Federal systems divide power between a federal government and subsidiary state governments. One of the animating purposes of dividing power in this way is to protect individual liberty against the risk of tyranny and authoritarianism that necessarily attends the creation of a new State. In theory, it is the rivalry between federal and state governments that prevents either one from too far invading individual freedoms. By focusing on internal threats, however, liberty-orientated federalism necessarily limits the ability of a nation to respond to external threats. As I have written elsewhere, external threats like the COVID-19 pandemic require swift and coordinated government action. How can this be achieved in an internally divided federal system? Must the federally divided nation “fall”, to use Aesop’s phrase, or can federal divisions be maintained while responding to a crisis of the magnitude of the present pandemic?
In this post, I will consider how two federal systems – Australia and the United States – have responded to the COVID-19 pandemic. In doing so, I will suggest that it is as much the attitude of the actors within the federal system, as it is the system itself, which determines the success of a national response in a time of crisis.
The United States
The shortcomings of the American response to the pandemic have been well documented, and are reflected in the sad fact that the country now leads the world for reported cases and deaths. The American federal structure, while not the cause, is at least the site of many of the shortcomings of the country’s response. COVID-19 has shown the federal structure to be strained and, at some points, broken. American federalism relies on the federal government assuming a coordinating role on national issues that are either too complex or too contentious to be managed by the mutual cooperation of the fifty states. The pandemic revealed itself to be one such issue, but the federal government did not initially appear interested in assuming its coordinating responsibilities. Thus, when there was a national rush on personal protective equipment, the federal government would have been well placed to develop a scheme for the state-by-state allocation of such equipment to best combat the national spread of the virus. Instead, the federal government largely abdicated its responsibility and allowed a bidding war between the states.
Admittedly, the federal system’s diffusion of power also allowed states to implemeowever, as events have shown, no state is an island (except Hawaii) and proactive measures in one state are of limited utility without some level of national coordination. Had the federal government enthusiastically endorsed and supported state initiatives, it might have been possible to better integrate the diverse patchwork of policies across the country. Instead, the federal government’s response has too often been combative. The hostile character of federal relations during the pandemic came to a head when the President announced, incorrectly, that he had “total” control to override state government decisions about how and when to reopen their economies after the crisis. As will be seen below, the hostile and uncooperative character of American federal relations during the pandemic were not an inevitable product of the federal structure. In Australia, a country with a federal system in the American mould, the pandemic has fuelled a renewed belief in the value of federalism.
In stark contrast to the United States, the inter-governmental response to the pandemic in Australia has largely been celebrated in the media and academia as a triumph of a well-functioning federal system. Earlier this year, as the threat of COVID-19 began to loom large on the horizon, most Australians looked to the federal government for policy leadership. Initially, the federal government failed to provide that leadership, or at least it failed to communicate leadership, which was just as problematic. This failure was epitomised when – at a time that social distancing was already being seriously debated – the Prime Minister insisted he would attend a stadium sports game (only to later relent after being excoriated by the media and public health professionals). Meanwhile, Australian states were advocating more proactive measures than those proposed by the federal government. In this respect, the initial Australian response to the pandemic was not dissimilar to that of the United States; in both countries it was initially the states, rather than the federal government, that provided political leadership.
In Australia, however, the federal and state response integrated as the threat of the pandemic became more immediate. The federal and state governments joined together in a display of “executive federalism” to create a unique, non-partisan National Cabinet comprised of the heads of each jurisdiction. Although not functioning as a “cabinet” in the traditional sense, this body facilitated coordination, high-level deliberation and information-sharing among the federal and state governments. The Council of Attorneys-General, another coordinating body, further facilitated federal cooperation by negotiating a National Partnership on COVID-19 Response and a National Partnership on Disaster Risk Reduction.
Importantly, however, the inter-governmental cooperation in response to the pandemic did not create an expectation of policy uniformity. Each state was left free, within certain limits, to chart its own course in response to the pandemic. Some states closed their internal borders, others left them open. Some states put in place “lockdown” type social restrictions, others favoured much more modest recommendations of social distancing. Some states preferred a largely uniform approach to restrictions, others focused on uniquely vulnerable groups within their borders. Unsurprisingly, more recent moves to roll back restrictions have also proceeded in a piecemeal fashion, depending on the circumstances on the ground in each state. Of course, not everyone has agreed with the individual policy decisions of each state, however there does appear to be widespread support for the federal structure under which the decisions were made. This is somewhat surprising, given the previously longstanding consensus that Australia’s federal system, if not obsolete, was at least in need of dramatic renovation.
Part of the reason why the pandemic showed Australian federalism in its best light is that the crisis required more than just national coordination. While national coordination was certainly necessary, an effective national response to the pandemic also required local policy adaptation and local political buy-in, both of which federalism is uniquely placed to deliver. As to the first consideration, local policy adaptation, each state was permitted to shape its own pandemic response based on the state government’s unique knowledge of its own geographic, demographic, economic, social and cultural conditions. As to the second consideration, local policy buy-in, coordinated responses to public health emergencies work most effectively when the public “buys in” and is committed to adherence and “self policing”. Federalism facilitated this by ensuring that the public in each state felt that the rules or recommendations with which they were being asked to comply were locally generated, rather than being dictated from some distant national capital.
Importantly, the above-mentioned features of Australian federalism that made it well-suited to pandemic response are also characteristic of American federalism. The Australian experience suggests that a federally divided system can respond swiftly and effectively to as grave an external threat as the pandemic.
The COVID-19 pandemic has revealed marked differences in the way America and Australia’s federal system are currently operating. It seems implausible to attribute these differences to each country’s constitutional design, given that Australia’s federal system was closely modelled on that of the United States. Rather, the brief exposition provided above has suggested that the relative success or failure of federal responses to external threats is determined by the attitude of the actors within the federal system. Federal systems do not prevent swift and coordinated national action, but they do rely on both federal and state actors being willing to cooperate. One obvious barrier to such cooperation is the party political allegiances of the various state and federal governments. In the United States, it has been suggested that “The slow U.S. response [to the pandemic] was not due to constitutional infirmities of federalism but to party polarization”. In Australia, by contrast, the federal-state response has been characterised by extraordinary bipartisanship. In the final analysis, COVID-19 not so much revealed a weakness of federalism as much as its interrelatedness with party politics. When bipartisanship prevails, federal systems are well-suited to responding to urgent external threats. However, if party politics remain entrenched even in the face of national emergencies, divided federal power poses a significant obstacle to an effective national response.
Posted by Julian R Murphy (University of Melbourne, School of Law)
Julian R Murphy is a PhD student at the University of Melbourne, School of Law, where he researches comparative constitutional law and is the assistant editor of the Blog of the International Association of Constitutional Law (IACL). Julian’s scholarship has been published, or is forthcoming, in the Harvard Journal on Legislation, the Columbia Journal of Race & Law and the British Journal of American Legal Studies. Julian holds an LLM from Columbia University, where he was a Human Rights Fellow, and Bachelors of Arts and Laws from the University of Melbourne.
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