Are We Entering a New Era of State Nullification?

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Map of the COVID-19 outbreak in the United States as of March 24, 2020. (Wikimedia Commons)

When historians look back at “the coronavirus crisis of 2020,” they’re likely to focus on the spread of the disease, the economic dislocation it caused and how the federal government responded to it. Predictably, and depending on the depth and duration of the dislocation, the current moment will be labeled as either the “end of an era” or the beginning of a new one.

But at some point in the future, you can be sure, more nuanced thinkers will likely adjudge our current crisis as a piece with those that preceded it: of how, when it comes to American history, the more things change the more they actually stay the same.

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This was vividly displayed over the last two weeks, as a gaggle of state governors complained that the federal government had failed to provide a unified, coordinated and national response to the crisis. “It’s the wild west out there,” Illinois Governor J.B. Pritzker said, while a second group pushed back against federal guidelines on what policies they should adopt in dealing with Covid-19–with a chorus of southern states leading the way. 

First among them was Alabama, where, on March 26, Governor Kay Ivey dismissed the idea of a statewide stay-at-home order, emphasizing Alabama’s uniqueness, while channeling Lost Cause notions that the Enlightenment was hatched somewhere near Montgomery. “Y’all,” Ivey pronounced, in an unmistakable drawl, “we are not Louisiana, we are not New York state, we are not California.”

Ivey could not have been more right: compared to Louisiana, New York and California, Alabama’s educational system is a shambles (dead last on the U.S. News and World Report education rankings), its healthcare infrastructure among the worst in the nation (42nd according to one authoritative survey), and in the lower tier (45th of 50) in economic opportunity–with over 17 percent of its citizens living at or below the poverty line. Compared to Alabama, New York is Xanadu. 

But comparing a state’s unwillingness to adopt federal guidelines on Covid-19 to its ranking on education, health and economic indicators is a tricky business. While Alabama, Mississippi, Georgia, Florida and South Carolina (the heart of the Old Confederacy and the reddest of America’s red states), led the parade of skeptics on Washington’s vaunted social distancing guidelines, South Dakota, Wyoming, Iowa, Nebraska and Utah showed the same reticence. 

In a better-late-than-never nod to the prospect of digging mass graves in downtown parks, each of those states has since adopted more stringent social distancing policies, but disagreements over just how far the federal government’s writ extends has served as a reminder of America’s wobbly political arrangements. As Douglas Egerton, a nationally known and prominent historian at LeMoyne College points out, the question is whether the United States is “a patchwork quilt of sovereign states,” or a single nation in which states are granted only those “powers not delegated” to the central government, as the Constitution’s Tenth Amendment says.  

For instance, when Donald Trump suggested on March 28 that he was considering quarantining New York and parts of New Jersey and Connecticut, the “hotspots” of the virus, New York Governor Andrew Cuomo responded with a pointed historical reference: “This is a civil war kind of discussion,” he told reporters. “I don’t believe that any administration could be serious about physical lockdowns of states.”

The New York governor (who would likely recoil from being called a “states righter”) went on to note that such a lockdown would constitute a “federal declaration of war,” thereby confirming that he knows his history–even if he didn’t cite the major “nullification” controversies that have provided a political petri dish for when states have defied federal orders. 

The first such nullification controversy was sparked in 1832, when the Congress passed a tariff that protected northern manufacturers at the expense (southern states argued) of planters and farmers. South Carolina’s legislature responded by passing an Ordinance of Nullification that declared the tariff null and void in the state. President Andrew Jackson struck back, threatening to send federal troops to enforce the tariff. A conflict was avoided when the Congress passed a revised tariff that soothed South Carolina’s concerns. 

But the American Civil War provided the ultimate nullification crisis that was only resolved by force. “In seceding, South Carolina and other states basically nullified the election of 1860,” Egerton says. But even then, it seems, the issue of who governs remained unresolved. In 1957, Governor Orval Faubus ordered the Arkansas National Guard to bar black students from entering Little Rock’s Central High–nullifying the 1954 Supreme Court Brown v. Board of Education decision. President Eisenhower responded by putting the Arkansas National Guard under federal control and sending 1,000 paratroopers of the 101st Airborne Division to Little Rock to enforce the law. 

