Federalism, the Constitution, and COVID-19: The Heart of the Issue

Federalism, the Constitution, and COVID-19: The Heart of the Issue

The national emergency and uncertainty created by COVID-19 has prompted a major national discussion of the roles of citizens, civil society, and federal, state, and local governments. The principles of America’s Founding can help to define these roles, even in a national emergency, as well as protect individual rights and liberties. 

Especially in a republic, where the power resides in the people and is mediated through elected representatives, this issue directly implicates political accountability. During the COVID-19 pandemic, for example, Congress and the Administration are often deemed responsible for decisions and policies, as well as their consequences, that were actually under the authority of state or local government. This experience highlights the lack of basic knowledge, among not only American citizens, but their leaders and the media, about our system of government. Properly evaluating the operation of government, and the performance of our elected leaders, is impossible without such knowledge. As President James Madison put it in his 1810 State of the Union address, “a well-instructed people alone can be permanently a free people.” 

Federalism, properly understood and implemented, is an effective model for responding to the COVID-19 pandemic. It allows flexibility among states to make decisions informed by actual conditions and the impact of policy choices. It also provides a necessary sense of unity when the federal government makes assistance in the form of data, scientific coordination, communication, regulatory relief, and targeted aid available to all states. Though conceived in the 18th century, the American system of federalism is proving able to carry the country through crisis today.

At the same time, in the face of the ongoing pandemic, some state and local government officials have abused the authority granted by the U.S. and state constitutions and state statutes. Public officials from governors and public health officials to bureaucrats, such as school board members, small business regulators, and zoning board members, have exercised control over everyday life that threatens individual liberties. This has included excessively stringent or inconsistently applied restrictions on churches and religious gatherings. In far too many cases, these decisions have displaced what should be the role of individuals, families, and communities to make decisions after weighing the risks. 

While America is facing the COVID-19 pandemic, conflict has escalated over the identity and wisdom of America’s Founding. Peaceful protests for racial justice in May were commandeered by anti-American rioters bent on tearing down the current system and rebuilding cities, states, and even the country under socialism. The very identity and foundation of America is being challenged, along with her Constitution and the structure of government it established.

Key Heritage Research:

  1. John Malcolm and Charles Stimson, “‘Constitution Isn’t Suspended’ for COVID-19, Attorney General Barr Warns Public Officials,” Heritage Foundation Commentary, April 28, 2020.
  2. Katharine Cornell Gorka, “Freedom, If You Can Keep It,” Heritage Foundation Commentary, May 4, 2020.
  3. Joel Griffith and John Malcolm, “State Legislatures Possess the Power to Curtail Shutdown Powers,” Heritage Foundation Commentary, June 9, 2020.
  4. John Malcolm, “In Combating Coronavirus, Trump and Governors Act Constitutionally,” Heritage Foundation Commentary, March 20, 2020.
  5. Bernard Dobski, “America Is a Republic, Not a Democracy,” Heritage Foundation First Principles No. 80, June 19, 2020.
  6. Mike Gonzalez, “In the Coronavirus Crisis, Your Identity Should Be ‘Neighbor,’” Heritage Foundation Commentary, March 19, 2020.

Appendix of Heritage Research:

Doug Badger, “Will Life After COVID-19 Be Normal?” Sun Sentinel, March 8, 2021, https://www.heritage.org/the-constitution/commentary/will-life-after-covid-19-be-normal.

GianCarlo Canaparo and Zack Smith, “Unrelated Amendments in COVID-19 Relief Bill Only Add to Overcriminalization,” The Daily Signal, January 20, 2021, https://www.heritage.org/crime-and-justice/commentary/unrelated-amendments-covid-19-relief-bill-only-add-overcriminalization.

Zack Smith and Hans A. von Spakovsky, “Government Officials and Federal Judges Both Need to Be Reminded That There’s No “Pandemic Exception” to the Constitution, October 19, 2020, https://www.heritage.org/courts/commentary/government-officials-and-federal-judges-both-need-be-reminded-theres-no-pandemic.

