Consequences of Federal Failure: Lessons from New York City in the Pandemic

The first case of COVID-19 in New York City was diagnosed on March 1, 2020. By the end of the month, there were more than 38,000 confirmed cases and 914 deaths. In the first three months of the pandemic, more than 24,000 excess deaths occurred in the city. There was a shortage of everything from Lysol wipes to ventilators to body bags.

The City government’s response was swift and multifaceted because it had to be. People were dying at a rate eight times higher than normal. But it was also frustratingly limited: by jurisdictional restrictions, by resource constraints, and by coordination failures. A city is the form of government best positioned to understand the needs of its constituents. In a public health emergency, that sort of detailed knowledge is key to understanding and combatting the threat. But the COVID-19 pandemic has highlighted the ways in which local government, even when properly empowered, may not be powerful enough to combat big threats without federal support. And how badly that federal support can fail.

This has implications that go beyond fitful attempts to combat the ongoing pandemic in the United States. But it doesn’t stop there. There are second-order impacts, like responding to the economic devastation of the pandemic, that will require a functioning federal government. The upcoming national elections represent just such a looming threat: only the federal government has the resources to adequately identify and respond to the most serious threats to our electoral process. But does it have the will? New York City’s experience of the pandemic indicates that the answer is likely to be no.

The Balance of Powers

In the COVID pandemic, the failure of the federal government to serve a coordinating function has devolved the responsibility for everything from scientific guidance to the production of ventilators to localities. The federal failure to deploy its emergency powers—except to combat the non-emergency of fictive immigrants stealing (non-existent) American jobs—also has resulted in critical resource shortfalls that have worsened the suffering for millions of Americans.

In the resulting vacuum, localities have stepped up to contain and treat the virus.  States and cities have led the fight against COVID—and against federal inaction. Where local jurisdictions have been able to act swiftly and effectively, there have been early successes. Where jurisdictional rivalries, resource constraints, or other problems have prevented such action, there has been fertile ground for continuing infection.

It was in New York City, where I live and work as the Principal Deputy Counsel to the Mayor, that the U.S. pandemic truly took hold. What began as an isolated outbreak just north of the city’s borders rapidly developed into a pandemic that threatened to overwhelm the city. Our response had to be equally comprehensive. We passed emergency rules to ban price gouging on COVID-related supplies, stood up additional facilities to treat the surge of patients and to ensure the deceased could be handled appropriately, and we partnered with private industry to develop and bring to market novel medical devices to treat COVID patients. All of this was done by the City government in the first frenetic weeks of the pandemic, and all were things that could have been even more effective if the hard lessons we learned could have been scaled up across the nation. From a daily case rate of more than 5,300 in mid-April, New York City now has declined to a case rate of fewer than 300 for a city of 8.3 million people.

Localities like ours were in some ways naturally positioned to respond to COVID-19.  They have the power to take broad steps to respond to public health emergencies, even when those actions infringe on constitutionally protected rights. Across the United States, dense urban centers were on the leading edge of the crisis, and action by cities was as important as that undertaken by states. Local governments, with their close relationships to the affected populations and health and enforcement architectures, were the leading responders. However, states and cities cannot stop interstate or international travel, lack representation in international bodies like the World Health Organization, and cannot require domestic companies to prioritize their production. In fact, in many cases competition among localities for resources can devolve into a race to the bottom.

That’s why the federal government, which has a repository of emergency powers and fiscal resources, should be playing a significant role in establishing a coordinated national response, as it does (or at least should) in disasters of all kinds. But instead of using its emergency powers to set up a robust national COVID-19 response, the Trump administration has engaged in denial, slowed down critical response efforts like testing, and failed to lead – let alone participate – in international efforts needed to address a global challenge. When he should have been focused on saving the lives of American citizens, he instead sent troops into the streets over the wishes of local governments to arrest peaceful protestors. This has meant that local governments have had to step in to fill the void.

Consequences of Federal Failure to Act

Procurement of supplies is an area in which the federal government has explicit powers derived from national security authorities that can and should be used to respond to COVID-19. Under the Defense Production Act (DPA), the federal government can essentially direct production by private industry, resulting in both increased economic productivity and increased supply of needed goods. Instead of immediately ordering the production of ventilators and testing supplies, the Trump administration first denied the need to use the DPA. It then issued an executive order that seemed to invoke it, but which actually only delegated further action to the Department of Health and Human Services, which failed to order an increase in ventilator supplies until April 16—when more than 36,000 Americans had already died.

