treatment, testing,
and vaccinations all call for quick action that avoids excessive costs and
detrimental competition. While vaccine development is the best hope for
winning the war on the virus, success depends on the ability to inoculate,
which not only requires adequate testing supplies and personnel, but also
efforts to thwart any vaccination hesitancy of the public. As such, the best
approach for examining federalism’s role in a pandemic is to assess actions
taken or not taken and with what outcomes in the early days and weeks of the
disease. The negative effects of federalism such as inadequate capacity,
interjurisdictional competition, an uncoordinated patchwork of policies, etc.
within national-state and state-local relations are, in large part, the result of
national government initial action or inaction.
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4. Understanding federalism’s ability to fight a pandemic should rely on insights
from the literature on federalism and intergovernmental relations, but also that
of public law, public health, and emergency management, especially during
catastrophes, along with the texts of major laws and existing plans. Using these
sources, this article finds support for its conclusion that President Trump and his
administration had the legal authority—and responsibility—to lead a compre-
hensive, coordinated national response to COVID-19 in ways that would help
state/local jurisdictions early enough to lessen the widely noted problems with
state/local governments’ ability to handle their responsibilities. The questions of
who’s in charge of what during a catastrophic emergency are addressed in
existing laws.
The U.S. Public Health and Emergency Management Systems
The U.S. public health and emergency management systems reject a strict dual
federalism model of “either-or” that would divide responsibility and power into
discrete categories. Instead, a cooperative federalism model that uses a flexible
application of the Tenth Amendment and designs systems that envision national
government leading cooperative relations within itself and with the states is in
place. Shared power is at the heart of federalism, so leadership matters—including
the need to coordinate all actors and government levels while working with the
private and nonprofit sectors. Questions regarding who’s in charge, who’s
responsible for various activities, and who will be held accountable become central
to vertical and horizontal implementation policy success. The systems are centered
on the executive branches of government levels—those most responsible for
coordinating and implementing plans within their branches, among and between
jurisdictions, and with the other sectors (Holahan, Weil, and Wiener 2003; Mariner
et al. 2020).
The U.S. public health system is highly decentralized and fragmented at every
level, making coordination challenging. States and 3,000 local public health
departments are most responsible during a health emergency and different
structural models for state implementation are allowed, enabling state choices and
ability to transfer innovative ideas. Autonomy and experimentation are promoted.
Moreover, while there is competition and cooperation among and between
jurisdictions, they can work together to negotiate with their national counterparts.
There are clearly not separate spheres of public health federalism, nor is any level
subservient; instead, the public health system is adaptive on all levels (Gluck and
Huberfeld 2018; Gostin and Wiley 2020: Gordon, Huberfeld, and Jones 2020).
The U.S. public health system was largely “hollowed out” before COVID-19
arrived and even during the pandemic (Weber et al. 2020). Since 2008, local health
departments have lost nearly 25 percent of their workforce, with budgets flat on
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average. Small departments operate with 11 percent fewer resources and large
departments with 30 percent fewer resources, not considering inflation
(Himmelstein and Woolhandler 2016; National Association of County and City
Health Officials 2020).
State and local health departments focus more on chronic diseases (e.g., heart
disease and diabetes) than infectious diseases. Local systems vary by state in
structure, funding, capacity, and effectiveness. Fully trained staff, adequate
equipment, stockpiled supplies, and strong funding are not the norm. It is the
national government that possesses an enormous amount of resources to deal with
health emergencies; however, even the Centers for Disease Control and Prevention
(CDC) has endured significant budget cuts in recent years, hampering the ability to
investigate diseases, gather and analyze data, and develop adequate testing
procedures (Farberman et al. 2020).
For the management of domestic emergencies, the U.S. established a single
comprehensive approach in 2003: A National Response Framework (NRF). State
and local jurisdictions are given initial responsibility during a disaster event, but
when their resources are overwhelmed, or when the national government’s interests
are involved, that level assists and also works with other sectors. Global pandemic
planning falls within this national preparedness and response strategy, which
integrates the national government’s domestic prevention, preparedness, response,
and recovery plans into one “all hazards” plan (Homeland Security Act of 2002,
Pub. L. 107–296, 116 Stat. 2135, codified at 6 U.S.C. § 101 ET set). The NRF places
ultimate responsibility on the President for the federal response to catastrophic
incidents to ensure that the necessary resources are applied quickly and efficiently.
