About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline

23 N.Y.U. J. Legis. & Pub. Pol'y 1 (2020-2021)
The COVID-19 Pandemic and Federalism: Who Decides?

handle is hein.journals/nyulpp23 and id is 7 raw text is: THE COVID-19 PANDEMIC AND
Nancy J. Knauer*
The COVID-19 pandemic is an unprecedented public health crisis that has
prompted an unprecedented response. Drastic and previously unthinkable
steps have been taken to flatten the curve and avoid overwhelming our
health systems. In the absence of a coordinated national response to the
crisis, the pandemic has underscored both the promise and limits of the
Tenth Amendment. As state and local actors have scrambled to adopt poli-
cies to protect their residents and minimize the loss of life, the result has
been a patchwork of advisories and orders that reveal stark regional dis-
parities and some confounding inconsistencies. The reliance on state and
local actors has produced many innovative programs and novel attempts at
regional coordination, but has also led to direct competition between and
among jurisdictions as they vie for desperately needed resources. Moreover,
it has elevated the friction between the federal government and state and
local leaders to alarming levels.
This Article examines the role of federalism in the early days of the COVID-
19 pandemic in the United States. It explores the dangers that arise when
disaster relief is politicized and proposes failsafe mechanisms to prevent key
institutions from abdicating their responsibility to the American people. The
first section reviews our current preparedness and response policy, which is
grounded on a strong vision of cooperative federalism where a response is
federally supported, state managed, and locally executed. The second sec-
tion uses the lens of comparative institutional analysis to evaluate the short-
comings of this approach, specifically in the context of pandemic planning.
By addressing three core institutional considerations-competency, politi-
cal responsiveness, and stability-this Article maps out potential gaps that
have the potential to compromise response efforts. The third section dis-
cusses failsafe provisions to ensure that disaster relief does not fall victim to
partisan wrangling. A brief conclusion notes that the reliance on state and
local actors in this pandemic has been a pragmatic, but also imperfect,
institutional choice because state and local level initiatives are by their na-
ture partial and porous. They are necessarily hampered by the lack of uni-
formity and certainty that could come from a federal pandemic response,
* Sheller Professor of Public Interest Law and Director of Law and Public Policy
Programs, Temple University, Beasley School of Law. I would like to thank Lily V.
Bernadel, Temple Law Class of 2022, for her excellent research and editing assis-
tance. The COVID-19 pandemic presents dynamic and ever-changing challenges. The
observations in this Article are based on the chaotic events of the early days of the
pandemic through mid-May 2020 when some of the states started to reopen. A brief
Epilogue provides an update on the status of the pandemic as this Article goes to

Imancrl  nith P.rmi-i-n of N1 V I I Inlirnal of I -il-ti-n -A Piiblir Pnli,

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.

Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Contact us for annual subscription options:

Already a HeinOnline Subscriber?

profiles profiles most