From time to time, states must confront emergencies that require a national response, including wars, famines, natural disasters, and pandemics. Is it possible that the very structure of a country can inhibit its response to a national emergency?
The case can be made that the nature of federalism in the United States was one reason for its unwieldy response to the COVID-19 crisis, because it precluded centralized action. In a piece at The Atlantic, Lawrence Gotsin and Sarah Wetter write that:
“Constitutional authority for ordering major public-health interventions, such as mass quarantines and physical distancing, lies primarily with U.S. states and localities via their “police powers”—a drastic difference from the national authorities of countries such as China and Italy.”
While China and Italy are unitary states—states where most power resides in the central government—federal states can also react in efficient, nationally-oriented ways to emergencies that demand a national, not local, response.
In the United States, it is dubious whether the federal government could order a nation-wide quarantine or mask-wearing policy. This is not to suggest the federal government is totally powerless. There are several constitutional powers, and statutes, such as the Public Health Service Act of 1944 (42 U.S.C. § 264), that give the federal government the power to quarantine persons arriving at U.S. borders, and in the case of 42 U.S.C. § 264, the power “to apprehend, detain, and examine certain infected persons who are peculiarly likely to cause the interstate spread of disease or, in time of war, to infect the military forces or war workers.” However, in general, police powers, including the power of quarantine, are the province of the states as per the 10th Amendment of the U.S. Constitution:
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
U.S case law has consistently held that “the regulation of health and safety matters is primarily, and historically, a matter of local concern,” and that states “traditionally have had great latitude under their police powers to legislate as to the protection of the lives, limbs, health, comfort, and quiet of all persons.” Therefore, it is difficult for the federal government to implement nationwide quarantine standards, which can be problematic in dealing with a swiftly-spreading, airborne virus such as COVID-19.
The 10th Amendment reserves powers to the states that are not delegated to the federal government. In a federal system, what alternative arrangements are possible? Consider the Republic of India, which is a large, multi-state, federal democracy like the United States. The Seventh Schedule of the Indian Constitution divides the power to legislate into three lists: the Union (central) List, State List and Concurrent List (matters that could be legislated by both the federal and state governments). Both the state and union governments of India can legislate on matters found in the concurrent list, including the “prevention of the extension from one State to another of infectious or contagious diseases or pests affecting men, animals or plants.”
Unlike the 10th Amendment in the U.S. Constitution, Article 248 of the Indian Constitution states that “parliament has exclusive power to make any law with respect to any matter not enumerated in the Concurrent List or State List.” When a matter such as the prevention of contagious disease is described in the Concurrent List, the central government usually gets the final say over state governments in a legislative sense because of another provision in the Indian Constitution, Article 254(1):
“(1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause ( 2 ), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.”
These constitutional provisions allowed the central government in India to impose a national lockdown, from March to June, to fight COVID-19. Additionally, the Indian government’s Disaster Management Act of 2005 (DMA), which was passed in the aftermath of the 2004 Indian Ocean tsunami, allows the central government to take over health and law and order issues that are usually the prerogative of the states.
This is not to suggest that India managed its COVID-19 crisis nearly as well as many other countries, such as South Korea, Singapore, and Germany. Nonetheless, its federal structure gave it the power to take national measures to impose public safety measures that were impossible in the United States because of the federal structure there.
Many former British colonies, including India and Canada, emulated aspects of the U.S. Constitution, including federalism, but also learned from its perceived pitfalls, particularly the division between state and federal powers. In India, state powers were more clearly enumerated, and residual powers are left with the central government, allowing it to respond to emergencies with a national strategy if needed. Such a federal system allows local governments to respond to local emergencies without an order from the federal government. This would be impossible in a centralized country like Japan, where the governors of prefectures and metropolises in Japan could not declare localized states of emergencies.
A comparison of the American and Indian models of federalism demonstrates that federalism need not be a hindrance in implementing national emergency-relief strategies during a pandemic. However, some of the downsides of the U.S. model of federalism, especially the limits of the 10th Amendment, are evident. This suggests that in an ideal constitution, certain allowances should be made in favor of central governments of federal states during times of emergencies and on matters of national import.
Author Biography: Akhilesh (Akhi) Pillalamarri is the Moderator-in-Chief of the International Law Society’s International Law and Policy Brief (ILPB) at The George Washington University Law School. He has a Master of Arts in Security Studies with a concentration in International Security from Georgetown University, and worked as an international relations journalist before attending law school. His interests include international law, comparative law, national security law, and intellectual property law. Follow @AkhiPill