The historical and unprecedented COVID-19 crisis which became a global pandemic within months seemed to have followed a similar trajectory to that of a plane (take off, full flight and landing) with first the rise of the spread and the awakening of the countries to the major health catastrophe that it promised to become, the full blast of the crisis when people’s awareness was at its peak matched only by the number of infected and deaths and the period when post lockdown measures were being considered and started to be implemented.This article seeks to focus on the first phase, those early weeks when countries were starting to realise the extent of the crisis and began to react. It compares two geopolitical giants that at first appear to function very differently but when taking a closer look may not be so different. The pro-federalists in favour of the European Union (EU) have always looked to the USA as an institutional example of what the member states of the EU could achieve if a supranational elected government were to be granted competencies beyond those of the current intergovernmental set up.
What this COVID-19 pandemic revealed is that beyond the institutional differences, the response to the crisis in the USA and the EU were very similar. First the institutional competencies of the states versus the overarching system, the federal government in the USA and the institutions in the EU, were reviewed to highlight the differences of competencies granted to each and then the similarities in the COVID-19 response were discussed.
Upon the creation of the Unites States of America as it is known today, the Constitution and the Bill of Rights created two different kinds of separation of powers, both designed to act as critical checks and balances. The first was the three branches of government: Executive Legislative and the Judiciary, the second was the granting of separate powers to the federal and state governments (Roos 2020). Under the Constitution, whilst the state legislatures retain much of their sovereignty to pass laws as they see fit, the federal government has the power to intervene when it suits the national interest. Further, under the "supremacy clause" (Article IV), federal laws and statutes supersede state law (Roos 2020). For all that pertains to health, the USA has a Federal Emergency Management Agency (FEMA) and Centers for Disease Control and Prevention(CDC) which were the ones to report the first American death due to COVID-19on February 29 th 2020 (Corley 2020).
In principle, according to federal law, the federal government should have pre-empted state actors and agencies, commanded and controlled a national response in the unprecedented COVID-19 crisis. And indeed, states were reliant on resources and regulations from the federal government and had to wait for COVID-19 tests to be approved and manufactured at the federal level (Wetsman 2020). Since it is the federal government, not the states, that has access to reserves of drugs and protective equipment through the Strategic National Stockpile, the states were further dependant on federal action. Finally, the federal government having a far more extensive and flexible budget as well as the ability to put pressure on companies to produce masks, either informally or under the Defence Production Act, gave the President the competency to impose federal contracts on companies (Wetsman 2020).
The European Union in comparison is not a federal state but a Union of Member States whereby the balance between supranational and intergovernmental governance is forever challenged.
One key principle transcends this dichotomy: subsidiarity, which dictates that political decisions should be taken and handled by the smallest, lowest or least centralized competent authority. As such the provision of healthcare is, above all, a national competence and public health is a competence shared between Member States and the Union (European Parliament 2020). Article 168 of the Treaty on the Functioning of the European Union (TFEU) states that health is a supporting Community competence: the EU «encourages cooperation» and «complements national policies» without replacing it (Gaillard 2020). For the COVID-19 crisis, the EU therefore had little room to manoeuvre but nonetheless en deavoured to coordinate the action of the member states. When countries across the EU closed their frontiers, within the rights of the Schengen Agreements, that authorize member states to reintroduce border controls in the event of a serious threat to public order or internal security, the European Commission could not prevent it and instead resorted to drafting guidelines to not threaten the distribution and supply chains of stores (Gaillard 2020).
End of January, 2020 the Croatian presidency of the EU called on the member states to show solidarity and make use of the Integrated Political Crisis Response (IPCR) which allows better sharing of information between governments (Gaillard 2020). The European action was further supported by several agencies devoted to health: a Health Security Committee and The European Center for Disease Prevention and Control which is comparable to a European WHO and assesses health risks. It thus consolidated European epidemiological data and made it possible to better assess the risks, both in terms of the spread of the virus from one individual to another and in terms of consequences on national health systems (Gaillard 2020). The EU also focused on educating on health issues and promoted research to contain the disease. As such, it successfully raised 140 million euros of public and private funds to develop a vaccine against COVID-19 (Gaillard 2020). In an attempt to promote better policy coordination, particularly in cross border, areas, the EU made sure that the decisions taken at national level by each of its member states did not have harmful consequences for their neighbours. It also mobilized emergency systems including the Civil Protection Mechanism to repatriate European citizens present in the Wuhan province in China, at the start of the coronavirus epidemic, and had also made it possible to send medical equipment there. It was mobilized in particular by Austria to finance part of the repatriation of its citizens living abroad (Gaillard 2020).
One stark difference between the USA and the EU response was the communication of a central spokesperson in the USA, the President Donald Trump, and the lack of a unique EU spokesperson with the democratic legitimacy to speak on behalf of the EU. Whilst Ursula von der Leyen, President of the EU Commission, was the official spokesperson for the EU response, in practice her communication had little impact whether it were on the governments or on the citizens of the EU who did not democratically elect her. The President of the EU Commission is nominated and the nomination is endorsed by the European Council and the European Parliament but there is no European wide campaign similar to that of the USA Presidential campaigns. In the USA, the Presidential communication in response to the COVID 19 pandemic was extensive albeit detrimental to the overall crisis as discussed below.
