American Federalism: The Case of Coronavirus

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.

Congress: Hitched to the Status Quo

To lead is to be out in front, pointing the jet’s nose one way rather than another. Leadership is not that which causes drag at the back of the plane. Leadership is not that which holds a society in place or protects the vested interests. Whether envisioning something new or a return to a better time, a leader is not oriented to the status quo. It is significant, therefore, that the Minority Leader of the U.S. House of Representatives, one of the two chambers in the American Congress, has stated publicly that the Congress is rigged to advantage the status quo. The stunning implication is that members of Congress are actually anti-leaders.

In an interview in 2013, Nancy Pelosi admitted, “This is an environment that is almost rigged, intentionally or not, wittingly or not, rigged so that the status quo just goes on.”[1] This amazing line can be read as confirmation that the fears of some of the American Founders has come true—namely, that the U.S. House would itself become an aristocratic body rivaling the U.S. Senate. With just 435 representatives for over 310 million people, George Washington’s plea on the last day of the Constitutional Convention that a minimum of 30,000 rather than 20,000 in a district would not be sufficiently democratic sounds trite, even antiquarian. With so few representatives relative to the total population, the U.S. House could not help but be aristocratic, each member being like a magnet to huge “gifts” from vested interests. “We have to kick open the door and make our own environment” in the Congress, Pelosi urged, “reduce the role of money [in campaigns], insist on the civility of debates, and bring more women here, and that’s a better reflection of our country.” In painting this picture for us, the Minority Leader was indeed leading, for she was intrepidly venturing out beyond the status quo. Nevertheless, the thrust of leadership is not always enough to counter the gravity of the vested interests grounded in the status quo.

For example, as long as so few representatives hold such power, the money of the vested interests will inevitably find its way to the campaigns and the Congressional bills will continue to be written by the vested interests themselves. In approaching this problem systemically, more is needed. One possibility is to sift the E.U.’s lower legislative chamber for possible solutions. 

The U.S. House of Representatives (top) and the European Parliament (bottom). 

At the beginning of 2012, European Parliament had a maximum of 751 representatives to cover a population of about 504 million, which works out to an average of 671,105 people in a district. Meanwhile, the U.S. House had 435 representatives to cover a population of about 313 million, which corresponds to an average of 719,540 people in a district. The difference is 48,435 people per district. To get down to 671,105 people per district, the U.S. House would need to add 31 seats. Were the House to have 751 representatives, the average number of people in a district would be 416,777. While more democratic than districts with an average population of 719,540, neither figure comes close to satisfying George Washington’s objection that 30,000 people in a given district is not sufficiently democratic (i.e., too many constituents for a given representative).

Therefore, in addition to increasing the number of seats—with the knowledge that 751 in a chamber can work—further reduction in the centralized power would be needed to reduce the money magnet’s power. One option would be returning more domestic policy areas to the state legislatures. At the time of Pelosi’s statement, the U.S. states had 7,382 state legislators altogether. [2] Spreading around additional powers, taken from the Congress, to so many more representatives would not only make American federalism more democratic, but also open up possibilities for real change beyond the grasp of the status quo. As a few examples even without the additional power, some states had legalized gay marriage, two had legalized pot, and one had achieved universal health-insurance. Admittedly, the status quo has a greater grip in some states (e.g., Kansas) than others (e.g., California). However, spreading out governmental power could perhaps be sufficient to give leadership a chance to outpace the moneyed interests in the status quo.     

1. Laura Bassett, “Nancy Pelosi: Congress Is ‘Rigged’ to Maintain the Status Quo,” The Huffington Post, June 5, 2013.

2. National Conference of State Legislatures, “Sizes of Legislatures,” 2013.

The Euroskeptic Ideology: Inherently Exogenous to the E.U.

At the root of the matter of Britain's secession from the Union, I submit, is a starkly Euro-skeptic, or Anti-federalist, ideology that viewed the E.U. as a network to which the sovereign state of Britain belongs, as PM David Cameron said before the secession referendum. Unfortunately, this view ran up against the reality of the E.U.'s federal system in which the federal level too had some sovereignty. Even the mechanism of qualified majority voting involves a loss of sovereignty for the state governments. The discordance can be heard in a speech given by William Hague of the British government at the end of May in 2013 in which he advocated that state legislatures should be able to block E.U. laws proposed by the European Commission.[1] At the time, a state legislature could use a “yellow card” to object to a proposal that could presumably be better legislated and enforced at the state level. Hague wanted a “red card” option that a state legislature could use to block legislation. This proposal reflects the Nullification Acts passed by the government of South Carolina in the early 1830s, which prompted the U.S. to resist strongly as the union itself could have unraveled. Aside from the exogenous ideology itself in the E.U., two problems with Hague’s proposal can be identified. I contend that the problems stem from, and thus can point to, the underlying ideology that is inherently at odds with modern federalism, in which dual-sovereignty is a prominent attribute.

