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I would leave it to the governors.
âPresident Donald J. Trump, April 3, 2020
The January 5, 2020, posting on the World Health Organization (WHO) website seemed relatively innocuous. Captioned âPneumonia of unknown causeâChina,â it briefly reported about a number of cases of pneumonia detected in the city of Wuhan, a port city of 19 million inhabitants.1 Few in the United States took note, with the exception of scientific specialists in the areas of infectious diseases and public health. Several days earlier, Li Wenliang, a Chinese ophthalmologist at Wuhan Central Hospital, had notified colleagues about a new illness that appeared highly contagious and resembled severe acute respiratory syndrome (SARS); the illness would later be named SARS-CoV-2, or, generically, coronavirus disease 2019âCOVID-19 for short. He was criticized and sanctioned by Chinese authorities. A month later, Li died of the disease. America and the world were about to be plunged into one of the most challenging global crises since World War II. The nation was to learn important lessons about why states matter. And many of us would be left wondering whether our constitutional system of federalism provided an effective framework for addressing the crisis.2
Legislatures Convene as the Storm Gathers
Halfway around the world, US governors and state legislators were preparing for their annual legislative sessions. Virginia was among the first states to convene, doing so on January 8. Major policy changes were projected for the state since the Democrats had just taken control of the legislature and held the governorâs office as well. On the other side of the country, Washington State convened its own session on January 13. Both states were about to make history as each elected its first woman SpeakerâEileen Filler-Corn in Virginia and Laurie Jinkins in Washington. And Democratic governors Jay Inslee of Washington and Ralph Northam of Virginia were optimistic about leaving their marks on their states in light of a strong economy and Democratic majorities. Within two months, they would join other governors across the nation in confronting the greatest challenge of their administrations.
Few state lawmakers noticed when the US Centers for Disease Control and Prevention (CDC) issued a travel warning advising against any nonessential travel to China on January 6,3 or even when the virus began to affect other countries. In Virginia, the new majority was focused on passing its agendaâgun safety legislation, raising the minimum wage, transforming the energy sector, and redistricting reform. And lawmakers in Washington State arrived in Olympia with priorities of their own: initiatives to address climate change, increase teachersâ salaries, and enact greater workplace protections. Neither legislature seemed worried about COVID-19.
As legislatures in Virginia and other states focused on hundreds of new possible laws and state budgets in early January, the WHO was sending directives to hospitals around the world suggesting immediate action to control the spread of the virus. Controlling its spread was especially important because there was no vaccine, and was significantly complicated by the fact that many carriers were asymptomatic and therefore did not realize they could transmit the virus to others. An emergency committee of international experts met on January 15 in Geneva to assess whether the outbreak constituted an international emergency.4 That same day, crowds cheered as the Virginia legislature ratified the Equal Rights Amendment (ERA), becoming the thirty-eighth state to do so.5
A Growing Concern
Most Americans were more focused on events taking place in Washington, D.C.ânotably the first impeachment trial of President Trumpâthan on either their state legislature or a virus that was about to have a major impact on their lives. On February 5, the US Senate acquitted the president of the House impeachment charges. Meanwhile, a full-scale epidemic was under way in China, and cases were being reported in places as diverse as Iran and Italy. South Korea had initiated a massive testing program,6 and Singapore was vigorously engaged in fighting the spread of the virus.
Washington State officials first became concerned when a thirty-five-year-old resident tested positive for COVID-19 after returning from Wuhan. Alarm spread as more and more deaths were reported in other countries, especially as the disease spread to Europe, and as additional cases were reported in the state. By the end of February, Washington had reported two deaths and was becoming a âhot spotâ for the growing number of cases reported throughout the United States.7 Johns Hopkins University, which had been monitoring cases, reported that the global death toll had surpassed 3,000 on four continents.8 On February 29, 2020, Washington governor Jay Inslee, at the instigation of public health officials, declared a state of emergency.9 COVID-19 had been unleashed on America.