Zach Smith and Hans A. von Spakovsky, “7th Circuit Court Stays District Judge’s Order and Provides a Civics Lesson on the Proper Role of Judges,” The Daily Signal, October 18, 2020, https://www.heritage.org/courts/commentary/7th-circuit-court-stays-district-judges-order-and-provides-civics-lesson-the

Charles Stimson and GianCarlo Canaparo, “Michigan Supreme Court Rightly Rebukes Whitmer Over Endless Emergency Power Grabs,” The Daily Signal, October 9, 2020, https://www.heritage.org/crime-and-justice/commentary/michigan-supreme-court-rightly-rebukes-whitmer-over-endless-emergency

Charles Stimson and GianCarlo Canaparo, “COVID-19 Restrictions Ruling, Judge Holds Pennsylvania Governor to the Constitution,” The Daily Signal, September 25, 2020, https://www.heritage.org/the-constitution/commentary/covid-19-restrictions-ruling-judge-holds-pennsylvania-governor-the

GianCarlo Canaparo, Amy Swearerer, and Zack Smith, “CDC’s Unlawful, Unconstitutional Moratorium on Evictions,” The Daily Signal, September 15, 2020, https://www.heritage.org/the-constitution/commentary/cdcs-unlawful-unconstitutional-moratorium-evictions

Hans A. von Spakovsky, “COVID-19 and 2020 Elections in Missouri – Best Practice Recommendations,” Testimony before the Missouri Advisory Committee of the U.S. Commission on Civil Rights, August 27, 2020, https://www.heritage.org/testimony/covid-19-and-2020-elections-missouri-best-practice-recommendations

GianCarlo Canaparo and Emily Mooney, “Calls to Defund Policy Clash With Push to Have Officers Enforce COVID-19 Restrictions,” The Sacramento Bee, August 26, 2020, https://www.heritage.org/crime-and-justice/commentary/calls-defund-police-clash-push-have-officers-enforce-covid-19

GianCarlo Canaparo and Emily Mooney, “Calls to Defund Police Clash with Push to Have Officers Enforce COVID-19 Restrictions,” Heritage Foundation Commentary, August 16, 2020, https://www.heritage.org/crime-and-justice/commentary/calls-defund-police-clash-push-have-officers-enforce-covid-19

Thomas Jipping and Zack Smith, “What’s Problematic About the President’s Extension of Unemployment Benefits,” The Daily Signal, August 13, 2020, https://www.heritage.org/jobs-and-labor/commentary/whats-problematic-about-the-presidents-extension-unemployment-benefits

GianCarlo Canaparo, “State Docket Watch: Elkhorn Baptist Church v. Brown,” Federalist Society Commentary, August 3, 2020, https://fedsoc.org/commentary/publications/state-docket-watch-elkhorn-baptist-church-v-brown.

Thomas W. Spoehr, “Taking Matters Into Your Own Hands and Fighting the Coronavirus,” Heritage Foundation Commentary, July 20, 2020, https://www.heritage.org/public-health/commentary/taking-matters-your-own-hands-and-fighting-the-coronavirus.

Anthony B. Kim, “Young Americans’ Ignorance of Socialism Threatens Our Freedom and Vitality,” Heritage Foundation Commentary, July 24, 2020, https://www.heritage.org/progressivism/commentary/young-americans-ignorance-socialism-threatens-our-freedom-and-vitality.

Mike Gonzalez, “Cancel Culture Tries to Cow Goya Foods’ Bob Unanue,” Heritage Foundation Commentary, July 14, 2020, https://www.heritage.org/progressivism/commentary/cancel-culture-tries-cow-goya-foods-bob-unanue.

Lee Edwards, “As We Navigate Our Modern Revolution, We Must Chose the Right Guide From History,” Heritage Foundation Commentary, July 2, 2020, https://www.heritage.org/conservatism/commentary/we-navigate-our-modern-revolution-we-must-chose-the-right-guide-history.

Katharine Cornell Gorka, “Why We Must Advocate for Better Civics Education in Our Schools,” Heritage Foundation Commentary, July 2, 2020, https://www.heritage.org/education/commentary/why-we-must-advocate-better-civics-education-our-schools.

Kay C. James, “Independence Day Is a Time to Reaffirm That America Must Stay Strong to Preserve Peace,” Heritage Foundation Commentary, July 1, 2020, https://www.heritage.org/defense/commentary/independence-day-time-reaffirm-america-must-stay-strong-preserve-peace.

Jarrett Stepman, “Mob Rule Imperils Western Civilization. Now’s the Time for Courage and Leadership,” Heritage Foundation Commentary, June 29, 2020, https://www.heritage.org/civil-society/commentary/mob-rule-imperils-western-civilization-nows-the-time-courage-and.

