Cooperation and Conflict in State and Local Innovation During COVID-19

Abstract

This essay discusses how scholarship on state politics and policy, intergovernmental relations, and federalism provides necessary context for understanding governmental responses to COVID-19. It also highlights how observing those responses can further push the bounds of existing scholarship and theory regarding policy innovation and cooperative and conflictual federalism. It argues that there is a space for mutual learning and sharing between scholars and practitioners.

Keywords

Federalism Coronavirus preemption policy diffusion

The spread of SARS-Cov-2 (COVID-19) has laid bare, in stark terms, both the cooperative and conflictual aspects of the American federal system. The pandemic has amplified trends that scholars have been noting for years (Benton, 2018; Bowman & Kearney, 2007). Interactions between the states and national government illustrate the concern that contentious intergovernmental relations, while not new, have become wide-ranging (Burke & Brudney, 2018). Commentators both decried and praised federalism as the crisis unfolded, the national government faltered in its leadership, and governors moved in different directions in their responses. New York Governor Andrew Cuomo has been praised for his strong and visible response to the outbreak in the New York metropolitan area (Luscombe, 2020), though was also criticized for a lack of preparedness and slow initial response (J. D. Goodman, 2020). Whereas, Governor Ron DeSantis has received scorn for a slow response in closing Florida’s beaches and moving quickly to reopen Florida’s entertainment economy and schools (Turner, 2020). And Americans were paying attention. Some governors like Newsom (D-CA), Cuomo (D-NY), McMaster (R-SC), and DeWine (R-OH) received high marks from their constituents, whereas others like DeSantis (R-FL) have lost support, and two, Ige (D-HI) and Noem (R-SD), have less than 50% support for their response to the crisis (Lazer et al., 2020; Mehta, 2020). Scholarship on state politics and policy, intergovernmental relations, and federalism has much to offer in understanding governmental reactions to COVID-19. In addition, state and local government responses to COVID-19 offer new avenues of scholarly inquiry, as they surface dynamics that are not yet well understood or accounted for in prevailing theories.

This viewpoint article addresses both cooperation and conflict among state and local governments during the early days of the COVID-19 pandemic and the implications for research on federalism, policy diffusion, and intergovernmental relations. I begin by discussing the mechanisms for collaboration, both existing and newly emerged, that have played important roles during state and local government responses to COVID-19. I then turn to discussing the potential for sturdier compacts for addressing infectious disease. Finally, I discuss state–local relations, particularly the use of ceiling preemption of local governments by states and the tension over policing powers. In each section, I will discuss how scholars have been discussing these phenomena that surfaced in the COVID-19 response for many years and how that knowledge could be useful to frontline administrators, as they manage emerging threats like global pandemics.

Mechanisms for Collaboration

Vertical and horizontal cooperation are hallmarks of the COVID-19 crisis and American federalism broadly speaking. Although the power and responsibilities of the national government has increased since the founding, the states still retain sovereignty and substantial power, including “the authority to provide for the public health, safety, and morals” of their citizens (Barnes v. Glen Theatre 501 U.S. 560, 569, 1991). In times of domestic crisis, the national government often provides leadership and resources, but states, and particularly their governors, are still very much in the driver’s seat. In terms of implementing federal policy, states can fall in line, but they can also defy, bargain, and renegotiate (Hill & Weissert, 1995). Horizontally, state and local governments learn from or imitate each other as well as compete (Einstein et al., 2019; Karch, 2007; Mallinson & Hannah, 2020). Learning, imitation, and competition were all present in state responses to COVID-19 (Shipan & Volden, 2020). Increasingly, scholars of American federalism have noted that governmental action is fragmenting due to party polarization and federal gridlock that pushes decisions to the states (Bowling & Pickerill, 2013; Rose & Bowling, 2015). Although there is also the notion that we are in a period of coercive federalism where the federal government is the dominant policy maker (Kincaid, 2018), the absence of federal leadership during the early COVID-19 pandemic, however, pushed the trend of fragmentation to the fore and resulted in a variety of feedback effects. Karch and Rose (2019) argue that the variation in state feedback to federal policy can be explained by the interaction between policy design and state context. Interstate collaborations that emerged during COVID-19, such as the Western States Pact, are one such policy feedback in response to both federal action (e.g., the seizure of personal protective equipment [PPE]) and inaction (e.g., inconsistent leadership). Thus, COVID-19 provides an opportunity to further study the sources of variation in policy feedback in the states.