Washingtonâs new House Speaker, an attorney who had worked in health care for years, understood immediately the implications of the disease for her constituents and the state, and was an enthusiastic supporter of the governorâs action. âWhen we looked at the data, it was clear that we had no choice but to get ahead of the curve by encouraging social distancing,â she observed. âWe also had to do some education; some of our members initially viewed this as a âhoax.â Fortunately, our minority leader stepped up, stating that the data is there to support decisive action.â10
Italyâs spike in cases did not occur until early March, and, even with Insleeâs emergency order, thoughts of a pandemic had not seriously crossed the minds of most US state lawmakers, especially in the Commonwealth of Virginia, which seemed so far away from China and even from Washington State. State public health officials across the nation, however, were growing increasingly concerned. In Virginia, Dr. M. Norman Oliver, the commissioner of public health, and Dr. Lilian Peake, the state epidemiologist, recognized the potential impact of COVID-19 in January as they watched its exponential growth in China and other nations; it would not be long until the United Statesâand Virginiaâwould face a similar challenge.11 The stateâs pandemic work plan, developed several years earlier, was activated, and an incident command structure was established to respond to the threat; Peake, a twenty-year veteran of governmental experience in the public health arena, was placed in charge. âI had witnessed a number of close calls in the pastâavian flu, SARS, H1N1; they were serious but could easily have become disasters,â she explained. âIt was important to us that we begin informing physicians and health departments about the developments without creating too much alarm.â12
While there had not yet been an identified case in the commonwealth, Peake alerted the statewide network. The governor and his cabinet were briefed. On March 3, Governor Northam informed the public about the stateâs plan, attempting not to frighten citizens before the oncoming threat could be more easily communicated. It did not take long for the virus to hit the commonwealth. The legislature was largely focused on passing a two-year budget based on a rosy economic forecast and pushing various bills over the finish line for final passage. While most lawmakers were now aware of COVID-19, few fully understood its implications, and they were up against the constitutional deadline for producing a budget.13 The hope remained that âit canât happen here.â
On March 10, 2020, after COVID-19 had swept through at least 114 countries and killed more than four thousand people, the WHO formally labeled it a pandemic, the first use of the term since the 2009 H1N1 swine flu outbreak.14 On March 12, the same day Virginia legislators were scheduled to vote on the budget and adjourn, Governor Northam announced a state of emergency.15 The legislature finished its work and adjourned until the next scheduled session, slated for April 22, at which they expected to consider the governorâs vetoes and changes in the budget.
Over the course of the next month, the worlds of state governors and policymakers would be turned upside down. Almost overnight, all state actions became COVID related. As the virus slammed into local communities and the economy tanked, state legislatures watched as many new initiatives passed during their sessions unraveled as a result of projected budget shortfalls. Moreover, most lawmakers were now largely left on the policy sidelines. It didnât matter whether you lived in a blue state or a red state. Management of the crisis became quickly concentrated in the hands of state executives. Even if they were briefed by their governors about numerous executive actions, legislators were largely left to calm constituents and provide them with whatever information and services were available. Never had so much power been concentrated so quickly in the hands of governors, a dynamic that troubled policymakers genuinely concerned about the balance and separation of power between the branches of government. State leaders across the nation had begun to understand the implications of this rapidly developing pandemic.
Ignoring the Scientists
The initial response from Washington was less than salutary, with the administration ignoring both evidence of the spreading virus and the warnings of epidemiologists, insisting instead there was not much to worry about. President Trump downplayed the extent of the spread, saying, âItâs one person coming in from China, and we have it under control. Itâs going to be just fine.â16 Larry Kudlow, the presidentâs chief economic adviser, stated in late January that the virus would have âminimal impactâ on the US economy.17 Other economists, however, were beginning to take notice. âThe recent emergence of the coronavirus,â the Federal Reserve Board said in its semiannual report released on February 7, âcould lead to disruptions in China that spill over to the rest of the global economy.â The administration remained skeptical, at least publicly. At a White House meeting on February 27, Trump sounded an optimistic note: âItâs going to disappear. One dayâitâs like a miracleâit will disappear.â18 State governors knew better. They could wait no longer for a federal response.19
Flattening the Curve
State governors possess extraordinary emergency powers. Emergency declarations permit governors to mobilize the National Guard, close schools, invoke curfews, and prevent gatherings. They allow states to redirect health care workers to where they are needed and organize hospitals to meet the demands of an outbreak. They can seize properties to create emergency medical centers if hospital beds are not available. They can transfer equipment and supplies from one hospital to another, based on the needs of the moment. They can impose quarantines. As the risks posed by the virus became clear, governors began using their powers in ways that we have rarely seen.20
Many citizens were focused on the federal response, but in the absence of a national plan to reduce the spread of the virus and mitigate its economic effects, it fell to the states to take action. Mobilization against the virus involved local and state health departments, state emergency preparedness offices, and state and local first responders, all of which are under the control of individual states. Most of the testing would be coordinated by the states, even if the federal government provided some of the kits. Once President Trump suggested that states should find their own ventilators and protective garb, states moved to obtain the needed supplies.21 And finally, coordination of hospital beds, which were threatened to be overrun with virus cases, is largely a state responsibility.
From the first recognition of the crisis, most governors, regardless of party, knew that the best prospects for confronting the virus involved flattening the curve of transmission or slowing the spread of the virus over time, which would remove some of the excess burden from hospitals and caregivers. Social distancing became commonplace as state chief executives first implored, then compelled, citizens to limit their contact with othersâa particularly important move, as individuals could harbor the virus and transmit it to others while remaining asymptomatic themselves. On March 4, Ohioâs Republican governor, Mike DeWine, shut down a weekend fitness expo expected to draw 60,000 people a day to a Columbus convention center. This was a preemptive move based on the science of transmission: the state had no identified coronavirus cases at the time. The governor closed the stateâs schools three days later and issued a statewide stay-at-home order shortly thereafter. In early April, Ohio appeared to be realizing the benefits of the governorâs efforts at early intervention. With about 5,100 COVID-19 cases, Ohio had fewer than a third the number of cases in three comparably sized statesâMichigan, Pennsylvania, and Illinois.22
New Yorkâs Andrew Cuomo declared a state of emergency in his st...