J. Christian Adams and Hans A. von Spakovsky, “An All-Mail Election Would Be Dangerous for Democracy,” Heritage Foundation Commentary, June 22, 2020, https://www.heritage.org/election-integrity/commentary/all-mail-election-would-be-dangerous-democracy.

Hans A. von Spakovsky, “During Ebola Pandemic, Liberia Held Political Rallies,” The Daily Signal, June 19, 2020, https://www.dailysignal.com/2020/06/19/during-ebola-pandemic-liberia-held-political-rallies/.

Bernard Dobski, “America Is a Republic, Not a Democracy,” Heritage Foundation First Principles No. 80, June 19, 2020, https://www.heritage.org/american-founders/report/america-republic-not-democracy

Hans A. von Spakovsky, “Michigan Should Not Be Encouraging Mail-In Balloting,” Heritage Foundation Commentary, June 11, 2020, https://www.heritage.org/election-integrity/commentary/michigan-should-not-be-encouraging-mail-balloting.

Joel Griffith and John Malcolm, “State Legislatures Possess the Power to Curtail Shutdown Powers,” Heritage Foundation Commentary, June 9, 2020, https://www.heritage.org/the-constitution/commentary/state-legislatures-possess-the-power-curtail-shutdown-powers.

Lora Ries, “In Hurricane Season and the COVID-19 Response, State and Local Self-Reliance Is Essential,” Heritage Foundation Commentary, June 5, 2020, https://www.heritage.org/homeland-security/commentary/hurricane-season-and-the-covid-19-response-state-and-local-self.

Hans A. von Spakovsky, “Why the Push for an All-by-Mail Election Is Unwise—And Unnecessary,” Heritage Foundation Commentary, May 28, 2020, https://www.heritage.org/election-integrity/commentary/why-the-push-all-mail-election-unwise-and-unnecessary.

Katharine Cornell Gorka, “Why We Need to Reemphasize America’s Founding Principles in Civics Education,” Heritage Foundation Commentary, May 27, 2020, https://www.heritage.org/american-founders/commentary/why-we-need-reemphasize-americas-founding-principles-civics-education.

Allen Guelzo, “Jackson and Wilson Had Nothing on Trump in an Epidemic,” Wall Street Journal, May 26, 2020, https://www.heritage.org/public-health/commentary/jackson-and-wilson-had-nothing-trump-epidemic

Finch, “The Best Way to Craft Liability Protections for the Economy,” The Hill, May 26, 2020, https://thehill.com/opinion/finance/499518-the-best-way-to-craft-liability-protections-for-the-economy.

Thomas W. Spoehr, “A Memorial Day Like No Other in the Era of COVID-19,” Heritage Foundation Commentary, May 22, 2020, https://www.heritage.org/defense/commentary/memorial-day-no-other-the-era-covid-19.

Hans A. von Spakovsky and Zack Smith, “Judges Aren’t Kings. This One Didn’t Get the Memo,” Heritage Foundation Commentary, May 22, 2020, https://www.heritage.org/courts/commentary/judges-arent-kings-one-didnt-get-the-memo.

Thomas Jipping and John Malcolm, “In History of Congress, House Democrats’ New Proxy Voting Is Radical,” Heritage Foundation Commentary, May 20, 2020, https://www.heritage.org/political-process/commentary/history-congress-house-democrats-new-proxy-voting-radical.

Brian E. Finch, “Liability Protections a Must in a Pandemic World,” The Washington Times, May 13, 2020, https://www.washingtontimes.com/news/2020/may/13/liability-protections-must-pandemic-world/.

Paul L. Larkin, Jr., “Suing China Over COVID-19,” Boston University Law Review Online, Vol. 100, No. 91 (2020), https://www.bu.edu/bulawreview/larkin/.

Hans A. von Spakovsky, “Governors Can’t Suspend the First Amendment,” Heritage Foundation Commentary, May 6, 2020, https://www.heritage.org/religious-liberty/commentary/governors-cant-suspend-the-first-amendment.

Thomas W. Spoehr and Brian E. Finch, “2 Presidents, 2 Books, and the Origin and Intent of the Strategic National Stockpile,” Heritage Foundation Commentary, May 5, 2020, https://www.heritage.org/public-health/commentary/2-presidents-2-books-and-the-origin-and-intent-the-strategic-national

Thomas Jipping, “Liberals Try to Use COVID-19 Crisis to Halt Judicial Confirmations,” Heritage Foundation Commentary, May 5, 2020, https://www.heritage.org/courts/commentary/liberals-try-use-covid-19-crisis-halt-judicial-confirmations.