Should the state legislatures dominate the EU's legislature?  The British state government says yes. Would the Union wither and die?  (Source: mapperywordpress.com)

Presumably, such a card from just one of the 27 state legislatures could block a proposal. It would be difficult to imagine virtually any law surviving at the E.U. level. Why then have the E.U. at all then? If every state can pick and choose among federal laws, what force would any federal law have on the state level, given that only the enforcement would only be in states in favor of the law? Without any binding force on the states, the federal level cannot act as a check on abuses of power at the state level. This function of federalism would be limited to the states checking the federal government. 

Secondly, Hague was assuming that the European Parliament was not democratic at all, whereas the state legislatures were fully so. However, the members of the European Parliament are directly elected by EU citizens. The representatives represent those constituents rather than states (or state governments). Perhaps the direct representation, which leaves out the state government officials, is why Hague proposed to have the state legislatures essentially replace the European Parliament. To be sure, the legislative districts at the state level are smaller and thus more democratic in this respect, but this point does not render federal legislative bodies like the European Parliament and the U.S. House of Representatives non-democratic. In fact, giving the E.U. voters a direct say at the federal level through their respective representatives is a necessary feature of modern federalism because in it the federal level has at least some sovereignty that does not reduce to that of the states. Put another way, Europeans in the E.U.. are citizens both of their states and the E.U. Accordingly, the people have a right to be represented in both governmental systems--that of the states and the Union. 

1. “William Hague Demands Right to Show ‘Red Card’ to European Union,” The Huffington Post, May 31, 2013.

Federalism and the Democratic Deficit: The E.U. as Suboptimal?

One major criticism of the E.U. has concerned its “democratic deficit.” The European Commission, the E.U.’s executive branch, has taken most of the criticism because the bureaucrats are not elected. Even though the European Council consists of elected state executives, the state legislatures are viewed as “closer to the people” and therefore more democratic. At the E.U. level, the European Parliament is the most directly democratic, as the EP’s representatives are directly elected by E.U. citizens. Therefore, one means of reducing the “democratic deficit” has been to increase the Parliament’s authority relative to those of the Commission and the Council. Lest it be thought that this solution has no drawbacks, the case of whether E.U. ships should be permitted to be beached for recycling in South Asia illustrates a problem.

Beaching old ships for recycling in South Asia is cheaper but can result in leaks of toxic chemicals. Image Source: Agence France-Presse/Getty Images

Facing pressure from South Asian governments, the E.U. state leaders on the European Council opposed a ban on beaching over the objections of environmental groups. Facing a different political dynamic, the European Parliament favored the ban. After weeks of negotiations, the parliament and council agreed to a compromise. Beaching a ship would be allowed as long as “fixed structures” are involved. As this wording is notoriously open to interpretation, clarity was sacrificed for the sake of a compromise.[1]

Interpretation may not even be necessary, as the E.U. has no language in the compromise to prevent ships from changing their flags, Patrizia Heidegger of the NGO Shipbreaking Platform observed. “So the stronger language won’t mean much,” she added.[2] The compromise looks a bit like Swiss cheese. Lest this flaw be attributed solely to politics, that the Council had to negotiate with the Parliament on the matter means that the solution to the “democratic deficit” is at least partly to blame. That is to say, public policy can suffer from efforts to reduce the deficit.

Of course, that the E.U. consists both of states and citizens means that the Council and Parliament both have vital roles in the E.U.’s government aside from the issue of democracy in a federal system. So public policy being diluted in the negotiation process is also a necessary part of having a federal union of states with direct effect. Even if no “democratic deficit” existed, in other words, the involvement of both the Council and the Parliament, and thus the negotiation, would be on firm ground. Even so, this “cost” of having a federal union can be minimized by the principle of subsidiarity, wherein legislation is to be accomplished at the lowest governmental level possible. In the case of the U.S., the problem of “lowest common denominator” federal legislation can in principle be mitigated by the fact that Congress’s powers are enumerated, and thus limited, with the residual sovereignty residing with the state governments. The problem is thus when too much legislation occurs at the federal level, whether in the E.U. or U.S.