Marijuana and COVID-19

Although there are now several interstate collaborations, it is instructive to examine the first and what it means for the studies of policy diffusion and federalism. Frequency of contact, interdependence, and mutual benefit are three factors that contribute to intergovernmental collaboration (Agranoff, 2012). All three were present in the first multistate collaboration to emerge during COVID-19. As New York became an epicenter of the outbreak, the governors of New York, New Jersey, Connecticut, and Pennsylvania quickly partnered to coordinate actions such as closing bars, restaurants, schools, and more. The states are interdependent in many ways but particularly due to the high potential for cross-border spillovers if their public health measures differed. For example, if New York ordered its bars closed, but Connecticut did not, New Yorkers could cross the border to go out (Jaeger, 2020). Preventing such spillovers is necessary to limit the spread of infectious diseases. Diffusion scholars have long recognized that large border populations and cross-border media markets are important drivers of policy diffusion because of spillovers (Berry & Baybeck, 2005; Pacheco, 2012). In the case of NY-NJ-CT-PA, states cooperated to prevent spillovers, like those that ultimately occurred when Pennsylvania shuttered its liquor stores, but Ohio and Maryland did not (Fitzgerald, 2020; Mullins, 2020).

This cross-state partnership rapidly emerged from an unlikely source—past contact among the governors during a marijuana legalization summit. In October 2019, governors from the four states met to discuss marijuana legalization in the region (Jager, 2019). They sought a unified approach toward legalizing adult-use marijuana in their states. The governors realized that a piecemeal approach would lead to bad outcomes for their citizens, meaning there was mutual benefit of a coordinated response. Connecticut Governor Ned Lamont specifically decried the “patchwork quilt” approach already taken to legalization in 11 states. Furthermore, New York and New Jersey were both coming off failed attempts to legalize recreational marijuana earlier that year and were looking for a politically viable path forward in 2020. The states sought to develop a common tax structure that would prevent negative spillovers and the potential for a race-to-the-bottom, social equity measures (key contributors to the failures of legalization in New York and New Jersey), and public safety standards for police.

Governor Cuomo was quick to cite this past, and completely unrelated, collaborative effort as the basis for regional cooperation on COVID-19. Speaking about the difficulty of state partnerships, Cuomo stated,

Luckily we have set a template where our regional states work together. Many of you [reporters] came to our regional meeting on marijuana laws. I have a good relationship that I’ve developed with the surrounding governors. We have actually deployed that here. (Jaeger, 2020)

New York, New Jersey, and Connecticut announced a synchronized action plan on March 16 for closing bars and restaurants, schools, movie theaters, gyms, and casinos in response to COVID-19 (Cuomo, 2020a). Cuomo had expressed a desire to bring Pennsylvania Governor Tom Wolf into the fold, which occurred 2 days later (Cuomo, 2020b).

The Governors further leveraged this partnership to resist a possible federal quarantine. On March 28, President Trump floated the idea of quarantining the New York metropolitan area, given the intensity of infection activity. A flurry of calls between the Governor’s staff and the national government resulted in a far less stringent travel advisory issued by the Centers for Disease Control and Prevention (Pazniokas, 2020). In April 2020, the coalition added Rhode Island, Delaware, and Massachusetts to further formalize a seven-state council whose job will be to coordinate the reopening of the region’s economy and, more recently, to purchase hard to find protective equipment. The evolution of the northeastern cooperative matches well with the theory of institutional collective action, whereby such collaborations evolve systematically over time as they adapt to new circumstances (Feiock & Scholz, 2010).

As of May 12, 2020, there are at least five confirmable multistate partnerships oriented toward coordinated reopening of state economies (see Figure 1). Other interstate partnerships have been discussed or claimed, but these are the ones that could be confirmed. States working together is not novel, but an important question for diffusion and federalism scholars to consider is how these partnerships form, why some evolve into sturdier compacts, and how ongoing collaborations among states in disparate policy domains affect the diffusion of future innovations. Diffusion researchers have studied compacts as an attempt to overcome convenience sampling in the study of state innovativeness (Karch et al., 2016; Nicholson-Crotty et al., 2014), but far more attention is warranted to how collaborations, like what we are seeing in COVID-19, structure observable diffusion networks (Desmarais et al., 2015). Diffusion scholars tend to only consider collaborative environments that are directly tied to a policy (Balla, 2001) or general collaborative bodies like professional associations (Shipan & Volden, 2012; Teodoro, 2009) when studying diffusion. COVID-19 reveals how prior state collaborations and interpersonal relationships among public officials, even in completely unrelated policy domains, make future collaboration easier. The marijuana summit built relationships among the governors that could quickly be leveraged in the rapidly developing pandemic. Smaller regional networks like this one are harder to identify using macro-level analysis of policy adoption, the dominant approach in diffusion studies. Related research questions can include why these smaller partnerships form and how they structure the more stable diffusion networks identified by past research.