Specific threats such as a pandemic are addressed by the NRF’s Annex on
Biological Incidents, revised in 2017 (U.S. Department of Homeland Security 2017).
National government roles and responsibilities include national declarations;
operational coordination; public information and warning; Personal Protective
Equipment (PPE); a Defense Production Act (DPA); resource adjudication,
screening, medical and nonpharmaceutical interventions; health and medical
services; modeling; waste management; relocation, alternative housing and re-
occupancy; and patient transportation.
The NRF includes a comprehensive management system for responding to
domestic incidents regardless of the cause, size, location, or complexity, called the
National Incident Management System (NIMS). Prepared by the Secretary of the
Department of Homeland Security (DHS), it provides a list of Emergency Support
Functions (ESFs), which categorize the capabilities and services of all sectors
potentially needed in a disaster. These comprehensive ESFs are central to NIMS
and the NRF in guiding the Federal Emergency Management Agency (FEMA) in
taking a coordinative lead in emergency response. For COVID-19, ESF-8 Public
Health and Medical Services is of key importance in knowing response needs and
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Health and Human Services (HHS) is the lead federal agency for dealing with public
health; medical surge support and patient movement; behavioral health services; mass
fatality management; and veterinary, medical, and public health services.
The Trump Administration released the National Biodefense Strategy and National
Biodefense Strategy Implementation Plan to address the possibility of pandemic flu in
2018. It covers naturally occurring, accidental, or intentional biological agents (U.S.
Department of Homeland Security 2017). The Implementation Plan to combat a
pandemic explicitly acknowledges both that the national government is the key actor
and that international cooperation as essential in dealing with infectious disease
threats (U.S. Department of Homeland Security 2017).
The wording used in documents to explain the nation’s “all-hazards” approach
to “incident management” does not fully depict the challenge of a global pandemic,
which is a rolling disaster of unknown duration, not a confined incident. More
important, however, is that substantial pandemic-focused guidance exists for a
president (e.g., Blue Ribbon Study Panel on Biodefense 2015). In fact, the language
used in the National Strategy for Pandemic Influenza Implementation Plan compares
a severe pandemic to a war or widespread economic crisis, not as a hurricane,
earthquake, or terrorist act (Homeland Security Council 2006, 2).
The national government is not only responsible for coordinating a
comprehensive and timely national response to a catastrophic event; it also has
primary responsibility for what the emergency management community labels as
“critical functions.” These include the support of containment efforts overseas and
limiting the arrival of a pandemic to the US; guidance on protective measures that
should be taken; modifications to laws and regulations to facilitate a national
pandemic response; modifications to monetary policy to mitigate the economic
impact of a pandemic; and procurement and distribution.
Glock (2020) points to more than a dozen existing pandemic plans consisting of
thousands of pages written by various agencies. Plan revisions and updates utilize
lessons learned from the Zika virus, Ebola outbreaks, H1N1 pandemic, Avian flu
and other events, all available on the CDC website (U.S. Department of Health and
Human Services 2017).
Existing laws and plans as the pandemic reached the United States included the
importance of foreign containment to prepare for the disease within the United
States; the need to develop nonpharmaceutical mitigation options, such as
protocols for physical distancing and school/business closings, in case containment
is not successful; the need for diagnostic tests, contact tracing, and protocols for
state/local action; effective treatment, and a vaccine, which would require
streamlined approval processes and distribution priorities; a workable supply chain
for medical supplies and flexible approval of waivers; and honest, accurate and
timely information to the public; attention to the disruptions of daily life for
extended periods that would be inevitable during a severe health emergency;
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adequate surge capacity and more hospital beds, and ventilators; anticipation of
shortages of PPE; preparation for overwhelmed mortuary services; and clear
guidelines for managing communications with state, local, and tribal authorities,
institutions, the public, and global partners. It is important that the Pandemic and
All-Hazards Preparedness and Advancing Innovation Act of 2019 (P. L. 116-22),
became law and provided funding and planning authority shortly before the first
case of COVID-19 reached the United States on January 21, 2020.
Despite problems, U.S. emergency and pandemic plans designate and assume
that strong, decisive national leadership within constitutional powers and
limitations will occur. Once health agencies signal the spread of a dangerous
virus, plans are supposed to be implemented. Coordinative responsibility for the
assault on COVID-19—among national government agencies, national-state
relations, and internationally—places the national government at center stage
with the president, specifically and unambiguously, designated as the lead.
