On March 22, 2020, during a press
conference on the coronavirus, U.S. Vice President Pence claimed that the
United States is unique in that it has a federal system of public governance.
He overlooked the equivalent case of the European Union even as he stressed an
idea that is the European federal principle of subsidiarity, which means that
decisions and actions that can be taken locally are to be done locally. The
state level is next, followed by the federal level. The theory behind this
principle is that cultural, political, economic, and social diversity that
exists from state to state, especially in an empire-scale federal system such
as the E.U. and U.S., means that one-size-fits-all federal-level decisions may
not be effective everywhere. Pence’s point was that the federal government
would be playing a supportive role so the States get what they need, rather
than playing a pivotal role with the States and localities as instruments of
implementation. I contend that relative to the European Union, the United
States was at the time much less equipped to apply the principle of
subsidiarity to the coronavirus pandemic.
At the time of the press
conference, Washington, New York, and California were the “hot spots” wherein
the virus was relatively pronounced. Even though the European Union had not
only closed its borders, it had also allowed states including Italy, France,
and Germany—the E.U.’s “hot-spots”—to close their respective borders. Lest it
be objected that their American counterparts could not close their borders
practically and even constitutionally, this point suggests that the American
federal system had not taken sufficient account of subsidiarity even in the
constitutional design. Put another way, a sitting vice president emphasized the
principle even as it has insufficiently incorporated into statute and constitutional/basic
law. The implication is that the constitution was flawed or deficient.
The E.U. demonstrates that a
federal system can indeed take subsidiarity into account. Even as the E.U.
itself had its federal borders at the time, its states could maintain their own
even though most of those borders were open. The case of the virus in 2020
shows that in an emergency, federal officials, together with state officials,
could suspend the open-border law.
To be sure, the American states
were not completely without authority to protect themselves as suited their
particular circumstances. The government of California, for instance, put its
40 million residents on lock-down, whereas Arizona, a neighboring state, did
not (as of March 22, 2020) because that state was not then a
“hot-spot.” This is indeed a valuable benefit of federalism. Especially at the
empire-scale (i.e., wherein the states are the size of fully-sovereign, or
unfederalized, states, governmental measures in “hot-spot” states would not
fit, and indeed could be bad for, states in which the virus was present in a
big way. In short, the principle of subsidiarity was present in the American
Constitution.
Unfortunately, it is also evident
that the principle was not sufficiently in the American Constitution because
the States should have been able to close their respective borders within the
U.S. to reduce people entering with the virus and slow down the spread of the
virus into other states. A basis for such state authority on an emergency basis
could be that under normal circumstances, California could stop entering
vehicles to search for plants. Thus, border stations already existed.
Constitutionally, perhaps California’s rationale of keeping agricultural pests
out could be broadened to give the state governments authority to close their
respective borders under emergency circumstances such as a pandemic.
