Penn Carey Law Advances in Research

PANDEMIC GOVERNANCE

“COVID-19 has changed us and killed us, but it has also presented an opportunity: it has allowed us to observe our governance responses at work.”

research by YANBAI ANDREA WANG Assistant Professor of Law

In “Pandemic Governance,” published in the Boston College Law Review, Wang and Justin Weinstein-Tull of the Arizona State University College of Law explore the chaos of the first months of the COVID-19 pandemic and contend that the incoherent response from the U.S. government reflected well-worn but scattered governmental structures. They further argue that “understanding these underlying dynamics is crucial for ensuring that, when the next pandemic hits, we can respond in a way that encourages effective pandemic management.”

Pandemic Theory and Policy

To begin, the authors demonstrate that prior to the COVID-19 pandemic, a gap already existed “between the serious demands that pandemics place on governments and the pandemic-related policies that we possess.” By reviewing the significant amount of academic research on pandemics and crisis management, as well as the various federal, state, and local policies already in place prior to 2020 to respond to public health crises, Wang and Weinstein-Tull show that the existing policies lacked sufficient coordination mechanisms and clear lines of command to meet the needs of crisis management.

Noting that the United States has not experienced a pandemic of COVID-19’s scale for over a century, they explain that the country lacked an effective blueprint for responding to a widespread infectious outbreak on a national level. This, in turn, created fertile ground for the growth of ad-hoc governance, which then intensified the lack of coordination for responding to the pandemic. “This absence of a clear template for action formed the backdrop against which COVID-19 arose,” write Wang and Weinstein-Tull.

According to crisis theory, an effective pandemic response requires all levels of government to work in tandem to monitor infection rates and hospital capacity, implement testing and protective measures, and develop drugs and vaccines. Yet the authors observe that this is inherently a challenge for America’s system of government. “Because the U.S. Constitution disperses power between state and federal authorities,” they write, pandemic policies “exist at all levels of government.”

Intergovernmental Behaviors

The authors then gather pandemic-related governance decisions taken in select jurisdictions from January 2020 to July 2020 to identify four predominant intergovernmental relationships that emerged in the absence of a coordinated national response. They conceptualize these behaviors by defining them as active or passive and generative of conflict or coordination. They refer to passive conflict as undermining, such as when different governmental actors destabilize each other’s actions. Abdication, on the other hand, is passive conflict that occurs when governments failed to act when legally required to do so or despite being the only level of government that could comprehensively address a problem. Abdication leaves gaps for other actors, such as businesses or local authorities that are poorly positioned to direct a response, to fill. On the other end of the spectrum is active coordination, which manifests as collaboration: governments intentionally working together either vertically or horizontally to harmonize their policies and support one another. Finally, passive coordination manifests as bandwagoning: instead of acting proactively, governments delay and follow the initiatives of others.

In the early days of the pandemic, undermining took place at all levels of the government. Local governments undermined their states’ authority and states undermined the federal government. “Upward undermining allowed lower-level governments (local and state) to publicly register disapproval with higher-level governments (state and federal) and push for policy change,” write Wang and Weinstein-Tull. In the opposite direction, federal and state governments undermined downward. “During the first reopen phase of the pandemic in April 2020, for example, President Trump and his administration undermined the reopen schedule that certain states had set,” write Wang and Weinstein-Tull. “Rather than promote harmony with the CDC’s response guidelines, these [undermining tactics] seemed intended to politically harm three Democratic governors who had been critical of the president.” There was also horizontal undermining, which happens when the federal government undermines itself.

Abdication occurred when the national government failed to enact public health laws or issue comprehensive guidelines, provide adequate testing and medical resources, or address pandemic-related inequality. The result was vastly uneven impacts across the country. “African Americans, Latinos, and Native Americans have become infected with and died from COVID-19 at higher rates than white people,” they write. “The sectors of the economy that the pandemic has hit hardest are those that disproportionately employ women: restaurants, retail businesses, health care, and state and local governments. . . . Women of color experienced not just the diminished health outcomes associated with communities of color broadly, but also the economic pressures the pandemic imposed on women.”

The authors point out that conflict is a feature of the federal system. “The founders believed this kind of conflict would prevent any single political actor from becoming too powerful, and thus protect individual freedom against governmental overreach,” write Wang and Weinstein-Tull. Layering and overlap of governmental responsibilities also allow for intergovernmental substitution. But undermining and abdication “impose[] costs, especially during a deadly pandemic . . . . [b]ecause nearly any governmental action during an outbreak requires some cooperation with other governments.” When conflictual interactions arise from political gaming or serve to distract, they serve no function at all, or worse.

However, just as conflict is a feature of America’s decentralized government system, so is coordination. “Without an existing blueprint for a coordinated governance response, two forms of impromptu coordination emerged,” the authors write. The first — collaboration — happened when physically adjacent or politically similar governments worked horizontally to share information, supplies, and policies. Meanwhile, as some authorities began to act together, others passively followed by bandwagoning. In March 2020, several jurisdictions announced identical emergency shelter-in-place orders despite varying levels of infection rates. “Bandwagoning was particularly striking when it occurred across jurisdictions experiencing different stages of the outbreak,” write Wang and Weinstein-Tull, “[s]uggesting that it was less about putting in place an appropriate response to the pandemic than it was about joining an emerging crowd and gaining political cover.”