Within the existing strategy and management frameworks. President Trump and
his Administration had extraordinary emergency declaration powers, several other
powerful legal tools useful to a coordinated, comprehensive national response, and
all of the resources of the national government. The following subsections highlight
key laws with attention to issues of the timing of actions so important to
understanding the national response to COVID-19.
Emergency Declarations
The Department of Health and Human Services (HHS) is the lead agency for
pandemic preparedness, plans, and coordination with bioengineering research and
hospitals and helps with testing and vaccines, as well as ethical issues pertaining to
treatment and supplies. Health agencies play advisory roles in public health
emergencies and also provide valuable data. For COVID-19, the HHS Secretary
declared a public health emergency on January 31, 2020 using the Public Health
Services Act (PHSA), which unleashed aid to the states and suspended and
modified many health rules and regulations, States also waived regulations.
Hospitals and providers, thus, gained flexibility from complex regulatory
requirements. The Public Health Services Act of 1944 (P.L. 78-410, 58 Stat. 682)
was amended by the CARES Act (March 2020, P.L. 116–136) to add ventilators to
the list of items in the National Stockpile, explained below. Because it was a health
emergency declaration, HHS was put in charge of the national response and the
HHS Secretary originally chaired the official Coronavirus Task Force that was
created. On January 31, 2020, the FDA also declared a public health emergency to
allow quick approval of new diagnostic tests and state lab oversight.
On March 13, 2020, President Trump used The National Emergencies Act (NEA)
of 1976 (P.L. 94-412, 90 Stat. 1255) to declare a national emergency regarding
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COVID-19. This allowed for emergency powers to suspend rules and regulations
from dozens of statutory provisions related to public health, military, trade,
agriculture, transportation, communications, criminal justice, and other policies. It
also allowed the HHS secretary to waive or modify legal restrictions, such as limits
on telemedicine and requirements on healthcare providers to expand their
capacity, as well as easing regulations to allow more labs.
Federal Emergency Management Agency
Not all states have laws allowing public health emergencies; instead they can
declare general emergencies that can include health. For COVID-19 all states
declared emergencies and President Trump made emergency declarations for all
states, tribes, territories, and the District of Columbia. This brought FEMA into the
pandemic response and enabled states to receive disaster relief funding and
logistical support. FEMA’s role stems from the Robert Stafford Disaster Relief and
Emergency Assistance Act (42 U.S.C. §5191 et seq.) authorizing a President to
declare a national emergency and to provide aid to state and local governments,
typically for natural hazard-related disasters such as flooding and hurricanes, not
public health crises.
FEMA is not a large agency so hires contractors, for example, to help with
sheltering and meals with charities and faith-based organizations. For the
pandemic, many contracts were extended for supplies and their distribution. FEMA
uses NIMS under the NRF to provide guidance to states and local governments,
which are required to have emergency plans, and to the private sector and non-
governmental organizations (NGOs).
Stockpiling and Supply Chains
A deadly pandemic requires massive amounts of products, including their production
and distribution with attention to costs, quality,andequity.PPE,suchassurgical
gloves, N95 masks, hospital beds, ventilators, etc. are needed as are testing supplies
such as reagents and swabs. Therapeutics and vaccinations require systems for
production, but also syringes, needles, glass vials, rubber stoppers, and swabs, as well
as allocation decisions. Vaccinations require equitable distribution to multiple types of
sites (hospitals, pharmacies, mass clinics) and ways to bolster community engagement.
A President’s access to supplies has multiple routes, beginning with a forty
billion dollar reservoir in the Stafford Act to draw upon for medical equipment
and supplies. The Defense Production Act (DPA) (50 U.S.C. § 4511 et seq.) offers
substantial power to order private companies to produce and expedite production
of goods and materials including coordination among manufacturers. Its other
authorities are issuing loans to expand capacity; control of product distribution;
and the ability to compel prioritization of products ordered by government. HHS
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also can require private businesses to prioritize government contracts to produce
PPE and equipment.
The United States also has a number of strategic stockpiles. For COVID-19, the
Strategic National Stockpile (SNS) has medical supplies and equipment such as
ventilators and beds to supplement state/local resources. The SNS had an $8B
inventory for the pandemic, with its composition determined by CDC, FDA, and
the National Institutes of Health (NIH). The Strategic Petroleum Reserve stores oil
barrels in sites in Texas and Louisiana. FEMA has eight distribution centers for
food, water, and generators. Other national stockpiles did not come into play
during the pandemic.
