Many scholars have argued that US democracy has been slowly decaying, exemplified most recently by the election of Donald Trump. “Trump has openly derided many of the core institutions of democratic governance: the independent press, the judiciary, the bureaucracy, the validity of elections, the legitimacy of democratic contestation and opposition, and the centrality of facts to political discourse,” write Robert Lieberman and coauthors.1Robert Lieberman et al., “The Trump Presidency and American Democracy: A Historical and Comparative Analysis,” Perspectives on Politics 17, no. 2 (2019): 470–479. Since the election of Joe Biden, Trump has cried voter fraud despite the lack of evidence and has refused to concede.“The current state of US democracy raises the question of the place of federalism given the dominance of national issues.”
Donald Trump’s presidency has exacerbated the nationalization of politics in the United States. The current state of US democracy raises the question of the place of federalism given the dominance of national issues. Federalism is the type of government in which regional governments and a central government share power, both having their own spheres of responsibility and checks and balances on one another. When discussing the nationalization of politics, Michael Barbaro of The Daily summarizes its effect stating, “the nationalization of American politics is kind of the death knell for the governor as the go-to figure in our politics.” However, the Trump administration’s lackluster action on Covid-19 may give federalism a new life.
State governors have had to step up and act independently to address the current pandemic, taking measures, such as executive orders, to protect their constituents. Could this incipient revitalization of federalism be key to preventing democratic backsliding in the United States? I argue that the Covid-19 responses by various state governments strengthen US federalism, which will in turn create new opportunities to bolster US democracy. Federalism allows for a local government to tackle issues that may not be suitable for the federal government. The increased action occurring in state governments will allow states to exercise the ability to check federal government policies. Meanwhile, local governments and politicians oversee a jurisdiction that is closer to their constituents, giving citizens easier access to political participation than the federal government. If the strengthening of federalism results in increased participation due to this greater opportunity for access, then it may bolster US democracy
President Trump’s response to Covid-19 has been inconsistent. Trump has blamed public health officials’ recommendations for attempting to hurt the economy and his reelection campaign. Alex Burns states, “when you have a national scale crisis, typically it is the president who people hear from every day about the threat that is coming into their homes and their neighborhoods and what their government is going to be doing to help protect them. That’s not happening here from the White House.” This is why the governors stepped in.“The decisions of state governments are becoming increasingly relevant, as is their ability to wield power, allowing for greater checks and resistance to the federal government instead of a more nationalized system seen before Covid-19.”
By April 3, 16 state governors had declared some form of lockdown without instruction from the White House. Americans are looking less at the President for guidance than their governors, changing the balance of federal and state power. In July, 7 out of 10 Americans claimed they trusted their governors more than President Trump, including over half of Republicans. The lack of guidance from the White House in the early months of Covid-19 in the United States forced state governments to create stay-at-home mandates, social distancing guidelines, unemployment relief, and mask regulations themselves. These state mandates influence the everyday life of constituents, who are no longer going to work, out to eat, and are even isolated from family and friends. Seeing the power of the state regulating everyday life is reinvigorating the powers vested in state governments, therefore reinforcing the US power sharing structure that is federalism. These new state-level Covid-19 mandates are a larger exercise of state power than seen in decades before, at times directly contradicting the sentiments of the president. The decisions of state governments are becoming increasingly relevant, as is their ability to wield power, allowing for greater checks and resistance to the federal government instead of a more nationalized system seen before Covid-19. Though prevalent in the late twentieth century, state-level politics and politicians have been on the backburner in recent years. Every president elected between 1976 and 2004 has been a former governor with the exception of George H. W. Bush. Many controversial issues facing the country at that time were predominantly dealt with at the state level (such as budgets, education, and abortion rights), allowing candidates to campaign their state-level accomplishments. Around 2008 the US political climate changed, as major federal issues, such as the Iraq War and financial crises, took precedence over others, dominating the media and shifting focus from state to federal politics.
