President Trump has a unique understanding of federalism. During Monday night’s White House coronavirus task force briefing, Trump both blamed governors for their lack of ventilators, and asserted that, when it came to the decision to reopen businesses closed by stay-at-home orders issued by governors, “when somebody is the president of the United States, the authority is total, and that’s the way it’s gonna be.”
This fits with the Trump administration’s overall response to the pandemic, one that has left frustrated governors fending largely for themselves and pondering a consortium to keep from bidding against one another for essential equipment and to smooth procurement.
Although Trump is claiming total power in his rhetoric, his abdication of federal leadership has left governors struggling to fill the void. Their predicament has left some observers seeing a situation similar to the country’s earliest days under the Articles of Confederation (1781-1789). The powers of Congress were severely circumscribed and state governments were left to handle disasters alone. In this period, the federal government could claim no responsibility for a public health crisis like the current pandemic.
But the situation may actually be more akin to the period after the Constitution was ratified in the hopes of fixing these problems. Even though Congress had many new powers, for years afterward the federal government still refused to take responsibility for the health of American citizens, even when the state governors specifically asked for federal help. As the yellow fever epidemic of 1793 demonstrates, this refusal to accept responsibility could have catastrophic consequences.
The Articles of Confederation proved unworkable because the federal government had no executive branch — Congress could make laws, but it could not put them into effect by itself, relying instead on the state governments to enforce those laws. Without a functioning federal government, some states flouted treaties, failed to honor their debts and imposed tariffs that damaged American trade and the international reputation of the United States.
The Constitution was intended by many of its framers to improve radically the capacity of Congress to impose its laws directly on the citizens of the United States, and to circumscribe the actions of the state governments in the spheres of foreign, military and fiscal policy. But most early American leaders would claim the management of public health still fell exclusively to state and local governments. Gov. Henry Lee of Virginia learned this lesson the hard way in the summer of 1793, when he heard that a plague had broken out in the Caribbean.
In June, Lee received alarming news: Reports were coming in to ports along the Eastern Seaboard that a ‘pestilence’ was ravaging the Windward Islands. Local authorities knew ships would be traveling between those islands and the coast of North America, and would almost certainly bring what was probably the deadly yellow fever along with them. Lee was unsure how to respond to this new threat. He had heard that Gov. William Moultrie of South Carolina had imposed a quarantine in the ports of his state, but, Lee asked himself, shouldn’t it be the responsibility of the national government to respond to this impending national disaster?
So, Lee wrote to his fellow Virginian, Thomas Jefferson, George Washington’s secretary of state, and a former governor of Virginia himself. Lee told Jefferson that Moultrie had imposed his own state quarantine, but that he himself understood that “the right to act on this subject … belongs to the general Government.” Virginia had state laws that would allow him to impose a quarantine, yes, but there was a problem. These laws vested the power of managing the process in the customs officials resident in the ports, and the federal government had, by now, taken over the customs service from the states. So, the quarantine would have to be handled by federal officials.
But Jefferson disagreed with this interpretation. “No provision on the subject has been made by the laws of the general government,” he wrote, “which would enable the President to interfere.” As Congress had made no laws specifically addressing the problem of disease management, Jefferson argued, the federal government could not help contain the epidemic. Unlike some of his contemporaries, Jefferson believed federal officials should only act when the Constitution explicitly empowered them to do so.
Lee responded, eventually, that the state government would make its own provisions to manage the crisis, and that if the president wanted to, he could direct the customs officers to “contribute to the due execution of the regulations prescribed.” But for now, the state would soldier on alone.
The results of federal inaction were most visible in Philadelphia, then the capital of the United States, where the plague arrived later in the summer and fall. Federal officials living in the city, including Jefferson, fled the disease as fast as they could, leaving the management of the disaster to local officials and physicians. Around 5,000 Philadelphians died in that year’s outbreak, while the governments of several nearby towns closed their doors to refugees from the disease-ridden city. Treasury Secretary Alexander Hamilton and his wife were turned away from several towns as they traveled through New Jersey on their way to New York that fall, the residents fearing they carried the infection with them.
Federal inaction meant different states and cities took a variety of different measures, some of them astounding in their cruelty. Cities and sometimes entire states set up armed guards at their borders to prevent Philadelphia evacuees from entering. Ships were sent back out to sea without fresh water, and lurid stories circulated of migrants left to die of starvation on the outskirts of towns.
The lack of a unified national response increased panic and misinformation, fueling the enactment of these stringent and cruel measures. It also left a handful of ordinary local citizens and medical personnel — men and women, black and white — to attempt to manage the situation in Philadelphia. With little government support, they paid their way with charitable gifts, many of them dying of the fever in the process.
Despite these efforts, the yellow fever epidemic was truly a disaster of national proportions. In 1793, not only Philadelphia, but also Portsmouth, N.H., was hit hard by the disease, and it returned the following year to kill many in New York, Charleston, Baltimore, Providence and Norfolk, as Henry Lee had feared.
But it would be another five years before Congress and President John Adams, would make any provision for a federal response to epidemic disease by “provid[ing] for the temporary relief and maintenance of sick or disabled seamen” in the ports of the United States. Even so, the federal government generally continued to treat illness and public health as matters for state and municipal governments to manage themselves until after the Civil War.
By 1800, many major cities were forced to set up independent municipal Boards of Health to help manage sanitation and prevent the spread of infectious diseases within their limits, while some state governments organized and funded their own hospitals.
By leaving the management of epidemic disease to state and local authorities, early American leaders contributed to the chaos and disruption that came with terrifying outbreaks. Today such a posture would be even more dangerous, given our dramatically increased capacity for travel and our interconnectedness.
The federal government can avoid these mistakes by coordinating a unified national response to the coronavirus crisis. The success of American federalism has always depended on a cooperative — not a combative — relationship between the nation’s different governments.