Katharine Cornell Gorka, “Freedom, If You Can Keep It,” Heritage Foundation Commentary, May 4, 2020, https://www.heritage.org/the-constitution/commentary/freedom-if-you-can-keep-it.

Hans A. von Spakovsky and J. Christian Adams, “COVID-19 and Ebola: What We Can Learn from Prior Elections,” Heritage Foundation Issue Brief No. 5066, May 1, 2020, https://www.heritage.org/election-integrity/report/covid-19-and-ebola-what-we-can-learn-prior-elections.

Zack Smith, “Why Filing Bankruptcy Would Be No Quick Fix for States,” Heritage Foundation Commentary, May 1, 2020, https://www.heritage.org/budget-and-spending/commentary/why-filing-bankruptcy-would-be-no-quick-fix-states.

John Malcolm and Charles Stimson, “‘Constitution Isn’t Suspended’ for COVID-19, Attorney General Barr Warns Public Officials,” Heritage Foundation Commentary, April 28, 2020, https://www.heritage.org/the-constitution/commentary/constitution-isnt-suspended-covid-19-attorney-general-barr-warns-public.

James Jay Carafano, “In a Disaster, Who Survives?” Heritage Foundation Commentary, April 24, 2020, https://www.heritage.org/defense/commentary/disaster-who-survives.

Thomas W. Spoehr, “The Unfolding Debate About America’s Response to Coronavirus,” Heritage Foundation Commentary, April 23, 2020, https://www.heritage.org/public-health/commentary/the-unfolding-debate-about-americas-response-coronavirus

Zack Smith and GianCarlo Canaparo, “Why COVID-19 Spitters Shouldn’t Be Prosecuted as Federal Terrorists,” Heritage Foundation Commentary, April 20, 2020, https://www.heritage.org/crime-and-justice/commentary/why-covid-19-spitters-shouldnt-be-prosecuted-federal-terrorists.

Hans A. von Spakovsky and J. Christian Adams, “America’s Hidden Voting Epidemic? Mail Ballot Failures,” Fox News, April 17, 2020, https://www.foxnews.com/opinion/voting-epidemic-mail-ballot-failures-christian-adams-hans-von-spakovsky.

Hans A. von Spakovsky and Susan Greenhalgh, “COVID-19 Must Not Push U.S. to Dangerous Online Voting,” Heritage Foundation Commentary, April 17, 2020, https://www.heritage.org/election-integrity/commentary/covid-19-must-not-push-us-dangerous-online-voting.

Hans A. von Spakovsky and John Malcolm, “Can the President Adjourn Congress and Make Appointments Without Senate Confirmation?” Heritage Foundation Commentary, April 17, 2020, https://www.heritage.org/political-process/commentary/can-the-president-adjourn-congress-and-make-appointments-without.

GianCarlo Canaparo, “Can States Restrict Travelers From Other States?” Heritage Foundation Commentary, April 10, 2020, https://www.heritage.org/crime-and-justice/commentary/can-states-restrict-travelers-other-states.

Elizabeth Slattery and Thomas Jipping, “Faith-Filled Americans, Please Stay Home,” Heritage Foundation Commentary, April 8, 2020, https://www.heritage.org/religious-liberty/commentary/faith-filled-americans-please-stay-home.

GianCarlo Canaparo and Zack Smith, “We Don’t Need Terrorism Charges to Prosecute Those Who Cough to Spread COVID-19,” Heritage Foundation Commentary, April 7, 2020, https://www.heritage.org/crime-and-justice/commentary/we-dont-need-terrorism-charges-prosecute-those-who-cough-spread-covid.

Lee Edwards, “Presidential Prayers: Turning to God in Times of Need,” Heritage Foundation Commentary, April 6, 2020, https://www.heritage.org/religious-liberty/commentary/presidential-prayers-turning-god-times-need

Paul J. Larkin, Jr., “Don’t Expect Perfection in Government’s COVID-19 Treatment Statements,” Heritage Foundation Commentary, April 4, 2020, https://www.heritage.org/public-health/commentary/dont-expect-perfection-governments-covid-19-treatment-statements.

Hans A. von Spakovsky, J.Christian Adams, and Cleta Mitchell, “Coronavirus and Elections—Changes Increase Risk of Voter Fraud,” Heritage Foundation Commentary, April 2, 2020, https://www.heritage.org/election-integrity/commentary/coronavirus-and-elections-changes-increase-risk-voter-fraud.