Planning and Drills
The Obama Administration had a dedicated pandemic team at the National Security
Council (NSC) that created the Global Health Security and Biodefense Directorate to
have a permanent team of experts available to plan for and implement a response to
emergencies such as a global pandemic (Berman 2020). It was disbanded in 2018 by
the Trump Administration, leaving political appointees with significant influence on
health issues. The Obama Administration gave a sixty-nine-page Pandemic Playbook
to the Trump Administration (Executive Office of the President of the United States
n.d.) and other handbooks to HHS and CDC. The detailed decision-making process
for responding to a pandemic in the Playbook would have empowered the NSC’s
pandemic office to lead a coordinated national response. It states: “the American
public will look to the U.S. Government for action when multi-state or other
significant public health events occur.” After disbanding the pandemic office, the
Trump White House never had a lead unit to deal with COVID-19.
In October 2019, HHS held a pandemic drill, Crimson Contagion, with some
states and national agencies and FEMA had a pandemic drill. CDC health experts
were at the World Health Organization (WHO) when it sent a worldwide alert in
early January 2020 about China’s poorly understood but spreading disease. U.S.
public health experts in government and universities, self-named as the “Red
Dawn” group, wrote frequently about a likely pandemic and urged preparation.
CDC issued travel alerts on January 6–8, 2020. The President’s Daily Briefings
included pandemic updates, the HHS secretary warned in a memo and phone call
about a possible pandemic, and the President’s trade adviser wrote memos about
the coronavirus in late January (Lipton et al. 2020).
Task Forces
An official Coronavirus Task Force was formed on January 29, 2020 chaired by the
HHS Secretary, but soon replaced by Vice President Pence. Members included
health and intelligence experts and cabinet secretaries. The group initially held daily
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press briefings to inform the public about the worsening health threat but President
Trump eventually conducted the press briefings and was widely criticized for
conveying misinformation. Other task forces were created during the initial months
of the pandemic but with never met or were quickly and quietly disbanded.
Trump Administration Decision-Making in Response to Covid-19
Decisions, actions, and inactions of President Trump and his Administration
regarding the pandemic led to a flawed response. Four broad problem areas are
reviewed here: (i) A lack of foresight and planning; (ii) slow action in the exercise
of powers clearly possessed, in some cases; (iii) in other cases, not using authority
clearly possessed; and (iv) failing to forge collaborations when having direct power
to order action or responsibility to support actions at other levels.
Lack of Foresight and Planning
President Trump stated repeatedly that “No one could have predicted something
like this” when referring to COVID-19 (Schwartz 2020;Lipton et al. 2020), despite
multiple plans and exercises predicting a major pandemic, which provided detailed
guidance, especially the Obama Playbook. Major laws explain lead responsibility
and procedures governing health catastrophes, designating the president and
national government (FEMA and HHS) to be in charge.
While $18.5 billion was invested in gambling successfully on vaccine creation in
record time, just $8.2 billion was spent on therapeutics, including coordination of
large trials and shared data. Drugs save lives, especially when vaccines are not
available at the beginning of a disease event as a virus multiplies quickly when
many people are susceptible (Zimmer 2021). There was not centralized leadership
for coordinating eligibility guidelines or distribution of vaccines in the planning
stages or after (Hennigan, Park, and Ducharme 2021). Similarly, there were no
national strategies for data collection, supply chain, equity issues related to
vulnerable populations (minorities, the homeless, prisoners, nursing homes). And,
there were not national protocols for testing or consistent guidance to states
regarding nonpharmaceutical interventions.
The Washington Post’s interviews with twenty-two senior officials early in the
pandemic found stockpiling PPE and other medical supplies such as testing kits
was discussed early by the official Task Force, but border control was prioritized
instead (Parker, Aboutaleb, and Dewey 2020).
Slowness and/or Ineffective Use of Authority and Powers
The CDC made immediate, significant errors in refusing WHO tests even
temporarily, developing its own defective tests, and turning late to the private
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sector without field teams ready to detect cases or trace contacts. None of these
problems were the fault of the President, however, he didn’t make an effort to have
them corrected. State and university laboratory officials complained about the
crucial delays and were approved for developing and analyzing tests. In the
meantime, the President made false statements and unachievable promises about
testing that continued throughout his presidency. Promises made through early
March 2020 included a Google website, tests for everyone, drive-through testing,
and a surveillance system for five American cities to measure the disease spread
and to locate hot spots. None materialized.
