The New Federalism

By Susan Estrich

January 28, 2021 5 min read

The U.S. COVID response has been called "federalism at its best" — treating the states as "laboratories of change," as former Justice Louis Brandeis once said, rather than concentrating all decision-making in the federal government.

Frankly, it feels like federalism at its worst. At a time when we needed a national policy to fight a war that has cost more American lives than World War II, it was left to the 50 states to play faction-filled politics at its worst. Maskless rallies, closed restaurants, closed patios, open casinos, endlessly mixed messages. All told, it was about the least effective strategy in the Western world.

Until the vaccine gold rush, that is. Those over 75 can get it here, over 65 there. Last week, you could get a vaccine in Orange County if you were over 65; this week, Los Angeles County joined the parade on basically no notice; for next week, no new appointments are being offered, and it's not clear when the window will open again. In some states, the window still hasn't opened in the first place for anyone other than health care workers. In other states, teachers are being immunized, along with essential workers. In still others, age is all that matters.

It all depends on where you live. California should have more vaccine doses than anywhere else but is worse than everywhere else in the percentage of shots used. Hard to get worse than 50th of 50. West Virginia is on top, in a contest where it matters.

The other factor is even more unfair. It took days for the local news sites to catch up with internet-savvy retirees and millennials who acted immediately when the message — appointments available — popped up. Available turned into unavailable on a moment-by-moment basis. I can only imagine those without a secure internet connection standing by and then losing the spot. I know — those folks need it more, not less, than the more well-off.

What's behind all of this, what has been behind it from the start, is politics on the life-and-death scale.

Trying to specify who "needs" or "deserves" to have their lives protected first is treacherous territory. Health care workers are easy. Beyond that, all but impossible.

Take, for instance, the case of prisoners. Prisons are an ideal breeding ground for the virus, and prisoners are among those with the highest COVID fatality rates. But show me a politician who is willing to take the heat for vaccinating prisoners before voters over 65.

There seemed to be a consensus that teachers should be vaccinated so that schools could be opened, but if schools aren't, in fact, breeding grounds, then why should teachers be vaccinated ahead of other essential workers, ahead of voting seniors (the two go hand in hand)?

And as for prioritizing vaccines for ethnic or racial minorities, let me tell you about all the middle- and upper-class white folks I saw in line in the 99% neighborhood of East Los Angeles.

If that weren't bizarre enough, consider this question: Can you get a haircut where you live? Or a manicure? This being Los Angeles, there could hardly be an easier way to measure the lockdown. This week, the answer is no. Next week, the answer will be yes. Outdoor dining was prohibited last week and will be allowed next week, while, just across the border in Nevada, the casinos were open last week and will be next week, too.

And my favorite part: No one explains anything. For a while, there was talk of ranges and ICU percentages and all kinds of seemingly objective factors that would turn political decisions into objective ones. Politicians insisted that they were making their (contrary) decisions based on "science," the product of expert task forces and objective analysis.

No one seems to even try anymore. Spokespeople aim for everything to be perfectly murky. There is talk of "fluid" measures and "shifting" trends, of careful balances without specifying what is being balanced.

Trading lives for dollars sounds far too crass, especially with so many already lost. Better to call it the Newest New Federalism.

To find out more about Susan Estrich and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate website at

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