Figure 1.

Interstate COVID-19 coordinating groups, as of May 12, 2020.

Myriad interesting research questions also emerge from the different COVID-19 partnerships themselves. Although the marijuana summit helps explain why only four states were initially included in the Northeastern collaborative, it is sensible to ask why Ohio and Maryland were not brought into the fold, or why Pennsylvania did not create a separate partnership with them, due to the cross-border travel problems. There is also the striking geographic isolation of Colorado from the Western Pact due to (at present) noninvolvement by Utah. Another question is what is happening with West Virginia? It is surrounded by three different groups. Further examining these collaboratives will help illuminate important relationships among the states, relationships that likely shape other cross-state policy efforts.

Local Government Collaboration

States were not the only ones to form collaborative partnerships (Benton, 2013). Local governments responded, at times in response to state inaction, with their own collaborations. For example, although Florida Governor Ron DeSantis provided conflicting directions to local governments, Hillsborough County and its cities of Tampa, Temple Terrance, and Plant City leveraged their existing Emergency Policy Group (typically used for hurricane response) to develop consistent policies on business closures, mask requirements, beach closures, and more. Mayors of the four largest cities in Tennessee formed the Major Metros Task Force (WSMV Digital Staff, 2020). Five counties in Southeastern Texas coordinated on screening and testing rules (Bain, 2020). These are but a few examples. Scholars should dig into why certain localities worked together. Was there a history to their interactions or was it simply present context? To what extent did diffusion occur? How did their actions agree or differ with their states? All these questions can help us better understand the vertical and horizontal relationships, particularly local policy diffusion, where there is less scholarly focus.

Diffusion and Federalism Scholarship

Thus, scholarship on policy diffusion should consider how repeated interactions through smaller scale collaborations can facilitate the spread of future unrelated policies and increase intergovernmental cooperation. Such effects may be time limited, as they result from the relationships between a specific set of actors who do not remain in office forever. The marijuana summit is again an apt example. These four governors will leave office, and it is unclear whether their successors will maintain the partnership if it remains informal. This case also highlights the importance of micro-level relationships in policy innovation and interstate collaboration. Although most diffusion studies focus on macro-level patterns of adoption, there is much to be learned about the micro-level foundations. Often these foundations are assumed, but cases like the regional marijuana collaboration tell us more about how they function. Relationships among elected and appointed officials can be leveraged during a crisis like COVID-19 for rapid collaboration, sharing, and learning. This collaboration in the context of failed federal leadership is consistent with an ongoing trend noted by federalism scholars whereby federal gridlock has created opportunities for state leadership (Rose & Bowling, 2015).

Both a feature and a bug of federalism, states have power to step up and lead, but forcing the states to do so leads to disparate outcomes for citizens in different states (Kettl, 2020). There is perhaps no better symbol of these disparate outcomes than the fragmented expansion of Medicaid under the Affordable Care Act (Grogan, 2020). In fact, the mainly southern states that have not expanded Medicaid are also those that were largely slow to issue stay at home orders in response to COVID-19 and have been the quickest to reopen their economies. Health policy scholars will find fruitful avenues of research in the implications of Medicaid expansion for this health crisis and the interplay between uneven changes in state health systems over the past decade and COVID-19 outcomes.

Those who study federalism also need to pay more attention to such mechanisms for collaboration. Although plenty has been written recently about states operating in the void created by federal gridlock, there is a tendency to focus on why individual states respond differently to that environment, be it in accepting or rejecting Medicaid expansion, liberalizing marijuana policies, providing sanctuaries for illegal immigrants, and much more (Rose & Bowling, 2015). As President Trump’s approach to federalism remains conflictual on multiple policy fronts (René, 2020), the emergence of cross-state partnerships for the purpose of solving pressing policy problems should receive more scholarly attention. Scholars often focus on the structure of the vertical relationship between the states and the national government when demarcating different eras of federalism (e.g., Kincaid, 2008), but what is happening in the horizontal relationships between states is just as important (Bowman, 2004). As are personal relationships among actors (Perlman et al., 2018). Fragmented federalism and federal gridlock may lead to more self-organized collaborations at the subnational level in the United States (Feiock & Scholz, 2010). This crisis should lead us to focus more attention on questions regarding the implications of fragmented federalism, federal gridlock, and political polarization on interstate relationships. In addition, the question remains as to whether the collaborations being formed now for COVID-19 will lead to sturdier agreements that will live past the current crisis.

