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*Audrey Fernandez

 At its core, federalism promotes a system of shared sovereignty between the national and state governments. The Tenth Amendment to the U.S. Constitution, which aids in defining the scope of federalism, provides that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”[1] Throughout history, the U.S.’ responses to major crises reflect an attempt to balance the exercise of power between the federal and state governments and maintain each within its constitutionally prescribed boundaries. This balancing act becomes tricky, however, when the crisis at hand implicates issues of both national and local concern.[2] The question arises: during interjurisdictional emergency situations such as the COVID-19 pandemic, what are the responsibilities of the federal and state governments?  Should the federal government be doing more?

Traditionally, issues of public health fall under the purview and responsibility of the state under its police powers.[3] As the Supreme Court noted in Medtronic Inc. v. Lohr, because public health and safety are “primarily, and historically, matters of local concern, the states traditionally have had great latitude under their police powers to legislate as to the protection of the lives, limbs, health, comfort, and quiet of all persons.”[4] The Court has also recognized the authority of states to enact quarantine laws and health laws that relate to matters completely within its territory.[5]

However, where state response is inadequate, the federal government may intervene.[6] Federal response roles are shared between the Department of Homeland Security (“DHS”) and agencies within the Department of Health and Human Services (“HHS”).[7] The federal government’s ability to intervene in matters of public health stems from its constitutionally mandated right to regulate interstate commerce.[8] Still, other federal healthcare regulation operates through the Constitution’s spending clause.[9]

Responses to the COVID-19 pandemic from both the federal and state governments have been described as inconsistent and uncoordinated, and this is particularly due to the overlap in jurisdiction and competing authorities.[10] Muddling the situation even more is the fact that our nation’s primary defense against the virus is divided among 2,684 state and local public health departments.[11] And although the federal government can and has issued health guidelines, states retain the choice to ignore those guidelines or impose more drastic measures.[12] Such flexibility makes creating a national strategy all the more unattainable.

Currently, the federal government has issued guidelines for states to follow in reopening their economies.[13] Congress’ $2 Trillion stimulus bill is providing assistance and healthcare response to individuals, families, and business affected by the COVID-19 pandemic.[14] And perhaps this is all we should expect from the national government. Maybe, emergencies, even of such a great magnitude as the COVID-19 pandemic, must be and are best handled at the state level.

While some states are working with the White House to plan their response efforts, others are coordinating with neighboring states.[15] Such interstate arrangements could be the answer to achieving a more effective response in times of an emergency without further empowering the federal government.[16] Recently, Massachusetts joined the multi-state council formed among New York, New Jersey, Connecticut, Pennsylvania, and Rhode Island.[17] The council, which is comprised of one health expert, one economic development expert, and the respective Chief of Staff from each state, is working on developing a regional plan to start up the states’ economies while also minimizing the spread of the virus.[18] Interstate coordination such as this could come to be a new feature of American federalism in times of crisis.[19] Perhaps, then, an uncoordinated response to the COVID-19 pandemic  merely means that federalism, as practiced, is keeping within its constitutional barriers.

* J.D. Candidate, 2020, Florida International University College of Law.

[1] U.S. Const. amend. X.

[2] See Erin Ryan, Federalism and the Tug of War Within: Seeking Checks and Balance in the Interjurisdictional Gray Area, 66 Md. L. Rev. 503, 568–69 (2007).

[3] Medtronic, Inc. v. Lohr, 518 U.S. 470, 475 (1996) (“Throughout our history the several states have exercised their police powers to protect the health and safety of their citizens.”).

[4] Id.

[5] Jacobson v. Massachusetts, 197 U.S. 11, 25 (1905).

[6] 42 CFR § 70.2 (2020).

[7] Responsibilities in a Public Health Emergency, NCSL (Oct. 29, 2014),

[8] Federalism and the Coronavirus, Legal Talk Network (Apr. 3, 2020),

[9] Id. See, e.g., 42 U.S.C. §1395dd (2020).

[10] Richard Kreitner, When Confronting the Coronavirus, Federalism Is Part of the Problem, The Nation (Apr. 1, 2020),

[11]Polly J. Price, A Coronavirus Quarantine in America Could Be a Giant Legal Mess, The Atlantic (February 16, 2020),

[12] Id.

[13] Guidelines: Opening Up America Again,

[14] H.R. 748, 116th Cong. (2020) (enacted).

[15] Jennifer Selin, Trump Versus the States: What Federalism Means for the Coronavirus Response, The Conversation (Apr. 13, 2020),

[16] Kreitner, supra note 10.

[17] Massachusetts Joins New York, New Jersey, Connecticut, Pennsylvania, Delaware and Rhode Island’s Multi-State Council to Get People Back to Work and Restore the Economy, N.Y. St. (Apr. 13, 2020),

[18] Id.

[19] Coronavirus Will Change the World Permanently. Here’s How, Politico (Mar. 19, 2020)