A Challenge to Federalism: Mask Mandates and Subsidiarity
Federalism is a political system in which power is divided between more and less local governments. The United States has a federal system, decisions are made by local governments, state governments, and the federal government. Not only are decisions made by these various bodies, but different bodies are empowered to make different decisions.
Sometimes you will hear people claim they want a greater degree of federalism, and what that usually means is that they want more decisions to be made by individual states, and fewer decisions to be made by the federal government. Thus, the conservative lawyer and journalist David French published a book last year arguing that an increase in federalism is necessary to handle political polarization. French thinks that, given that California is far more liberal than Tennessee, it makes more sense to have California and Tennessee each develop their own healthcare systems, rather than have one federal healthcare system.
Now, the puzzle I want to investigate can be asked in those general terms, but the puzzle will be clearer if we look at a more specific form of federalism.
Subsidiarity is an approach to political philosophy which says that decisions should be made by the most local body capable of making the decision. Everyone in my household can decide what book to read on a Saturday afternoon, so it should be up to each person what to read. I should not decide what my wife should read, nor should she decide what I read. If we want to take a family vacation, however, then we can’t just each decide where we want to go. If we each decide, then she might go to the mountains while I go to the beach, with the result that we don’t take a family vacation at all. Where to vacation, then, must be made at the family level. We, as a family, cannot set up a sewer system, and so the county should be in charge of deciding how to distribute water and electricity. Our county cannot administrate an intrastate road system, and so intrastate roads should be handled by the state. The state of Florida cannot coordinate for national defense, and so national defense should be handled by the federal government.
Why might one support a principle of subsidiarity? Well there are lots of reasons. First, you might think that more local control allows decision makers to be more responsive to local conditions and preferences. Thus, many oppose federal minimum wage legislation on the grounds that it is better to allow individual states to decide the minimum wage that is best for them. Most people will agree that the minimum wage in Switzerland should be different from the minimum wage in Bangladesh, but if different economic conditions across countries mean we want a different minimum wage, why would the same not be true between individual U.S. states?
Second, you might support subsidiarity on the grounds that it provides laboratories of experimentation. If each state tries their own healthcare system, then we are more likely to discover which system actually works best.
Third, and I think most plausibly, you might support subsidiarity on grounds of democracy and freedom. The more local an election, the more influence an individual can exercise. If I have more say over local decision-making, then it seems more democratically legitimate for a local body to make decisions on how I can live. Not only that, but because the United States is heterogeneous, with people often clumped with others of similar political persuasion, the more we devolve decisions to local control, the more people will be governed by the sort of policies they would choose themselves. If most people in California want state-funded healthcare while most people in Arkansas do not, then a federalist system where each state can adopt their own healthcare system helps ensure that most people are governed by the system that reflects their particular political preferences.
So what is the puzzle? The puzzle is raised by policies where a less local government bans a more local government from restricting even more local decision-making. The example that started me thinking about this came from my home state of Florida. Governor DeSantis recently signed a bill to end all local COVID-19 restrictions and emergency orders. In doing so, Florida has joined other Republican–controlled states in passing laws that prohibit local authorities from instituting more restrictive COVID precautions.
As someone who generally supports subsidiarity, how should I think about these policies?
We could make a federalist or subsidiarity argument both for and against these state policies. The argument against these policies is easy: subsidiarity says that we should generally defer to more local decision-making. A state coming in and saying that a local town cannot have their own mask mandates overrides that local control. Counties and cities should be free to make their own decisions, as such, it is inappropriate for the state to ban cities from passing mask mandates.
However, you could also make an argument for the other side. You might say that it should be up to individuals whether or not they wear a mask. Individuals and families should be free to make their own decisions. As such, it is inappropriate for local authorities to maintain mask mandates at this point in the pandemic, and as such it is right for the state to step in in order to protect individuals from the overreach of local governments.
To help understand the conflict, imagine we iterated this puzzle at a higher level. Just as Florida passed a law banning cities from requiring masks, suppose the U.S. Federal Government passed a law banning states from prohibiting mask mandates. You could say this is bad for federalist reasons, the federal government should leave it up to the states. But you could also say this is good for federalist reasons, this ensures that states don’t overstep and violate the freedoms of local authorities.
This puzzle of subsidiarity is actually just a particular example of a puzzle that crops up in lots of places. Consider, for instance, this puzzle raised by Marcia Baron:
“An administrator once told me about the following dispute. A speaker had been invited to campus. The point of his lecture would be to oppose free speech. Some of the faculty objected strenuously to having him to campus and favored ‘uninviting’ him. Free speech is a great value, and they did not want to see it undermined by this or any other speaker. Others defended the plan to bring him to campus – and they did so in the name of free speech.
How could both parties appeal to free speech – and only free speech — in defense of their respective views? Those who opposed the speaker’s visit saw free speech as a goal, a goal which would not be advanced and might well be hindered by a speaker who spoke against it. Those who supported the speaker’s visit saw free speech as a matter of principle, imposing a side-constraint on our conduct. In the view of the former, what is desired is that free speech flourish, and to that end it might occasionally be necessary to squelch (what would otherwise be) free speech. In the view of the latter (those who supported the speaker’s visit), free speech is a value not in the sense of a goal to be promoted, but a value never to be violated. It would be a violation of free speech to prevent a speaker from speaking on the ground that his or her views were considered noxious, outrageous, or dangerous. That allowing the speaker to speak might undermine the cause of free speech by winning over some impressionable college students to the speaker’s side is irrelevant, in the supporters’ view. Those who opposed the speaker’s campus visit viewed free speech as a goal to be promoted or advanced. Those who opposed the attempt to uninvite the speaker saw free speech as a matter of principle: as constituting a side-constraint on our conduct. Side-constraints work this way: they tell us that no matter how worthwhile the goal, there are things which we may not do even if they are crucial for that goal.”
This is, I think, the same sort of puzzle. Can we restrict speech to maintain more freedom of speech? Can states force decisions on local governments, to stop them forcing decisions on others? And if Marcia Baron is right, the question we need to answer is does subsidiarity work like a side-constraint, or like a goal to be promoted? If it is a goal to be promoted, then these state policies might make sense. If it is instead supposed to act as a side-constraint these policies are problematic. How does one decide?
I don’t think there is any easy answer. Even if you look at one particular reason for accepting subsidiarity it can be tough to decide. Suppose you think that more local bodies are better able to make decisions for themselves. One the one hand, that might support allowing local governments to decide what is best for their specific conditions. But on the other hand, that might support letting each person decide for themselves whether or not they want to continue masking. And there is something to both these thoughts. Ideally, those who are vaccinated can mostly go without masks and those unvaccinated should continue wearing masks. So, ideally, people could make the best decision for themselves.
But then again, sometimes people make bad decisions and impose risks on others, and you might think that local authorities are in the best position to know how high the general risk is in a given local community.
In this particular context I’m inclined to think that local authorities should be empowered to make emergency decisions. I think the principle of subsidiarity means that states should not dictate what local governments can do.
But on the other hand, sometimes I support overarching restrictions. For instance, the Constitution is federal law that prevents states from imposing a religion on their citizens. I think the choice of religion should be up to individuals, and as such it is appropriate for the Supreme Court to impose on states a prohibition on compelling religious practice.
The puzzle persists, then, and there are no easy answers.