Of course, the pandemic of 2020 is not the American Civil War. But the question of “who governs” is as pertinent now as it was in 1860. In 2001, during a one-and-a-half day simulation that tested federal responses to a bioweapons attack (which I have written about elsewhere), the stand-in “national security council” nearly dissolved over the question of whether the president (played by Senator Sam Nunn) could enforce a quarantine of Oklahoma, where the outbreak was first detected. In an amazingly prescient exchange, Tom Keating, playing Oklahoma’s governor at the same time he actually was its governor, turned on Nunn in an Andrew Cuomo-like moment:

“My fellow governors are not going to permit you to make our states leper colonies. We’ll determine the nature and extent of the isolation of our citizens…You’re going to say that people can’t gather. That’s not your [the federal government’s] function. That’s the function, if it’s the function of anybody, of state and local officials.” 

The simulation was now more than a simple exercise: “We’re going to have absolute chaos if we start having war between the federal government and the state government,” Nunn observed. 

A war between federal and state governments? Policymakers point out that states regularly practice nullification–in declaring sanctuary cities, in chipping away at Roe v. Wade, in legalizing marijuana. But refusing to enforce federal laws is not always the same as defying them. Donald Trump seems vaguely aware of this, promoting a federal guidance on social distancing without mandating it, perhaps out of fear that doing so would spark defiance among his core supporters, like red state governor Kay Ivey. 

“We have a thing called the Constitution,” Trump says. “I want the governors to be running things.” And so they are, with states like Alabama, Mississippi, Georgia and South Carolina (the last of the South’s red states to announce a stay-at-home order), enforcing pretty-please policies that the federal government recommends, but will not require–a kind of nullification in reverse. 

The result, according to the preponderance of medical officials, is that America is not waging a single war against a common enemy, but is waging fifty different wars against a virus that knows no borders. It’s because of that, the lack of coordination from a single authority, that the Disunited States of America could actually lose its coronavirus struggle. 

“Not having a national strategy where there is one policy for the country as opposed to a patchwork based on whomever the governor is,” Michigan’s Gretchen Whitmer says, “is something that I think is creating a more porous situation where Covid-19 will go longer and more people will get sick.” The inimitable, and now celebrated face of the administration’s fight against the virus, Dr. Anthony Fauci, has made it clear that he agrees. “Doesn’t everybody have to be on the same page with this stuff?” he asked. 

The answer is “no.” And it is because of that that governors have taken matters into their own hands: traffic checkpoints have been erected between Texas and Louisiana, and between New York and Rhode Island (until Andrew Cuomo sweet-talked Rhode Island into taking them down), and Florida law enforcement officials have been directed by the Governor Ron DeSantis to stop vehicles entering the state from New Yorkto urge Empire State natives to self-isolate. The DeSantis order came even as he refused to put in place his own statewide lockdown. Trump defended the action: “He doesn’t want people coming in who are not to the liking of the doctors,” he explained.

Perhaps, but many New Yorkers heard a different message: that Floridians believe that the price of being cosmopolitan, worldly and international (which is what made New York a hotspot to begin with), is that you’re likely to end your life on a respirator. And finally, and just last week, western governors, absent a coherent federal program, considered banding together to shape a regional response to the coronavirus threat–a kind of confederacy in waiting.   

The truth of this, however, might be much more sobering. It’s possible that the bitter sniping between the federal government and the states probably has nothing to do with politics–despite the fact that fifteen of the 21 states with the most stringent state-at-home orders are led by democratic governors. In fact, the divide here is not between Republicans and Democrats, or red states and blue. The divide is much deeper, and more disturbing. It’s between empty streets and packed churches–between those who believe in science and those who don’t. The result is plain for everyone to see: that after more than two centuries of constitutional governance, our national motto remains more of a hope than a reality. 

E pluribus? Absolutely. Unum? Not so much. 

Mark Perry is a journalist, author, and contributing editor at The American Conservative. His latest book is The Pentagon’s Wars. He tweets @markperrydc.


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