Interstate Compacts

There are currently more than 150 active interstate compacts in the United States, not counting those collaborations and agreements that do not require the consent of Congress under Article 1 Section 10 Clause III of the Constitution. Compacts are contractual agreements that states enter to provide coordination for things like waterway management, radioactive waste management, emergency management, and much more. States tend to enter compacts for the purposes of expanding their capacity to solve problems (Bowman & Woods, 2007). Compacts form either due to federal action, as a protective response, or the void of federal inaction (Woods & Bowman, 2011). COVID-19 provides a useful, though complex, test of theories about differences in compact formation due to economic versus social activism by the national government because both are at play in this pandemic.

It is too early to tell what comes of the informal interstate collaborations emerging from COVID-19, but there is precedent for states establishing sturdier compacts on the heels of crisis. Take, for example, the Emergency Management Assistance Compact (EMAC). Initiated after the devastation of Florida during Hurricane Andrew, EMAC has allowed states—all 50 are members—to coordinate resource sharing during natural and man-made disasters (Kapucu et al., 2009). In fact, Montana and North Dakota exchanged PPE under EMAC during the current pandemic (see Figure 1).

If states remain displeased with the national government’s response to COVID-19, it is possible that some will seek to establish lasting institutional frameworks like EMAC. Such a possibility is of great importance to state public health practitioners. There has been sharing of equipment between states during COVID-19, but the context differs from a regionally localized natural disaster where most states are unaffected and can send substantial aid. In fact, states remain pitted against each other and the national government for necessary supplies to fight COVID-19 (Soergel, 2020). State public health officials face a reality where they must consider how to support each other during a national crisis where the national government fails to take the lead in coordinating a response and has sought control of the supply chain of PPE (Jankowicz, 2020). Federalism scholars have argued for almost two decades that interstate collaborations can effectively stand in for federal inaction (Bowman, 2004), but what about a mix of inaction and antagonism?

Another question for scholars is what role did interest groups play in COVID-19 collaborations (Bowman & Woods, 2010)? A spike in lobbying over the first federal stimulus is well documented (Evers-Hillstrom, 2020), but interest group scholars have an opportunity to also examine variation in group activity as states work through reopening, restarting their economies, and recovering. In addition, the evolution of these interstate collaborations will provide a test of how such organizations are thought to evolve (Woods & Bowman, 2018). Resulting practical lessons are valuable for public health officials fighting the future spread of infectious disease that is made more likely by a changing climate and increasingly mobile global population (Lindgren et al., 2012).

Diffusion Quarantine: State Preemption and COVID-19

State preemption is likewise an emerging area of study for scholars, increasingly relevant for practitioners and amplified by the COVID-19 crisis. Like regional collaboration, state preemption of local governments is certainly not new, though there has been a sharp rise in the use of “weaponized,” “nuclear,” “punitive,” or “hyper” ceiling preemption in the last 10 years (Briffault, 2018; C. B. Goodman et al., 2020; Scharff, 2018). As opposed to floor preemption, where states maintain a minimum standard policy, ceiling preemption places limits on what local governments can do. In addition, states have enacted sharp penalties for local officials who violate state law. The rise in ceiling preemption has been tied to conflicts between conservative Republican-controlled statehouses and Democratic-controlled cities (Fowler & Witt, 2019; C. B. Goodman, 2019) and local policy innovation in response to federal gridlock (Riverstone-Newell, 2017). Within the framework of policy innovation diffusion, state ceiling preemption has been characterized as a quarantining of local governments from the influence of policies from localities outside of the state (Mallinson, 2020). Much like physical quarantine protects susceptible people from contact with infected carriers of a disease, states use ceiling preemption to prevent the spread of new policy ideas among their local governments.

