Document Type
Article
Publication Date
6-29-2022
Abstract
The COVID-19 pandemic created an unprecedented need for governance by a multiplicity of authorities. The nature of the pandemic—globally communicable, uncontrolled, and initially mysterious—required a coordinated response to a common problem. But the pandemic was superimposed atop our decentralized domestic and international governance structures, and the result was devastating: the United States has a death rate that is eighteenth highest in the world, and the pandemic has had dramatically unequal impacts across the country. COVID-19’s effects have been particularly destructive for communities of color, women, and intersectional populations.
This Article finds order in the chaos of the pandemic response by distilling a typology for the predominant intergovernmental relationships that emerged. Two of these behaviors describe intergovernmental conflict. Governments undermined each other by destabilizing and criticizing each other’s actions. They did so at all levels: up (when local governments undermined states), down (when the federal government undermined states), and across (when the federal government undermined itself). Governments abdicated responsibility when they failed to act. Two additional behaviors describe intergovernmental coordination. Governments collaborated when they actively worked together, both vertically and horizontally, to harmonize their policies. And they engaged in bandwagoning when they avoided taking initiative in making pandemic policy, opting instead to follow the leads of others.
We argue that these behaviors were the predictable result of well-worn structural and political dynamics. Structurally, pandemic policy lies uncomfortably on two poles of the federal-state division of responsibilities. Ambiguous hierarchies and overlapping roles pushed governments toward conflict rather than coordination. Politically, intense partisanship transformed nearly every governance decision into symbolic, two-sided national battles. These battles provided a default set of relationships that became organizing principles for the pandemic response. We use these insights to sketch the contours of a way forward. To address the role confusion that arose from our multi-sovereigned system of governance, we propose a federal pandemic statute that emphasizes and balances role clarity, state independence, and explicit governmental action that disrupts inequality. To lessen the pull of partisanship, we advocate for the creation of decentralized but inclusive subject-matter networks among international, federal, state, and local authorities.
Keywords
Covid, pandemic, federalism, health, local government, state government, international law, governance
Publication Title
Boston College Law Review
Repository Citation
63 B.C. L. Rev. 1949 (2022).
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American Politics Commons, Health Law and Policy Commons, Health Policy Commons, Public Law and Legal Theory Commons, Public Policy Commons, State and Local Government Law Commons