The states, rather than the federal government, have taken the lead in responding to COVID-19. This is in part because states have broad police powers that allow them to enact measures like stay-at-home orders. It is also because the federal government has avoided issuing guidance, even suppressing a recent CDC report, which has left the states without central coordination. Some praise this strategy as a prudent invocation of federalism. But any evaluation of the federalism benefits must account for the fact that the national response has created what I call “communicative confusion.”
Law is typically thought of as a device to control behavior. Broadly speaking, laws set out rules—from speed limits to product safety requirements—to which people conform their conduct. But law serves another function: to express things. Laws allow a government to convey messages to its people. Anti-discrimination laws, for example, communicate that discrimination on the basis of certain categories is wrongful. Criminal laws, in a similar way, express moral disapproval toward murder. And this expressive function is generally seen as distinct from the law’s function of controlling behavior.
But there is a tension between federalism and the law’s function as an expressive device. If each state expresses a different message, the conflicting signals might confuse people over what the message is. Ordinarily, the practical implications of this are trivial. Compare Georgia law, which prohibits the recreational use of marijuana, with Illinois law, which permits it. The laws might communicate different messages to their citizens about the morality or the dangers of marijuana, but any resulting confusion is unlikely to cause serious negative externalities. More importantly, there is little interaction between the expressive function and the behavioral function because what Georgia communicates about marijuana is unlikely to affect how an Illinois resident acts toward it.
The same cannot be said for COVID-19 orders because their expressive function is not distinct from their function of controlling behavior. In other words, what the government expresses about the virus affects the way people react to it. When a state closes restaurants or orders that its citizens shelter in place, it expresses to its citizens that the virus is a serious concern which could lead to harm or death. This expression then affects behavior because those who believe that the virus is a serious concern are more likely to take preventive measures like social distancing or wearing a mask. To be sure, other authorities—like scientists or media personalities—influence our decisions, but governmental authority carries considerable weight, especially during a global pandemic.
Since the expressive function of COVID-19 orders is not distinct from its behavioral function, the invocation of federalism in this circumstance does present serious negative externalities. Put another way, because the orders express something that guides important behavior, it is problematic to create confusion over what the orders are expressing.
Here, the use of federalism has exposed the public to three conflicting messages. One group of states, through reopening, is communicating that the virus is less serious. Another group, by extending their stay-at-home orders, is communicating that the virus is more serious. And the federal government has issued inconsistent recommendations, seeming to confuse even itself. Much of its messaging, including its unwillingness to offer guidance, has downplayed the severity of the virus, but it has also sent messages that express concern about the virus’ severity. For example, after first approving the plan, President Trump rebuked Georgia for reopening too early.
So we must weigh any benefits of federalism—like tailored regional responses—against the communicative confusion that it creates. While federalism nominally grants states greater leeway in responding to the pandemic, it also undermines the message any one state tries to convey. This is because the efficacy of COVID-19 orders depends almost entirely on our compliance. And our compliance depends on people understanding the severity of the pandemic. If federalism obscures the message, then even though a state can produce its own orders, the orders will have less vitality.
Unlike with marijuana laws, what Georgia Governor Brian Kemp expresses about COVID-19 through executive orders can undermine what Illinois Governor J.B. Pritzker expresses in his own orders. Similarly, what President Trump expresses can, and does, undermine both governors to the extent that people adhere to federal guidance. An Illinois resident understands that Georgia is facing the same virus as Illinois, so she might reason that if both Governor Kemp and President Trump urge reopening, then Governor Pritzker must be overreacting. Or, lacking uniform direction, she might not know what to think or what standard to conform her conduct to. In short, when we evaluate the state-by-state response to COVID-19, we must account for the fact that federalism collapses under the weight of the communicative confusion it produces.
Harry Dodsworth is a student at Northwestern Pritzker School of Law and an Articles Editor on the Northwestern University Law Review.