Bowman (2017) has noted the increase of state centralization across many states as well as instances when local government pushback. She has also called on political scientists to engage in greater theoretical development on state–local relations, and the divergent responses during COVID-19 are an opportunity to do just that. The distribution of power between state and local governments has been described as fluid (Kincaid, 2014), but states will often move during a crisis like COVID-19 to flex their policing powers. Doing so creates friction with local governments and citizens regarding the appropriate balance of security and liberty, which was evident in protests of state stay-at-home orders. But states also fostered tension with local governments by employing ceiling preemption during the current pandemic, particularly as southern Republican governors implemented statewide policies to address the crisis. Local officials were at the forefront of instituting bans on gatherings, closing restaurants and bars, and more (Brasch & Lutz, 2020). Over time, as governors ramped up their efforts to implement a statewide response, some used ceiling preemption for the purpose of creating a statewide standard. For example, Mississippi’s Governor Tate Reeves issued an executive order on March 24 that banned public gatherings but also adopted a more expansive list of “essential” businesses than was being used by local governments. The order formally canceled

any order, rule, regulation, or action by any governing body, agency, or political subdivision of the state that imposes any additional freedom of movement or social distancing limitations on Essential Business or Operation, restricts scope of services or hours of operation of any Essential Business or Operation, or which will or might in any way conflict with or impede the purpose of this Executive Order is suspended and unenforceable during this COVID-19 State of Emergency. (Judin, 2020)

Thus, the order effectively ended any local rules above the ceiling set by the Governor’s order.

At first, local governments, particularly large cities in states like Mississippi, Georgia, Florida, Arizona, and Texas, pushed for statewide action, but, in their eventual response, many governors chose to preempt local rules. In contrast, Texas’s Governor Abbott argued for local control, departing from his government’s past efforts to ceiling preempt numerous local ordinances (Briffault, 2018). Local officials in some states pointed to sustained state preemption activity over the last decade as having made local governments more vulnerable in the COVID-19 crisis (Greenblatt, 2020). Often, strained state–local dynamics highlight a growing urban-rural divide in the states (Brownstein, 2020), though such political divisions were not limited to states with less active state government responses to COVID-19. Pennsylvania’s Governor Tom Wolf faced sustained criticism from the Republican-controlled General Assembly for his broad shutdown of businesses (McGoldrick, 2020). Illinois’s Governor J.B. Pritzker also received pushback from local businesses for broad closures (Greenblatt, 2020). Although such a divisive political environment is not a surprise to political scientists and public administration and policy scholars, it can be surprising and off-putting to the public in a time of crisis and presents difficult challenges for public health workers in stemming the spread of COVID-19.

Political scientists and public administration and policy scholars are only beginning to fully grapple with the rise of preemption over the last decade, its origins and implications. But much work is being done. This research can contribute to Bowman’s call for better theorization of state–local relations, but it also has important practical applications. For example, one researcher has already leveraged the current crises to shine a light on state ceiling preemption and to call for a rebalancing of state–local powers (Kleiman, 2020). The question remains, however, what is the appropriate balance? Scholars can contribute more to this debate.

Takeaways for Scholars and Practitioners

What does the stark surfacing of cooperative and conflictual trends in American federalism mean for scholars and practitioners? For scholars, there is much to unpack from this pandemic and the different responses from federal, state, and local governments. Conflict was perhaps the most salient image with President Trump’s ongoing Twitter and verbal skirmishes with governors and the media, not to mention criticism by local officials of state preemption and business closures. Necessarily, scholars should increase their efforts at understanding the trend of ceiling preemption and its implications for theories of policy diffusion and federalism. However, coordination among states should receive as much attention as ongoing conflicts. The collaboration between New York, New Jersey, Connecticut, Pennsylvania, and eventually Rhode Island, Delaware, and Massachusetts calls our attention to circumstances where past collaboration on completely unrelated topics can build relationships necessary for future partnerships. Public administration and policy scholars that study the diffusion of policy innovations must take a closer look at the micro-level relationships and interactions that form these partnerships. Without better linking the micro- and macro-levels, it will be truly impossible to understand the causal pathways through which innovation occurs. Past partnerships can accelerate future action, but scholars miss cases where previous interactions yield future policy coordination in unrelated policy domains. For practitioners, my hope is that this article makes clear that political science, public administration, and public policy scholars have ongoing and robust research surrounding the interstate and state–local relationships that starkly emerged during COVID-19. As efforts at addressing this crisis and preparing for the next continue, we have much to offer regarding how to build and structure intergovernmental partnerships.

Footnotes

Declaration of Conflicting Interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) received no financial support for the research, authorship, and/or publication of this article.

Author Biography

Daniel J. Mallinson (PhD) is an assistant professor of public policy and administration at Penn State Harrisburg. His research interests include policy diffusion, state politics, federalism, marijuana policy, energy policy, and environmental policy.

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