(Bloomberg Opinion) -- Yesterday, six governors from a string of contiguous eastern seaboard states stretching from Rhode Island to Delaware announced that they would form a working group to cooperate on reopening businesses in the region. This kind of state-level coordination is much needed. The federal government hasn’t taken the lead in ordering coronavirus lockdowns, and so it won’t take the lead in reopening economies.
But the composition of the working group is also a little worrisome — because it reveals the potential effects of partisan politics in efforts to fight Covid-19. The original group included Connecticut, New York, New Jersey and Pennsylvania in addition to Rhode Island and Delaware. But why weren’t Massachusetts and New Hampshire to the immediate north initially included, or Maryland to the immediate south? What about Vermont, which adjoins New York, or Ohio and West Virginia, which adjoin Pennsylvania? It’s not because they don’t share common challenges and interests in fighting the coronavirus.
It’s hard to avoid the conclusion that it’s because the initially excluded states all have Republican governors. The six states in the original working group all have Democratic governors. (Three West coast states that formed their own regional group also all have Democratic governors, and Massachusetts, which subsequently joined the East Coast coalition, has a governor — Charlie Baker — who is effectively a Republican in name only.)
Coordination — and by extension, non-coordination — seems likely to have been at least somewhat shaped by partisanship.
The place to begin making sense of this extremely strange situation is the peculiar system of U.S. federalism. In nearly all countries, central government authorities are understood to be the right actors to address crises that cross internal borders. It is a quirk of the late 18th century that the U.S. system reserves to the states what constitutional lawyers call “police powers,” including ordering public health and safety measures like stay-in-place orders and quarantines.
Under the U.S. Constitution as it’s been interpreted for the last 70-plus years, Congress does have the constitutional authority to take public health measures. But Congress hasn’t fully exercised that authority by enacting legislation that would allow the CDC or some other part of the executive branch to order in-state shutdowns or block the uninfected from traveling between states.
The upshot is that, although President Donald Trump could be doing a lot more than he is to guide the pandemic response at the national level, he doesn’t have the power to order lockdowns. He may claim that his power over reopening is “total,” but the truth is that his “decision” will basically take the form of advice to the states, not a genuine order.
This brings us back to the East Coast working group. I’m not faulting the members for excluding other states, because I don’t know how that happened. It seems entirely possible that Republican governors were invited to join and declined; or maybe they weren’t invited at all.
Nor is it the fault of the working group if its members have united in order to seek political cover from the Trump administration. The Democratic governors all know they will have to deal with Donald Trump’s reactions whatever decisions they make, and there is safety in numbers. Trump has repeatedly shown his willingness to single out Democratic governors for criticism and attack. If there’s a partisan problem here, Trump deserves most of the blame for starting it.
Yet it’s nevertheless more than a little concerning for our republic — and our health — that what will determine coordination among these specific contiguous states may be the fact that they have Democratic governors, whereas adjoining states don’t. It would be genuinely weird if these states, for example, stopped social distancing efforts while adjoining states didn’t — or vice versa.
Collaborations among groups of states are not unknown. There’s even a formal mechanism called an “interstate compact” that facilitates regional agreements. Interstate compacts are constitutional provided they get congressional approval, provided they don’t affect a power delegated to the federal system. They’re usually used to clarify borders, create joint study commissions, or establish common regulatory schemes.
What’s distinctive about the East Coast working group is that so far it isn’t regulatory. It’s a coordination mechanism based on potential common interests that may turn out to be as much political as public-health driven. There’s no distinctive public health interest that affects Delaware but not Maryland, Connecticut but not Vermont.
Federalism is to blame here. It’s all well and good to sing the praises of state-based diversity or to imagine the states as laboratories of democracy. But the bottom line is that a national problem like an epidemic requires a nationally coordinated solution. Even regional public health problems need genuinely regional solutions, not solutions that vary from state to state based on who happens to be governor.
For the moment, there is no way around this problem. Given our constitutional framework and our hyper-partisan president, it makes sense for states to make common cause. But it’s worth keeping a careful eye on the political struggle that’s coming over reopening businesses. In the long run, perhaps Congress should think about strengthening executive power over pandemic situations — and maybe making the exercise of that power mandatory for the president, not just optional.
This column does not necessarily reflect the opinion of Bloomberg LP and its owners.
Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”
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