COVID-19, The Supreme Court, and the Failure of Federalism
The year is 2020. A global pandemic kills hundreds of thousands, shutting down the global economy and making every mundane choice — whether grandma watches the kids today, where to go grocery shopping — a life or death decision. The United States, with 4% of the world’s population and 20% of pandemic deaths, the federal government has largely abdicated any role in attempting to solve the problem. The Center for Disease Control (CDC), once a globally recognized leader in handling new disease outbreaks, issues political edicts and largely sits on the sidelines. State governments go bankrupt trying to do the basics of disease management with a fraction of the tax revenue of the federal government. That federal government, which not only takes in trillions in tax revenue but also has the capability to print money, instead pressures state governments to reopen businesses (the states main source of tax revenue), spreading disease further. The elected representatives of the people in Congress squabble about lifetime appointments for ideologue judges — unelected and unaccountable servants of the system with the power to rewrite existing laws to fill the negligent void left behind by lawmakers more interested in TV time on propaganda networks.
From the judges to the members of the Senate to the president himself (always a he), they represent a small radicalized minority seeking to manipulate institutions against the majority of the country, who is largely powerless in the system of government. The last time the Republican Party won the popular vote for a new candidate was in 1988, the while Republicans routinely win power in the Senate despite millions fewer votes nationally. Yet they have managed to take over the courts — courts which have made key decisions limiting the right of the majority to vote for president (Bush v Gore 2000) and sanctioning the right to discriminate by race in election systems (Shelby v Holder 2013). At the same time, they have dramatically expanded the ability for money to buy elections (Citizens United v FEC 2010) and even sanctioned political bribery (McDonnell v United States 2016).
The system, year by year since the rubicon moment in Bush v Gore 2000, has been insulating its power from the reach of the American people. It does this first by manipulating norms of governance. When Justice Antonio Scalia died in 2016, the Republican Senate moved quickly to block hearings for President Obama’s nominee, citing an election that was well over 200 days away. When Justice Ruth Bader Ginsberg passed away last night, the same Republican Senate announced their intention to move quickly to appoint a replacement despite an election that was 49 days away. The only principle at work was to manipulate a system of lifetime appointments to further political goals they could not accomplish at the ballot box. Ironically, these lifetime terms were created in the hopes that they would render judges to be more impartial to political concerns. Instead, it has turned the judicial system into a winner-takes-all partisan institution.
Similar anachronisms have been deployed to subvert popular will. The Electoral College — once a boring technicality in how presidents were selected, now routinely awards the loser of an election total power. This has two corrosive effects: the first is that it openly mocks the concept that the people can choose their government, and secondly it incentivizes disunion — the president who wins is not accountable to a majority of voters. Nor is it clear that there is a way to make that person accountable.
Lastly, the legislative branch was intended by the founders to be the people’s primary counter to these branches. One, the House, would represent the people, with one representative per 30,000 people. The second, the Senate, would make all states equal: each could appoint two Senators. The latter Senate has become highly unequal — the ~40 million residents of California get two senators, while the ~0.5 million residents of Wyoming get two. For perspective, the population of the 13 colonies at the time of the ratification of the constitution was about 2.5 million. Meaning that entire population could fit in the population difference between California and Wyoming over 15 times. The House was intended to remedy this, but in 1929 the number of representatives was capped at 438, increasing the number of citizens each member represented and lessening the connections between them and the people they represented. Add to this gerrymandering — the process by which lines are drawn to make certain outcomes more likely, and the ability of this sub-branch to fulfill its role is diminished.
This brings us back to COVID-19, which as of the time of this writing will have claimed 200,000 American lives. It has as of this writing killed twice as many Americans as World War I, and half as many as World War II. Federal acceptance of the gravest threat to American lives is only possible because federal governance doesn’t need, nor particularly want, these American lives to continue. The president can suffer million fewer votes and retain the presidency. The courts are lifetime appointments, and the judges are selected based on ideological fealty to cultural issues, rather than any fiduciary duty to all citizens. And members of the Senate represent a much smaller fraction of the US — it is no bother to a Senator from Wyoming if tens of thousands of New Yorkers die.
The added irony of this system is not only does the federal government do nothing — but it gets in the way of the states trying to do something. For every $2 a state collects, the federal government collects $8. The federal government collects 4X more tax dollars to support a military designed for threats that existed a generation ago. The siphoning of this money from each state leaves state governments, which occasionally represent their citizens, from having resources to deploy against the threat of coronavirus. The federal government could remedy this by printing money to backstop state budgets as they battle coronavirus, or pass a relief package through Congress. But it does neither because the stated aim of the federal government is to open up all businesses regardless of the threats of coronavirus. This has led to the preposterous situation where schools are closed (because they cost states money) while bars, notoriously effective spreaders of the virus, are open (they make states money).
The injustices of this system — the disconnect between main street and Wall Street — all ultimately stem from the inability of federal government to represent citizens. Worse still, when culture wars continue to move more important votes (i.e. white and rural) more than failures to keep Americans safe, the elite who run the country will know how many hundreds of thousands of American deaths are tolerable to maintain the status quo. Unless citizens find a way to make their voices heard to their supposed representatives in DC, they may as well cry out in the dark.
