The twentieth century in the United States can certainly be characterized by the massive increase in federal solutions to right every wrong, correct every injustice, and fix every problem, real or imaginary. This mentality is what gave us things like the New Deal, Social Security, Prohibition, the Fair Labor Standards Act, the Civil Rights Act, the Fair Deal, the Great Society, the War on Poverty, the War on Drugs, Medicare, and Medicaid. Unfortunately, much of this is still with us.
With the coming of the COVID- 19 pandemic in 2020, the 50 states reasserted themselves as problem solvers, but not in a good way. Governors, mayors, county commissioners, and city councilmen enacted draconian lockdowns, quarantines, face mask requirements, the closure of “unessential” businesses, bans on indoor dining, the closing of schools, stay-at-home orders, contract tracing, curfews, capacity limits on stores and restaurants, the canceling of concerts and sporting events, social distancing requirements, prohibitions on weddings and funerals, vaccine mandates, and the closure of bars, churches, theaters, amusement parks, and casinos.
Compared to the actions of the states, the federal government’s role at the beginning of the pandemic almost seems benign. The federal government initially did what it does best: hand out money. The Coronavirus Aid, Relief, and Economic Security (CARES) Act gave $1,200 to each adult, plus an additional rebate of $500 per qualifying child. The Tax Relief Act gave every adult $600, plus another $600 per qualifying child. The third COVID-19 stimulus package passed by the U.S. Congress was the American Rescue Plan Act (ARPA). It provided adults with a maximum “recovery rebate” of $1,400 per eligible individual, plus an additional $1,400 per qualifying child.
But, of course, the federal government did not stop there. President Biden repeatedly promised on the campaign trail that he was going to “shut down the virus.” Soon after Biden took office, on January 29, 2021, the Centers for Disease Control and Prevention (CDC) instituted a face mask mandate for all people while on public transportation (airplanes, trains, subways, buses, taxis, ride-shares, maritime transportation, trolleys, cable cars) or at transportation hubs (commercial airports, bus terminals, commercial vessel terminals, train and subway stations, seaports, U.S. ports of entry, dedicated ride-share pick-up locations).
Throughout 2021, the federal government did everything it could to promote and mandate the COVID-19 vaccine. Biden’s “Path out of the Pandemic,” issued on September 9, maintained that his administration would “continue to use every tool necessary to protect the American people from COVID-19.” Additional actions were announced in December “to combat COVID- 19 as the United States headed into the winter months.
Biden’s statements
But then Biden made two brief statements that seemed to negate everything that the federal government was doing. In late December, Biden spoke with state governors on a call regarding potential strategies to manage the continued impact of COVID-19. After White House COVID coordinator Jeff Zients cleared the press from the room, Biden took questions from several governors. Arkansas governor Asa Hutchinson, a Republican, chairman of the National Governors Association, spoke about challenges his state was experiencing in responding to the pandemic: “And so one word of concern or encouragement for your team is that as you look towards federal solutions that will help alleviate the challenge, make sure that we do not let federal solutions stand in the way of state solutions.” Biden then surprisingly said that “there is no federal solution” to the COVID-19 pandemic and declared that it “gets solved at the state level,” before he boarded a helicopter and departed for his home state of Delaware.
Democrats were aghast. Had not Biden promised to “shut down the virus?” Had not Biden criticized former President Donald Trump for leaving the states to manage things on their own? Had not Biden often criticized Republican governors who developed their own strategies and bucked his sweeping federal mandates, even telling them to “get out of the way?” Had not Biden, via the federal Occupational Health and Safety Administration (OSHA), tried to mandate that businesses force their employees to get vaccinated?
“What a pathetic excuse for a leader,” one liberal commenter wrote on Twitter, claiming that Biden is “leaving us all to die.” Former Clinton adviser Peter Daou quoted Biden’s comments and summarized them as “Biden gives up.”
Democratic commissioner Tami Sawyer lamented: “This makes me both angry and sad. Knowing what this means in Tennessee. Knowing what this means across the South. Knowing what this means for poor people, disabled people, Black and brown people. I just … am beyond disappointment.”
Democrat congressional candidate Rebecca Parson opined, “Who’s responsibility is it to keep Americans alive? Love how this is treated as a shell game with federal, state, county, and city government all blaming each other. Meanwhile 817,000 Americans are dead of COVID.”
Film critic and journalist Carolyn Hinds wrote: “This man really told Americans to fend for themselves, then took a helicopter to his beach house that’s far away from the public…. Soulless ghoul.”
