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The COVID-19 pandemic created an unprecedented need for governance by a multiplicity of authorities. The nature of the pandemic—globally communicable, uncontrolled, and initially mysterious—required a coordinated response to a common problem. But the pandemic was superimposed atop our existing decentralized and uncoordinated governance structures, and the result was devastating: the United States led the world in COVID-19 infections and deaths. COVID-19’s effects have been particularly destructive for communities of color, women, and intersectional populations.

This Article makes sense of the early pandemic response by distilling a typology for the predominant intergovernmental relationships that emerged, some conflictual and some collaborative. Governments undermined each other by destabilizing each other’s actions upward (when local governments undermined states), downward (when the federal government undermined states), and across (when the federal government undermined itself). They abdicated responsibility by failing to act. Governments collaborated by actively working together to harmonize policies. And they engaged in bandwagoning to avoid being the first mover in making pandemic policy, opting instead to follow or oppose the leads of others.

Despite the seeming chaos of the early pandemic response, these behaviors were the predictable result of well-worn structural and political dynamics. Structurally, pandemic policy lies uncomfortably on two poles of the federal-state division of responsibilities. Ambiguous hierarchies and overlapping policy roles pushed governments toward conflict rather than coordination. Politically, intense partisanship transformed nearly every governance decision into symbolic, two-sided battles, providing a default set of relationships that became organizing principles for the early pandemic response.

This Article uses these insights to sketch the contours of a way forward. It proposes a federal pandemic statute that emphasizes role clarity, state independence, and explicit governmental action to disrupt inequality. It additionally advocates for decentralized but inclusive subject-matter networks among federal, state, and local authorities to lessen the pull of partisanship.


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7 Sep 2022
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  • Subject
    • Disaster Law

    • Health Law and Policy

    • Politics

    • State and Local Government Law

  • Journal title
    • Boston College Law Review

  • Volume
    • 63

  • Issue
    • 6

  • Pagination
    • 1949

  • Date submitted

    7 September 2022