Amy Swearer, “COVID-19 and 2nd Amendment: 3 Things to Know,” Heritage Foundation Commentary, April 1, 2020, https://www.heritage.org/firearms/commentary/covid-19-and-2nd-amendment-3-things-know.

J. Christian Adams and Hans A. von Spakovsky, “Vote-by-Mail Makes Fraud and Errors Worse,” The Washington Times, March 31, 2020, https://www.washingtontimes.com/news/2020/mar/31/vote-by-mail-for-2020-election-will-make-fraud-and/.

Lee Edwards, “In Coronavirus Crisis, Let’s Remember the Forgotten Americans,” Heritage Foundation Commentary, March 30, 2020,  https://www.heritage.org/civil-society/commentary/coronavirus-crisis-lets-remember-the-forgotten-americans

Lee Edwards, “5 Examples of How the Conservative Movement Is Leading the Way,” Heritage Foundation Commentary, March 30, 2020, https://www.heritage.org/conservatism/commentary/5-examples-how-the-conservative-movement-leading-the-way

Dakota L. Wood, “Pandemic in 2020: Dark Times Lead to Brighter Days,” Heritage Foundation Commentary, March 27, 2020, https://www.heritage.org/public-health/commentary/pandemic-2020-dark-times-lead-brighter-days

Hans A. von Spakovsky, “Coronavirus Is No Reason for the Feds to Take Over the Election Process,” Heritage Foundation Commentary, March 27, 2020, https://www.heritage.org/election-integrity/commentary/coronavirus-no-reason-the-feds-take-over-the-election-process.

Hans A. von Spakovsky and J. Christian Adams, “Avenues to Voter Fraud Have No Place in Coronavirus Bill,” Heritage Foundation Commentary, March 25, 2020, https://www.heritage.org/election-integrity/commentary/avenues-voter-fraud-have-no-place-coronavirus-bill.

Charles Stimson and David B. Rivkin, Jr., “A Constitutional Guide to Emergency Powers,” Heritage Foundation Commentary, March 21, 2020, https://www.heritage.org/the-constitution/commentary/constitutional-guide-emergency-powers.

John Malcolm, “In Combating Coronavirus, Trump and Governors Act Constitutionally,” Heritage Foundation Commentary, March 20, 2020, https://www.heritage.org/the-constitution/commentary/combating-coronavirus-trump-and-governors-act-constitutionally.

Lee Edwards, “The Legacy of Americans in a Time of Crisis,” Heritage Foundation Commentary, March 20, 2020, https://www.heritage.org/civil-society/commentary/the-legacy-americans-time-crisis.

Hans A. von Spakovsky, “‘Panic in the Streets’: Life Imitates Art with Coronavirus,” Heritage Foundation Commentary, March 19, 2020, https://www.heritage.org/public-health/commentary/panic-the-streets-life-imitates-art-coronavirus.

Mike Gonzalez, “In the Coronavirus Crisis, Your Identity Should Be ‘Neighbor,’” Heritage Foundation Commentary, March 19, 2020, https://www.heritage.org/civil-society/commentary/the-coronavirus-crisis-your-identity-should-be-neighbor

Hans A. von Spakovsky, “Can Trump Use Coronavirus to Delay 2020 Election?” Heritage Foundation Commentary, March 18, 2020, https://www.heritage.org/election-integrity/commentary/can-trump-use-coronavirus-delay-2020-election.

Elizabeth Slattery, “Here’s How the Courts Are Coping with the Coronavirus,” The Daily Signal, March 16, 2020, https://www.dailysignal.com/2020/03/16/heres-how-the-courts-are-coping-with-the-coronavirus/.

Kevin Pham, MD, “Our Efforts to Fight Coronavirus Require Individual Responsibility,” Heritage Foundation Commentary, March 16, 2020, https://www.heritage.org/public-health/commentary/our-efforts-fight-coronavirus-require-individual-responsibility

Kay C. James, “U.S. Government and Politicians Must Unite to Fight the Coronavirus,” Heritage Foundation Commentary, March 11, 2020, https://www.heritage.org/public-health/commentary/us-government-and-politicians-must-unite-fight-the-coronavirus.

Brian E. Finch, “Cyber Planners Should Be Carefully Watching the Coronavirus,” The Hill, March 2, 2020, https://thehill.com/opinion/cybersecurity/485391-cyber-planners-should-be-carefully-watching-the-coronavirus.


COVID-19: Lessons Learned and Path Ahead