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1. Costas Paris, “EU Won’t Ban Ship Recycling on Asian Beaches,” The Wall Street Journal, June 26, 2013.

2. Ibid.

Britain Bucks E.U. Bonus Caps for Bankers

Not long after the passage of an E.U. law limiting bonuses for bankers in the E.U., one state government (the usual suspect) filed a lawsuit in federal court (the ECJ) to contest the new law before it even went into effect. Perhaps it could have been said that 'banker-bonus caps is to Britain as "Obamacare" is to Texas.' Although federal overreach was an element in both complaints, we can still ask what was the true basis of Britain's suit.

It would make sense that Britain might point to a trend of lower compensation since a peak in 2007. In plain words, Britain's attorney could justifiably have argued the new law was no longer necessary as the excessive bonuses had already been tapering off from a peak.

Providing its “bare bones” legal basis, Britain claims in the filing that the law is unconstitutional because it would push “bankers’ fix pay up rather than down, which will make banks themselves riskier rather than safer.”[1] The law “is not fit for purpose,” according to a state official, which is to say that the results of the legislation could already be anticipated to contravene rather than advance the law’s own purpose.

The European principle of proportionality means that federal law must be in keeping with the aim pursued. The purpose of this principle is to restrict the power of the federal level. Together with the subsidiarity principle, the intention is to protect state governments from excessive federal encroachment. The U.S. has a comparable feature in the Tenth Amendment. As of 2013, it was still an open question whether the principles of proportionality and subsidiarity would eventually be jurisprudentially sidelined as the Tenth Amendment had been in the U.S. since 1865. The state of Britain would have had good reason to contest any federal overreach in order to keep the E.U. from sailing through a federal balance on the way to consolidation.

Lest it be concluded that the concerns in the British government pertained mostly to protecting the system of federalism, “many [people] in London’s financial district . . . harshly criticized the bonus cap, arguing that it would harm the competitiveness of the city and [the E.U.] as a whole.”[2] It is feasible that “the city” was in the driver’s seat, with the government happily going along as a sort of front hiding the raw, self-serving greed of a private interest. To be sure, the “states’ rights” agenda was undoubtedly in the mix—Britain being the South Carolina of the E.U. However, whereas the South Carolina legislature had passed a law nullifying any federal law not in South Carolina’s interest, the Britain legislature decided it would “impose the cap because it was obliged to do so under [E.U.] law.”[3]

One implication is particularly important. That the House of Commons recognized that even a contested federal law is nonetheless binding on Britain and its legislature is also a recognition, even if tacit, that the atom of governmental sovereignty had indeed been split; rather than being a confederal alliance such as the U.S.’s Articles of Confederation (1781-1789), the E.U. was even by 2013 a federal government—the most salient attribute of modern federalism being dual sovereignty.[4]

The point being typically missed, it bears repeating. In acknowledging that the British government, as a state government (formerly “host kingdom” in the British Empire), is bound by E.U. laws even if they run contrary to Britain’s interests (e.g., undercutting London’s competitiveness), that government cannot then turn around and argue that the E.U. is one of the networks to which Britain just happens to belong. Nor could Britain claim that the E.U. is a mere confederation, wherein sovereignty remains with the members. In other words, by the definitions and a bit of logic, the implication is that Britain was at the time not a member of, but, rather, a state in the E.U. That's quite a bonus.

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[1] Julia Werdigier, “Britain Sues to Stop Cap on Bonuses for Bankers,” The New York Times, September 25, 2013.

[2] Ibid.

[3] Ibid.

[4] Kenneth C. Wheare, Federal Government (Oxford: Oxford University Press, 1970).

Subsidiarity: Federalism Over Catholic Social Ethics?

In the E.U., the principle of subsidiarity functions in theory like the Tenth Amendment does in the U.S.—again in theory. In both cases, public authority on a given domain or policy-area is preferentially to be exercised at the state rather than federal level. The principle, while not federalism per se, can be an element of it. Taking subsidiarity to be “really federalism” turns the latter into an alliance—giving the states potentially so much power that the government of the federation or union itself cannot act as a check on the state governments.

The complete essay is at Essays on Two Federal Empires.