Susan Estrich: The newest federalism

Summary: Credit belings to the nation's governors. Left to fend for themselves, ... the governors have put themselves out front in what should be a national war. It has nothing to do with federalism. Donald Trump may be using them as an excuse, but their successes only underscore his failures.

Susan Estrich
Susan Estrich commentary
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It's "federalism time" again in Washington. No, don't get your "Federalist Paper No. 10" (my favorite) out yet. Federalism time rarely involves a serious debate about the balance of power between the federal government and the states, although that is technically what American federalism is about. It's about politics, pure and simple. It's about who gets what -- in this case, tests, masks and ventilators, among other things -- and who gets blamed, the president or the governor. Every time President Donald Trump assigns one of these imperatives to the governors, as he has done repeatedly during the coronavirus pandemic, he covers for himself and sets the states up for blame. Federalism is the cover story for what can't or won't be said. It's the history many of us learned about as children and unlearned as adults: redemptive but wrong.

The constitutional compromise limited federal authority to the enumerated powers, including the power to regulate interstate commerce. All powers not specifically granted to the federal government were reserved for the states. Federal law is supreme -- federalism on one foot.
The Southern politicians who formed the Confederacy framed their cause, and their name, in terms of the rights of states in a less powerful confederacy. The federal government was too strong; it shouldn't have been telling the folks in (fill in the state) what to do. It was a war fought over federalism and if you will have it, which you should not.
The New Deal was big-time federalism. Nobody was for child labor, which then-President Franklin D. Roosevelt sought to prohibit in the wage-hour bill. The anti-Roosevelt federalists weren't for sweatshops; they believed that it was up to states to establish fair labor standards, and that Roosevelt was going to get the feds involved in everything. Federalism does sound better than 11-year-olds working 12-hour days.
The decades-long discussion of civil rights was federalism time. This time, states' rights was the rallying cry for those who opposed the key civil rights legislation passed by Congress, opening up employment and apartment buildings, parks and pools, hotels and restaurants, polling booths and private education to blacks. The National Guard escorted students and buses past protesting state officials. States with a history of discrimination were forced to clear with the Justice Department all changes is districts and elections. Would they leave nothing alone? My favorite case involved a small theme park that was catering exclusively to in-state patrons and employing only in-state workers. It claimed it was exempt from federal anti-discrimination laws. There were a couple theories that might have worked, but the Court's grounds settled the argument. It was the ketchup: The ketchup served with the local burgers traveled in interstate commerce.
In 1981, newly elected President Ronald Reagan came to town and brought with him the New Federalism. I wrote a paper at the time arguing that the new federalism was neither new nor really about federalism. The administration talked the talk: States understand the needs of their citizens better than federal bureaucrats; they should be making the key decisions on education, health care, social services, housing for the needy. Social spending was slashed, leaving the states a wealth of opportunities -- and no money. The real fight wasn't whether the safety net should be maintained by the federal government versus the state government but whether we would have less government as a result. We did.
The states can do/are doing/will do that, President Trump has said time and again, to the chorus of begging governors in the background. Coronavirus testing? The states have that under control. They do, if that means governors are out there trying to make deals with both domestic and foreign manufacturers to buy test kits. And the masks that everyone should be wearing? Front-liners are risking their lives and stitching their own masks between 12-hour shifts, another problem Trump gave the governors, along with the huge problem of ventilators, with Trump telling them that the federal government is "not a shipping clerk."
A federal clerk is the last thing we need. We used to argue that the federal government needed to regulate the environment because emissions don't know when they crossed state lines. Nor does this virus. It's crazy to have states bidding against one another and bidding up the price of life-saving equipment. Why are 50 different governors trying to find foreign companies they can trust? This isn't a case where anyone is objecting to big government; I don't believe the president is trying to kill the blue states on the coast. Nor is anyone against having more ventilators, tests or masks. Let Trump make a deal with Chinese President Xi Jinping. No, this isn't one of those cases where federalism is a cover story for getting rid of the safety net, or stopping the march of integration, or protecting business from regulation.
If he thought he could succeed in running a successful coordinated effort, he would. Too little too late. Too many people are going to die. And who will be to blame?
The good news is that we have seen strong governors emerging as national leaders. New York Gov. Andrew Cuomo, who has become the national antidote to the president (and could easily defeat him), has provided the kind of honest, steady and sober presence that has made him America's Governor. And I have to give a shoutout to my own governor, Gavin Newsom, who was even ahead of Cuomo in ordering residents to stay home. It's not clear why California, the nation's largest state, is not suffering as much as New York; less density is certainly part of it, as well as having cars and freeways instead of subways and trains.
But if there is credit to be given for anything in this disaster, it will belong to the nation's governors. Left to fend for themselves, competing with one another for ventilators and masks, with competing signals from the White House and the doctors as recently as last week, the governors have put themselves out front in what should be a national war. It has nothing to do with federalism. Trump may be using them as an excuse, but their successes only underscore his failures.

Susan Estrich can be reached at

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