In essentially every country on earth, central government authorities directed and ran the response to COVID-19. However, in the USA, whilst in a time of emergency, it would have been expected that most states would have fallen into line, they couldn’t be “commandeered" without their consentand technically, states would have had to agree to put their officials under federal direction (Feldman 2020). So whilst the federal government lead the national response to COVID- 19 state and local health departments stood on the front lines (NCSL 2020). In practice when it came to the competency of public health, states made their own decisions about the type of responses they thought were necessary, and the CDC and FEMA didn’t exercise direct supervisory authority over state, county or local boards of health, just as the President had no supervisory authority over state, county or local executives (Feldman, 2020). Consequently,
«states responded to the crisis first and fore-most with the resources they had, the way it was set up to work was that the feds provided a boost, and were the backup if states ran out of something» (Wetsman 2020).
Further, the federal government appeared to be falling down on the job, the CDC only offered nonbinding guidance and the presidential leadership was perceived as failing (Feldman, 2020). In the absence of national leadership, states and cities stepped up to take charge of the coronavirus crisis.
Early on, San Francisco took steps to mitigate the spread among the city’s highly vulnerable homeless population (Kreitner 2020). New York state enacted a 90 day moratorium on evictions. Cities like Seattle and Columbus issued emergency vouchers to help people buy food It was largely up to mayors and governors to decide how seriously to take the threat and how strenuously to respond (Kreitner 2020). Even some Republicans, like Ohio Governor Mike DeWine, won praise for their decisive actions. «This has been mostly a state and local effort, (...) The federal government has been sort of behind the times» (Kreitner 2020). Indeed, Washington essentially abandoned the states to their own devices (Kreitner 2020). While all 50 states declared states of emergency, giving governors emergency powers, the policy response from states was wide ranging (Rahman and Ollstein 2020). California, Illinois, Indiana, Michigan, Ohio, Washington, West Virginia and Wisconsin initiated the most comprehensive policies. They closed all bars and restaurants except for takeout and delivery, banned all gatherings, ordered mandatory statewide quarantine, closed all nonessential businesses, and closed all schools. California and Washington also enacted paid sick leave for workers.
Mississippi and Oklahoma were on the other end of the spectrum. Neither instituted social restrictions outside closing schools (Rahman and Ollstein 2020).«We’re a decentralized public health system» said Janet Baseman, an epidemiologist and associate dean of the School of Public Health at the University of Washington (Wilson 2020). Federalism created room for state and local governments to act on their own (Feldman 2020). «During a public health crisis like the COVID 19 they were the ones who had the final say» says Ross Silverman, professor of health policy and management at Indiana University (Wetsman2020). Whilst the two levels of governance were supposed to work together, with the federal government setting the tone for the state level response, the decentralized public health system in the US coupled with inconsistent and slow activity at the federal level meant initiatives were patchwork (Wetsman 2020).
In the EU, unsurprisingly the member states similarly all reacted at the national level. Very strict containment measures were implemented in France, Spain and Italy. Germany, the Czech Republic, Slovakia, Denmark, Poland, Latvia, Lithuania, Estonia and Cyprus also introduced tighter movement controls, sometimes going as far as completely closing their borders. All these decisions were taken with the same aim: to limit population movements and social life, two aggravating factors of the spread of the virus (Gaillard 2020). Interestingly however, despite the lack of the EU institutional provisions, European solidarity was exemplified in the action of its Member States that coordinated the treatment of patients from other Member States, supplied health care equipment to one another, including via EU led procurement initiatives and stockpiling, and repatriated citizens (European Parliament 2020). An example was Germany which dispatched one million protective masks, 50 000 tests, 200 000 N 95 masks and 2 million ordinary surgical masks supplied by China to Italy (Gaillard 2020).
To what extent could this European member state solidarity be considered an example of supranational/federal sentiment? In a few years’ time, when looking back at the global response of nations around the world, will historians and other academics compare the USA response with that of each and every individual member state of the European Union or will they make analyses of the response of the “geopolitical giants” such as America, Europe, Asia? The COVID 19 spread is not slowed down by geopolitical national frontiers that make no sense when tackling cross border issues such as epidemics. The USA and the EU exemplify this.
Somewhat provocatively, the title of this article asked to what extent the EU is just as federal as the USA but when looking back at those early weeks when countries worldwide were starting to realise the extent of the crisis and began to react, an analysis of the responses of the USA federal government versus the states and the EU member states versus the EU institutions suggests that the question may not be so controversial after all. The COVID 19 pandemic revealed that in the USA whilst the federal government has the power to intervene when it suits the national interest, the state legislatures retain much of their sovereignty and in the absence of national leadership took charge and led the response. In the EU despite the lack of EU institutional provisions anda clear national response on a member state level, European solidarity was exemplified and cooperation was encouraged by the EU. Whilst an EU wide direct democratic election of the President of the EU is improbable in the foreseeable future, this COVID 19 crisis does remind us that despite their national differences Europeans are united in diversity.
Dr. Raphaela Kitson-Pantano
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