Republicans were quick to capitalize on Biden’s comments. South Dakota governor Kristi Noem, who enacted fewer COVID-19 restrictions during the pandemic than probably any other governor, was one of the first to go after Biden: “After a year, we finally agree @potus. The federal government isn’t the solution. That’s why from the start, SD took a different approach by trusting our citizens to be responsible and make the right decisions for themselves & their families. Now rescind all the federal mandates.”
Arkansas senator Tom Cotton, a Republican, expressed a similar conclusion: “When Joe Biden says ‘there is no federal solution,’ he’s trying to avoid blame for his incompetence. If he really believes this, he should rescind his unconstitutional federal mandates.” Texas representative Chip Roy, a Republican, proclaimed that the president “finally got something right.”
Well, did he? Did Biden finally get something right? Is there “no federal solution” to the COVID-19 pandemic? Does the pandemic get “solved at the state level?” These questions lead to even deeper questions. Should there be no federal solutions to any problems? Should all problems be solved at the state level? Although he never intended it that way, what Biden said was profound and has far-reaching implications.
Federalism
The Constitutional Convention that met in Philadelphia from May 25 to September 17, 1787, submitted the proposed Constitution to the Confederation Congress, which submitted it to the states for ratification at the end of September 1787. Articles soon afterward appeared in the New York press criticizing the proposed Constitution. Alexander Hamilton (1757–1804), who had attended the Convention as a delegate from New York, then undertook an explanation and defense of the proposed Constitution to the people of the state of New York in collaboration with James Madison (1751–1836), the future fourth president who attended the Convention as a delegate from Virginia, and, to a lesser extent, John Jay (1745–1829), the future first Chief Justice of the United States.
A total of 85 essays were published in New York newspapers from October 27, 1787, to May 28, 1788 — all under the pseudonym Publius, a reference to the Roman statesman Publius Valerius Publicola — to promote the ratification of the proposed Constitution. The importance of the essays as an authoritative commentary on the Constitution was recognized early, and they were published as The Federalist.
Yet, as George W. Carey and James McClellan write in their introduction to the Liberty Fund edition of The Federalist: “It is impossible to know with certainty, of course, what impact The Federalist had in securing New York’s acceptance of the proposed Constitution, but we do know that it had virtually no effect on the ratification and final adoption of the Constitution.” Nevertheless, The Federalist soon became, and remains, “clearly the most significant, if not the only meaningful, resource for understanding the intent of the Framers other than the words of the Constitution itself.”
Two of the most important essays in The Federalist were written by James Madison — the Father of the Constitution. Although they were written over 200 years ago, these two essays relate directly to Biden’s statements about federal and state solutions.
In The Federalist, No. 45, the functions of the federal and state governments under the Constitution are explained:
Several important considerations have been touched in the course of these papers, which discountenance the supposition that the operation of the federal government will by degrees prove fatal to the State governments. The more I revolve the subject, the more fully I am persuaded that the balance is much more likely to be disturbed by the preponderancy of the last than of the first scale.
The State government will have the advantage of the Federal government, whether we compare them in respect to the immediate dependence of the one on the other; to the weight of personal influence which each side will possess; to the powers respectively vested in them; to the predilection and probable support of the people; to the disposition and faculty of resisting and frustrating the measures of each other. The State governments may be regarded as constituent and essential parts of the federal government; whilst the latter is nowise essential to the operation or organization of the former.
The powers delegated by the proposed Constitution to the Federal Government, are few and defined. Those which are to remain in the State Governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will for the most part be connected. The powers reserved to the several States will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties and properties of the people; and the internal order, improvement, and prosperity of the State.
The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments, in times of peace and security. As the former periods will probably bear a small proportion to the latter, the State governments will here enjoy another advantage over the federal government. The more adequate, indeed, the federal powers may be rendered to the national defense, the less frequent will be those scenes of danger which might favor their ascendancy over the governments of the particular States. If the new Constitution be examined with accuracy and candor, it will be found that the change which it proposes consists much less in the addition of NEW POWERS to the Union, than in the invigoration of its ORIGINAL POWERS.
Madison continued his subject in The Federalist, No. 46:
The federal and State governments are in fact but different agents and trustees of the people, constituted with different powers, and designed for different purposes.
It has been already proved that the members of the federal will be more dependent on the members of the State governments, than the latter will be on the former.
