Who has the power? Feds, state, county, city?

The coronavirus outbreak has called into question the sometimes unclear deliniation of responsibilities between different branches of U.S. government. And re-ignited debates about federalism not seen since the New Deal. Richard Epstein on the Libertarian podcast explores the issue.

Troy Senik, moderator: “Some people are arguing that in this health crisis,we are discovering that federalism is our strength, and we need to decentralize, and that different jurisdictions have different needs here. And others say that, "America, you need to essentially get your act together; this has to be managed from the top down." Which of those is a closer approximation in your judgement of the way this has to be run?”

Richard Epstein: “Well I think they’re both wrong. The traditional view on federalism pre-1937 gives the federal government control of the instrumentalities of interstate commerce, and that kind of makes sense. You don’t want people getting on a train in one state and bringing this stuff to another state. It also, by the way, under the earlier views, said once you get there, the states can apply its local inspection laws to people who get off the train, which seems to be about the right accommodation. The problem about having the local governments do it is, ironically, it’s not granulated enough. You have New York; essentially there’s a tri-state area: a little bit of Connecticut, a lot of New York, and a fair chunk of New Jersey, which is probably the source of over 50 percent of deaths and new cases right now. A state’s not going to do particularly well on that because you’ve got a tri-state area. Federal government’s not going to do particularly well on that; you’ve got to get a compact among those people. My own view about it is that New York is kind of sui generis in the following sense: it was a place where you had the first very large jolt of this virus come in, like it was in the Washington nursing facilities. And as it turns out, you have very high concentrations of people, you’re going to have trouble, and if the virus starts to replicate more rapidly, it’ll get more severe. But in Buffalo, why do you have to shut that town down? It is a very difficult problem here and one has to appreciate the gravity of it. So it’s not so much federalism. Federalism allows somebody to take a whole state and treat it in a completely asinine way. It turns out whoever is running this kind of stuff has to be prepared to trade off the public risk against economic dislocation. This is the problem of silo-discipline; you get public health people who know public health, and you get economic people who know economics, and what the president has to do is to find people who know both, and the same is true of all the governors.”

Listen to the whole thing at here.

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