Pandemic Response, other Policy Challenges, and Joint Federal-State Agencies

Imagine, for a moment, that our current discussions about coronavirus shelter-in-place orders were happening in a somewhat different political reality.  In that alternative reality, the President and state governors agree that states need to be key players in decisions, but they also agree that the states should not set fifty different policies and that important national interests are at stake.  So they decide to form a set of regional agencies, each with federal and state commissioners, and to charge those agencies with setting shared opening dates—and perhaps with authority to oversee distributions of protective equipment and other key elements of the pandemic response. (Because the governors and the presidents understand how separation of powers works, they also seek, and obtain, state and federal legislation authorizing participation in these new agencies.) Would these agencies make sense?  And would they be constitutional?

In a forthcoming paper, Hannah Wiseman and I argue that the answers to these questions are yes and yes.  Joint federal-state agencies, we argue, are a sensible and constitutionally permissible response to policy challenges, and they deserve more attention than they have traditionally received. Our subject matter isn’t the pandemic; lacking foresight and, perhaps, a talent for marketing, we chose interstate water management and energy facility siting as our most frequently recurring examples.  But we think our argument could apply to many other realms, and pandemic response could be one of them.

The policy argument for joint agencies is ultimately straightforward: shared governance can make sense for shared issues.  Though legal and policy thinkers are accustomed to asking whether the federal government or the states will better handle an issue—implicitly assuming the answer is one or the other—most policy challenges straddle federal-state boundaries.  We can compensate for that reality by just empowering the feds or the states or we can create cooperative federalism systems that involve both, often through complex administrative arrangements.  Both approaches sometimes work.  But in some circumstances, a conceptually simpler approach—creating a joint body to address overlapping issues—could provide more simplicity and efficiency and lead to better decisions.

The constitutional argument, at its core, is similarly straightforward: no specific constitutional provision forbids this sort of arrangement, and broader constitutional principles favor it.  That doesn’t mean the analysis is simple; potential issues might arise with the Dormant Commerce Clause, anti-commandeering doctrine, delegation, appointment, and removal, and with the broader sense that the federal Constitution is designed to keep federal and state governments apart.  But all of those arguments, we argue, fade upon close examination.

We hope our argument also holds some value for the broader discourse about federalism.  In public discussions about coronavirus response, that discussion has often seemed wedded to an archaic vision of federalism, in which federalism and states’ rights are one and the same.  But that’s not how American federalism actually works or, we argue, how the Founders intended it to work.  In the real world (as many, many commentators before us have pointed out; this part’s not original), American federalism is all about overlap.  It is a set of doctrines governing realms of shared authority, with both the federal government and the states playing significant roles, rather than defining and maintaining separate spheres.  That means we ought to have abandoned, and abandoned long ago, the simplistic notion that you’re only a federalist if you want more state power and you’re opposed to federalism if you perceive the need for a federal role.  But it also means we need to think more about how governance arrangements can actually succeed, rather than just creating uncoordinated messes, in zones where both federal and state governance is active.  Joint federal-state agencies, we argue, are one potential way to bring some order to that complexity.

We probably won’t get such an agency for this pandemic.  The states that are most actively engaged in responding to the pandemic will have little interest, understandably, in working with the appointees of a president who lurches between denialism, incompetence, and active attempts at sabotage.  But for a future pandemic or some other policy challenge, and perhaps with some different people involved, that kind of structured collaboration could make a big positive difference.

- Dave Owen