Atkinson et al. (2020) offer a comprehensive understanding of the supply chain
problems early during the pandemic, which were far beyond slow action and were
characterized by the lack of cohesive procurement policies that deviated from all
best practices beginning with the President’s assertion that his Administration was
“not a shipping clerk” and that governors are responsible for securing supplies.
The growing threat of the disease in late 2019 and early 2020 was either not
recognized or denied by the President, contributing to a slow response. Missteps
and mixed messages fraught with denials, distractions, misinformation, disinfor-
mation and empty promises caused early confusion (Paz 2020). The President
focused in January–February and into March on the economy more than on health
issues, Vice President Pence, as Task Force chair, had productive phone calls with
governors, but a comprehensive national strategy for liaison with state/local
officials was never developed. The President’s few encounters with governors were
often contentious and included conflicting statements regarding responsibility.
Initially he claimed “total authority” over the states and warned governors of
political consequences if they refused his authority, but quickly withdrew and told
governors that they were responsible for the life and death decision-making needed
to battle the coronavirus. That so-called “choice” was a refusal to accept legal
responsibilities that created challenges of lost responsibility/accountability across
the governance system. This made it more difficult for state/local officials to secure
voluntary compliance for their actions such as ordering lockdowns, stay-at-home
orders, and mask wearing and complicated the ability to secure supplies, test,
vaccinate, and accomplish other tasks.
The National Strategic Stockpile (NSS) was slow to move needed PPE and
equipment where needed. Much in stock was outdated or quickly depleted and to
restock FEMA bid against states, which increased costs. Jared Kushner, adviser to
the President and his son-in-law, mistakenly claimed that the NSS is for the
national government, not the states and the Administration supported his
misunderstanding by changing the wording on the Stockpile website to match his
claim. When the President, against medical advice, promoted an anti-malarial drug
as a COVID-19 cure, millions of pills were purchased and subsequently stored in
the Stockpile after FDA warned against their use other than in hospitals and
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clinical settings. A Kushner-headed task force to help states with supplies was
highly criticized for its secrecy, favoritism, and use of inexperienced volunteers
(Brittain, Stanley-Becker, and Miroff 2020).
The President was slow to designate FEMA to assume the lead role for
emergency response, waiting until March 18, 2020. By April, the agency was
pressed to prepare for the hurricane season beginning in June so lead roles were
shifted. FEMA’s early operations were heroic at times (e.g., building temporary
hospitals with the U.S. Army Corps of Engineers) but, at other times, work was
slow and ineffective. Governors and medical personnel complained throughout the
Trump presidency and especially during the crucial first months about the lack of
essential supplies and competition among themselves that they could not resolve.
Rising costs of PPE due to worldwide shortages and price gouging, bidding wars,
and poor distribution were met with inaction or slowness. Supply gaps required
closure and improved allocation among states because medical supplies are largely
manufactured abroad. The Trump Administration shifted priorities from FEMA’s
operational coordination over PPE and hospital equipment logistics to a longer-
term recovery strategy prematurely by focusing on reopening the economy during
spring 2020 when the virus was not well-contained.
Not Using Existing Authority
Under authority of the Constitution’s Commerce Clause the President issued
limited travel restrictions on China, Italy, and Spain that went into effect in early
February 2020—with many exemptions. Travel restrictions from many European
nations were included six weeks later. Hundreds of thousands of travelers had
already entered the United States before the restrictions and after the exemptions.
A real-time table top exercise modeled after the Crimson Contagion drill led the
Task Force to the realization that a containment strategy attempting to keep the
virus out of the United States and to isolate those infected was not working and
had to evolve to a focus on a mitigation strategy to stop the spread of COVID-19
until a vaccine became available. Physical distancing and more aggressive measures
that would disrupt the economy were recommended to President Trump in late
February but he offered inflated rhetoric and promises in public statements instead
and didn’t recommend guidelines to state/local officials until mid-March but
almost immediately spoke against his Administration’s guidelines and did so until
his term ended.
