COVID-19: Federalism and the Constitution

Eugenio Velasco-Ibarra

Instituto Tecnológico Autónomo de México

In this contribution to the symposium on the implications of the COVID-19 pandemic on several core topics and debates within constitutionalism, I address the broad constitutional theme of federalism. I preface my analysis by noting this theme’s potential for impinging on several of the other topics considered in this symposium. Therefore, to avoid excessive overlap with some of the other contributions, I will try to restrict my discussion to that which is more uniquely apposite to the character of a state’s inter-governmental relations. In addition, this text only offers a tentative reflection on some of the pandemic’s constitutional implications for federal polities, not an exhaustive and conclusive statement of them.

A survey of the mind-boggling output focusing on the actions undertaken by federations since the start of the pandemic reveals some interesting facts about several key areas of concern — most of which have already been clearly identified. Here, I mention only a few of them. Firstly, and perhaps least surprising, the federal organization of a state per se does not appear to be decisive vis-à-vis a state’s handling of the pandemic. Federal states have both been lauded (e.g. Australia) and criticized (e.g. Belgium) for the (in)ability of their different levels of government to cooperate in order to successfully respond to the special needs arising from this public health crisis and this divergence cannot be explained by looking to their federal structures alone. Secondly, and perhaps much more surprisingly, there does not appear to be a marked tendency in favour of centralization among federal countries — a particularly sensitive issue for federations and a popular institutional compromise during states of emergency. Examples of both centralized and non-centralized decision-making in federal systems during the pandemic are readily available, with Austria and Switzerland falling in the former camp and Canada and the United States in the latter, to name some of the jurisdictions which have emerged as the most salient in this regard in the literature. Other experiences are less easy to classify under this heading: although Germany is sometimes offered as an example of non-centralization, the introduction of the ‘federal emergency brake’ might be thought of as evidence to the contrary. A more ambitious reading of this arguably counterintuitive resistance to centralization in response to COVID-19 might conceive of the pandemic as a catalyst for decentralization (as has apparently been the case in Argentina). However, there is also evidence of the opposite —i.e. of the pandemic’s assistance in the intensification of prior dynamics of centralization, which appears to be the case in Brazil. Of course, the causes and character of these different tendencies are diverse: for instance, although Canada and the United States have not centralized their decision-making, their reasons for not having done so are not analogous. Thirdly, and lastly, the pandemic appears to have revived concerns about inequality and uncooperative behaviours amongst subnational units, with the closure of internal borders along with the uneven distribution of, and entitlement to, scarce medical resources ranking among the most contentious issues. While the United States has received much critical attention in this regard, all federations have had to face these difficulties to some extent (e.g. Austria or India).

While the constitutional relevance of these findings cannot be denied, I suggest that a more novel and under-explored matter of interest from a constitutional standpoint that has emerged from the federal responses to the pandemic concerns the use of —more or less— informal arrangements between different levels of government as a particularly relevant means for managing it and achieving the requisite cooperation and collaboration. The absence of a constitutional or statutory declaration of emergency in many countries, which would have allowed national governments to make use of temporary formally sanctioned powers, has meant that inter-governmental interactions have been based on more flexible, organic, and pandemic-specific practices whose development is still ongoing. In its simplest form, this is manifest in the establishment of regular and frequent meetings between national and subnational authorities. This is the case in Austria, Argentina, Canada, and Germany, for example. More intricate and institutionalised practices, however, have also appeared: in Belgium, the prime ministers of the Regions and Communities were exceptionally added to the federal National Security Council and in Australia a National Cabinet was created alongside other “resulting emergency governance architecture […] based on ‘soft’ governance instruments”.

These less formal inter-governmental mechanisms might not be considered particularly noteworthy in those jurisdictions where talk of constitutional conventions or other (unwritten) constitutional norms is a matter of course (although I would submit that even there the unprecedented challenges brought about by the pandemic render them an interesting topic of discussion). But for countries where their legal nature is contested (or their existence simply discarded), and in light of the growing academic interest from a comparative constitutional standpoint, governmental reliance on them should be considered a welcome development. In this regard, the pandemic presents an opportunity to ‘constitutionalise’ those matters which might otherwise pass as de facto governmental actions. This enrichment of the constitutional domain opens the door to submitting authorities to a normative standard, not merely a descriptive one. Moreover, said actions undertaken by governments during the COVID-19 pandemic are particularly valuable given their dual nature: conservative, in that they aim to protect the constitutional arrangements of the polity (which is a characteristic of emergency regimes) and, transformative, in light of its enduring character beyond what can reasonably be considered an emergency. In this regard, in line with Mireille Paquet and Robert Schertzer, I think COVID-19 is best understood as a ‘complex intergovernmental problem’ (CIP), which they identify as having three characteristics;

First, addressing their root causes is not something that is amenable to resolution by the actions of any one government. Instead, governments can generally only address the consequences of the problem on their territory and within their regulatory space. Second, the nature of CIPs requires high levels of coordination and collaboration among implicated governments. Responding to their consequences cannot be achieved by a single actor in an intergovernmental system. Third, these problems challenge the existing norms and venues of intergovernmental relations.

If one is persuaded by this concept, all three characteristics — but perhaps the third one in particular — pose an urgent task to constitutional scholars which refers not only to the appropriate allocation and distribution of powers, but also to the myriad tools that must be employed to successfully meet the needs arising from this type of problems. The aforementioned responses to the pandemic might perhaps be interpreted as acknowledging that constitutional norms are one such valuable, and more generally relevant, tool.

In this post, I have sought to provide an overview of the implications of the COVID-19 pandemic for federal systems of government. In doing so, I have tried to identify some general and important features of governmental responses by pointing to several jurisdictions. It seems that while the pandemic has facilitated the flare-up of jurisdiction-specific themes, the more common areas of federal concern are not amenable to any broad generalisations. Even so, in noting the cross-jurisdictional reliance on relatively informal arrangements for inter-governmental cooperation, I have tried to identify a promising area for future enquiry.

Eugenio Velasco-Ibarra is Associate Professor at the Department of Law of the Instituto Tecnológico Autónomo de México (ITAM)

Suggested Citation: Eugenio Velasco-Ibarra, ‘COVID-19: Federalism and the Constitution’ IACL-AIDC Blog (16 September 2021) https://blog-iacl-aidc.org/covid19-future-constitutionalism/2021/9/16/covid-19-federalism-and-the-constitution-p67ds.