It has appeared also, that the prepossessions of the people, on whom both will depend, will be more on the side of the State governments, than of the federal government. So far as the disposition of each towards the other may be influenced by these causes, the State governments must clearly have the advantage. But in a distinct and very important point of view, the advantage will lie on the same side. The prepossessions, which the members themselves will carry into the federal government, will generally be favorable to the States; whilst it will rarely happen, that the members of the State governments will carry into the public councils a bias in favor of the general government. A local spirit will infallibly prevail much more in the members of Congress, than a national spirit will prevail in the legislatures of the particular States.
Were it admitted, however, that the Federal government may feel an equal disposition with the State governments to extend its power beyond the due limits, the latter would still have the advantage in the means of defeating such encroachments. If an act of a particular State, though unfriendly to the national government, be generally popular in that State and should not too grossly violate the oaths of the State officers, it is executed immediately and, of course, by means on the spot and depending on the State alone. The opposition of the federal government, or the interposition of federal officers, would but inflame the zeal of all parties on the side of the State, and the evil could not be prevented or repaired, if at all, without the employment of means which must always be resorted to with reluctance and difficulty.
On summing up the considerations stated in this and the last paper, they seem to amount to the most convincing evidence, that the powers proposed to be lodged in the federal government are as little formidable to those reserved to the individual States, as they are indispensably necessary to accomplish the purposes of the Union; and that all those alarms which have been sounded, of a meditated and consequential annihilation of the State governments, must, on the most favorable interpretation, be ascribed to the chimerical fears of the authors of them.
The United States was set up as a federal system of government where the states, through the Constitution, granted a limited number of powers to a central government — not the other way around. The states had been in existence as independent, sovereign colonies for many, many years before the ratification of the Constitution. Federalism is simply the division of power between the national and state governments. Articles I through III of the Constitution delegate, not surrender, certain powers to the three branches of the national government. There are about 30 enumerated congressional powers listed throughout the Constitution. Everything else is reserved to the states — even without the addition of the Bill of Rights and its Tenth Amendment. The nature of the U.S. government under the Constitution demands that there be no federal solution to any problem. Everything is to be solved at the state level. To support a federal solution to any issue is to oppose the Constitution and the federal system of government of the United States.
Federal overreach
There are a number of issues where the federal government has so clearly and plainly violated the Constitution by its solutions that it boggles the mind that anyone — Democrat, Republican, liberal, progressive, moderate, or conservative — would defend its actions.
The drug war. Because the Constitution doesn’t authorize the federal government to regulate or prohibit the manufacturing, buying, selling, or using of any drug, the drug war must be fought on the state level.
Education. Because the Constitution doesn’t authorize the federal government to have anything to do with education, all education funding must be provided on the state level.
Health care. Because the Constitution doesn’t authorize the federal government to have anything to do with health care, Medicare and Medicaid must be eliminated and all health care funding must be provided on the state level.
Welfare programs. Because the Constitution doesn’t authorize the federal government to provide welfare programs, all such programs must be eliminated and limited to the state level.
Federal grants. Because the Constitution doesn’t authorize the federal government to issue grants for art, science, culture, and the humanities, all such grants must be eliminated and limited to the state level.
Federal subsidies. Because the Constitution doesn’t authorize the federal government to subsidize housing, agriculture, or any particular segment of the economy or society, all such subsidies must be eliminated and limited to the state level.
Discrimination laws. Because the Constitution doesn’t authorize the federal government to punish or seek to prevent acts of discrimination, the Equal Employment Opportunity Commission (EEOC) must be abolished and any such laws limited to the state level.
Gambling laws. Because the Constitution doesn’t authorize the federal government to regulate or prohibit gambling, all federal gambling laws must be repealed and any such laws limited to the state level.
Minimum wage. Because the Constitution doesn’t authorize the federal government to set a minimum wage, any minimum wage must be set at the state level.
If this all sounds so simple, it is because it is. It doesn’t matter how much anyone desires the federal government to do these things. They have simply not been delegated to the federal government by the Constitution. If there is to be a war on drugs, government funding of education and health care, government welfare programs, government grants and subsidies, discrimination laws, gambling laws, and a minimum wage, then these things must be instituted at the state level. This, of course, does not mean that they are desirable, and, in fact, all of them are antithetical to the principles of liberty, even at the state level.
Federalism is part and parcel of the very fabric of the Constitution and the limited government established by the Founders. A strict adherence to federalism is essential to reining in the out-of-control federal government and restoring the liberties of the American people.
Joe Biden was right. There is no federal solution.
This article was originally published in the April 2022 edition of Future of Freedom.