President Trump was hesitant to use the full powers of the DPA because of a
concern about nationalizing private businesses, which the law doesn’t do. Instead,
it orders, expedites, and pays industry for essential goods, even protecting against
liability. He was not hesitant to use the DPA to help relieve oil/gas industry
suffering from low demand and sinking revenues so purchased oil to fill the
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Strategic Petroleum Reserve. The DPA was used to order the opening of meat
processing plants after COVID-19 infected thousands of workers in hundreds of
plants, frightening others from going to work, which closed plants, reduced
operations, and resulted in meat and poultry shortages. There was less concern for
worker safety as the Department of Labor was not used to protect workers.
The DPA was used for ventilator production but only after a delay occurred and
new medical knowledge about COVID-19 had lessened the need for ventilators.
President Trump then sent many abroad, not considering the possibility of future
surges of COVID-19. Overall, the DPA was used less initially to help slow the
spread of the disease than to boost the economy. By May, it was used to secure
swabs and eventually was used extensively for vaccine development.
Coordination Failures or Inefficiencies
A September 2020 release of eighteen taped interviews with President Trump by Bob
Woodward for a book, revealed intentional misleading of the public about the
seriousness of COVID-19 very early during the pandemic (Bump and Parker 2020;
Costa and Rucker 2020). A Cornell University study of COVID-19 misinformation in
38,000 articles in English-language media found President Trump mentioned in 37.9
percent of misinformation statements—more than any other topic. The conclusion
was that he was likely the largest driver of COVID-19 misinformation in the world
(Evanega et al. 2020). Other early investigations arrived at similar conclusions
(HaBerman 2020), finding that Americans had low levels of trust in the President’s
pandemic statements before the Woodward revelations (Pace and Fingerhut 2020).
Distrust of scientists (Friedman 2020) and medical personnel was unwavering
throughout the pandemic by the President, who promoted unproven remedies and
pressured state and local governments to reopen their economies quickly, and against
medical advice. Armed protestors were encouraged to “liberate” their states from
infringement on their personal liberties due to state/local stay-at-home, mask wearing,
and lockdowns. Excessive partisanship and favoritism regarding supply chain issues
occurred (Mulvihill 2020) and emergency management professionals claimed that the
politicization of the disaster response directed by the White House was
unprecedented in modern history in rewarding contracts and allocating resources
(Allen, McCausland, and Farivar 2020). The Select Subcommittee on the Corona
Crisis (2020) documented forty-seven separate incidents within a pattern of political
interference in the nation’s coronavirus response. Examples include suppression of
whistleblower concerns; altering, delaying, and suppressing guidance and scientific
reports by federal health agencies such as the CDC and FDA; removal and sidelining
of health experts; and authorizing questionable medical treatments after scientists
objected. The analysis was based on public reporting with full citations of the articles
used provided in the document, published after 207,000 U.S. deaths.
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The examples of the President’s lack of support for state and local officials is
just one part of his lack of coordinative success. His executive branch was fraught
with infighting, turf wars, and rivalries among officials and agencies, first
documented through mid-March 2020 by Haberman and Weiland. Clear
assignment and priorities were not established. When the dedicated pandemic
team at the NSC was disbanded in 2018, professional expertise for planning and
implementing a response to COVID-19 was diminished in the Administration and
political appointees had significant influence on health issues. Disregard of the
Obama pandemic Playbook meant that plans for decisive national action, especially
in coordinating a response were also diminished.
The Administration’s official Task Force didn’t include some key health officials
and high turnovers and staff vacancies led to less direction, oversight, and
mentorship making coordination across the bureaucracy difficult. A number of
President Trump’s health officials explained clashes with the appointed HHS
Secretary over testing and the Administration’s significant interference with
important CDC reports (Panetta 2021).
Early in his interactions with state officials, the President conveyed puzzling
interpretations of his role in the federal system. He once claimed that he had “total
authority” (Flynn and Chiu 2020; Savage 2020) then that the states should handle
things such as securing PPE on their own on the open market because the national
government was not a “shipping clerk” (Forgey 2020) and only a “supplier of last
resort.” Procurement problems, confusion, and bidding wars were eventually
reduced but not eliminated and the greatest setbacks to the states were early when
the disease outbreak began.
A president has the power to make binding international agreements and
coordinate activities with other nations (von Bogdandy and Villarrreal 2020).