In 2019, Trump declared a national emergency to build a wall along the Mexican border. This emergency declaration was in response to Congress not approving the $5.7 billion budget Trump asked for, and it freed up $8 billion that Congress allocated to the Treasury drug forfeiture fund, to counter drug activities, and the military construction fund. The power of the purse is a textbook check of the legislative branch on the executive, one which Trump weakened by invoking an emergency declaration to use funds for a border wall, which were allocated from other departments despite there not being an emergency. When identifying the main forms of democratic backsliding, Nancy Bermeo defines the term executive aggrandizement as “when elected executives weaken checks on executive power one by one, undertaking a series of institutional changes that hamper the power of opposition forces to challenge executive preferences.”2Nancy Bermeo, “On Democratic Backsliding,” Journal of Democracy 27, no. 1 (2016): 5–19. This form of democratic erosion is clear in the United States, one example being Trump’s emergency declaration. The nationalization of politics centers the power of the federal government, allowing forms of democratic erosion such as executive aggrandizement to occur.
Federalism could be a key to preventing democratic erosion. A leading scholar on federalism, Heather Gerken writes, “the state and local level can influence policy simply by refusing to partner with the federal government.”3Heather K. Gerken, “The Loyal Opposition,” Yale Law Journal 123, no. 6 (2014). An example of federalism at work is the 287(g) program. This program allows agreements to be made between the Department of Homeland Security and state and local police departments for the latter to act as immigration officers and enforce federal immigration policies. This is a clear example of the federal government’s need for states’ help in enacting policy. If states or other local governments find federal immigration policy to be too harsh, they can simply refuse to partake in the 287(g) program, preventing the federal policies from actually happening. We have seen this pushback happen in “sanctuary cities,” which are cities that chose to limit cooperation with the federal government regarding immigration. For example, in Chicago, when Trump threatened mass deportation and raids in 2019, Mayor Lori Lightfoot directed her police to not cooperate with ICE and ordered them to cut off access to parts of the city’s police database. By strengthening states’ power, executive aggrandizement, a clear symptom of democratic erosion in the United States, can be hindered.“California was among the first states to recognize the severity of the pandemic and issue lockdown orders, later to be followed by many other states, despite the lack of orders from the federal government.”
So how can Covid-19 change the shape of modern federalism? States can bolster federalism and defy the federal government through the application of what is known as state-level regulatory spillover, i.e., when a state makes a regulation that affects nearby states.4Heather Gerken, “We’re about to See States’ Rights Used Defensively against Trump,” Vox December 12, 2016. California is a particularly important state due to its large population and economy. Governor Gavin Newsom was “one of the first big state governors to issue what we now think of as a lockdown order.” Similarly, California was among the first states to recognize the severity of the pandemic and issue lockdown orders, later to be followed by many other states, despite the lack of orders from the federal government. The subsequent lockdowns and travel restrictions invoked by some states during Covid-19 impacted travel around the country, an example of spillover.
Another effect of state-level regulatory spillover is that it allows states to “set the agenda” for the federal government.5Jessica Bulman-Pozen and Heather K. Gerken, “Uncooperative Federalism,” Yale Law Journal 118, no. 7 (2009): 1256–1310. An issue affecting one state is easy for the federal government to avoid acting upon compared to issues affecting multiple states. In addition, states frustrated by other states’ regulations will look to federal policymakers to address the issue. For example, when California imposed stricter environmental regulations, it affected the auto industry in Michigan, as they were not complying with these California regulations but could not afford to lose the California market. Due to these regulations, businessmen and politicians from Michigan asked the federal government to help resolve the issue, thrusting these environmental regulations onto the national agenda. If the federal government attempts to ignore an issue due to special interests, partisanship, or other less than democratic barriers, state spillover offers solutions. State-level regulatory spillover federalism can be used to safeguard democracy, as they allow states to have a larger influence beyond their own state and can put important issues in the federal government’s agenda. Perhaps, as federalism strengthens due to the pandemic, an increase in state-level regulatory spillovers will occur as well.
While the Covid-19 pandemic is tragic, it has created a rather interesting opportunity to observe federalism in practice in the United States. By establishing mandates and lockdown orders without guidance from the federal government, state governments are flexing more power than they did before the pandemic, enforcing a check on executive power. With this increase in federalism, new opportunities may arise to counter an overbearing federal government and overturn undemocratic measures, like Trump’s attempts to flout the election’s results or a rushed Covid-19 vaccine. The pandemic has forced states and other local governments to make important decisions that are closely judged by their constituents unlike before, resulting in an increase in state autonomy and therefore increasing federalism, a key to prevent democratic erosion.
Banner photo: Governor Phil Murphy/Flickr.