Global cooperation is needed in the race for treatments and vaccines, which
involves negotiation, collaboration, and plans. The United States refused to join the
global coordinated effort organized by WHO, despite resolutions of support from
the United Nations and G20 and G7 nations. President Trump chose not to
support the funding of an initiative launched in April 2020 aimed at developing
pharmaceuticals to prevent, diagnose, and treat the disease and to ensure that
countries had equal access to products. WHO was accused of colluding with
China, had its U.S. funding suspended, and was urged to fire its head—all in the
midst of the pandemic and before any investigations.
Conclusions
Ambiguous, fragmented federalism; complex and often competitive intergovern-
mental relations; and inadequate state/local capacity are a challenge to any
governance system. COVID-19 is a stress test of federalism but before concluding
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that the system failed, it’s necessary to contemplate whether quick, bold, farsighted,
and decisive national action, especially at the crucial beginning of the disaster,
could have adapted to contain and mitigate the health threat to avoid the severity
of problems associated with federalism, leading to better outcomes for people and
economies. Catastrophes test leadership. COVID-19 is a rolling catastrophe of yet
unknown duration and unsettled detection, treatment, and cure that exceeds state/
local capacities. National action impacts state/local disaster response success
regardless of the confines of the Tenth Amendment. The national government can
build state and local government capacity for executing their powerful police
powers and help to decrease interjurisdictional competition.
President Trump had extensive powers and statutory authorities to lead a
national effort and undertake the necessary coordinative functions to stop the
march of the virus—he had choices to make but it was his “legal responsibility”
and not his option to choose to avoid the leadership role for fighting COVID-19.
The states were not supposed to be in charge. If President Trump’s decisions were
made in different ways that were quick and decisive, the virus-response likely
would have been more effective. He was not constrained in his ability to act by
limits on federal power. Different actions early in preparing for and responding to
COVID-19 likely would have overcome many of the inadequate capacity and
interjurisdictional competition problems that hampered the work of states and
their local governments.
No one person or organization was prepared for COVID-19. Its onslaught
exposed faults in nearly all of society’s systems—medical; economic; government;
safety net; logistics; communications; etc. Each may also spur innovations and
solutions. Government’s performance is just one part of human failure, but its
primary role is to protect life. Preparing for a pandemic and a successful initial
response is critical. The toughest decisions and challenges are yet to come as both
public health and economic recovery and rebuilding must be balanced.
This article reviewed common expectations of a leader fighting a war against a
silent enemy, to use President’s Trump’s language. These include:
•Early, decisive, and effective action within the bounds of legal authority.
•Consistency in words and actions.
•Use of facts to create credibility and trust.
•Respect for expertise, evidence-based decision-making, and detail.
•Leading by example, which boosts morale and voluntary compliance.
•Acceptance of responsibility and avoidance of unsupported blaming of others.
•Avoidance of excessive partisanship.
•Acceptance of oversight and transparency.
•Collaborative relationships within the national executive branch, with state/local
governments, other sectors, and the international community.
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President Trump denied the scope, seriousness, and lethality of COVID-19 in his
public presentations. He ignored warnings regarding the threat. He knew the facts
but was not truthful with the American people. Despite laws placing responsibility
on him to undertake leadership of a national response and to coordinate all
relevant actors, President Trump chose to let governors and local officials be most
responsible for life and death decision-making, testing strategies, procurement of
supplies, re-opening of schools and economies without clear guidance, and he had
no coherent plan for vaccine distribution or equity concerns. Distrusting segments
of the population challenged expert advice and state actions. Governors received
reluctant help from a president holding enormous authority and resources in
overcoming the inherent fragmentation of the intergovernmental system and the
lack of subnational capacity.
The “who’s in charge” question related to a pandemic is answered not simply by
looking to the Tenth Amendment or Commerce Clause; instead, the full statutory
powers and authority of the national executive branch must be taken into
consideration. Federalism is not the issue; instead it’s taking bold, decisive national
action. Recent studies support this conclusion. The Lancet Commission recently
concluded that the United States could have averted 40 percent of its pandemic
deaths had President Trump made different choices. Columbia University’s
National Center for Disease Preparedness suggested 130,000–210,000 fewer deaths
early in the pandemic if there had been stronger national action (Redlener et al.
2020).
Note
The author appreciates and thanks Publius editor John Dinan for help in
reorganizing the original submission and careful editing, which improved the
article immensely. Thanks, also, to four anonymous reviewers for their time and
comments.
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