New York City, at the early epicenter of the pandemic, repeatedly called on the federal government to increase critical ventilator supplies. When it was not forthcoming, the City government itself sourced and contracted with a private company based in Brooklyn to produce novel bridge ventilators. These were designed, built, and shipped within a month—the ventilators ordered by the federal government are only now starting to arrive.

The DPA has still not been invoked for personal protective equipment (PPE) or testing reagents, despite critical shortages of both. This has led to absurd scenarios, including the governor of Maryland using the National Guard to protect PPE shipments from seizure by the federal government. Meanwhile Mayors are left to lead the charge, calling for increased testing supplies, which all experts agree are key to containing the pandemic.

Finally, the federal government has vast fiscal resources, which have yet to be adequately deployed.  This has two effects. First, it means that states and cities continue to pay for the COVID response without assurance of adequate reimbursement from the Federal Emergency Management Agency (FEMA) or funding for additional precautions in schools. Second, the projected fiscal shortfalls resulting from the economic fallout of the United States’ failure to contain COVID is leading states and cities to make significant budget cuts. These cuts will have far-reaching negative impacts on public services, health, and security.

Local Responses: The Good, the Bad, the Ugly

The lack of a coordinated national policy has led to a patchwork of local responses. Some jurisdictions have proven successful at the sort of coordinated action necessary to curb the spread of the virus. In others, lack of early or sustained measures has allowed for further spread of the pandemic, in turn jeopardizing the progress made in relatively successful jurisdictions.

The scope of the national failure is in some ways clearest where governments at other levels have stepped in. The early hit states in the northeast realized that the close connections between their populations required a coordinated response. They therefore worked together on certain aspects of COVID response, including early curbs on gatherings and purchasing medical supplies. Economic interdependency has also led to the establishment of a regional working group on recovery.

When national-scale policies to reduce movement in order to limit spread failed to materialize, it was left to sub-federal jurisdictions to undertake such measures to secure their population. Again, coordination has been key, as in the New York-New Jersey-Connecticut imposition of a quarantine for people traveling from states with spiking case numbers. This inter-state action has been accompanied by significant work by cities to enforce mandates and secure their populations. While usually imposed at the state level, absent federal assistance and intervention it is cities that often bear the responsibility for enforcing such mandates, often while having to develop creative legal and practical ways to do so.

Conversely, in places where localities have not worked together effectively, the absence of federal coordination has led to a race to the bottom. North Carolina beach towns, for instance, dropped their own measures to contain COVID spread from visitors when faced with looser restrictions in nearby South Carolina, even though South Carolina has had significantly higher COVID rates. Oregon, where a mask mandate is in place, has traced a cluster of cases back to commuters from neighboring Idaho, where no such mandate exists.

Exacerbating the race to the bottom have been failures by some states to prioritize public health over politics. Egged on by federal calls to minimize the seriousness of the pandemic, some governors have responded by stripping local officials of the power to make evidence-based decisions about public health.

Cities with high infection rates have also struggled to exercise their discretion to reopen schools on a safe timeline. Meanwhile, there has been pressure from governors to proceed even when there are contraindications.  And the federal government’s guidance on point has consisted of President Trump opining via Twitter that “SCHOOLS MUST OPEN IN THE FALL!!!”

Common-sense measures like mask mandates have also led to struggles over governmental control.  In Texas, Arizona, and Nebraska for instance, state governors prohibited local officials from mandating masks. The mayor of Houston noted: “[W]hen we had local control and the tools that we needed, this virus was under control and it was very much manageable…. It was only when those tools were taken away that the numbers went in a different direction.” Both Arizona and Texas eventually had to relent in the face of skyrocketing case counts.  Nebraska has instead told localities the state will withhold their federal COVID relief money if they impose a mask requirement.

The Next Threats

The Trump administration’s failure to utilize national tools to confront the threat of COVID has significantly reduced the country’s ability to respond to and contain the current pandemic.  But the consequences for local governments that have had to take the lead extend beyond the immediate effects of the pandemic itself. Even those that have succeeded in reducing spread face looming budgetary shortfalls that will hamper not only the pandemic response but also the ability to rebuild the country’s economic foundations.

In New York City, the budgetary crisis means that the City government itself may need to lay off 22,000 workers in the near future. Most other cities are in a similar situation. The looming budget crisis for cities means not only increased unemployment but also the loss of vital public services at a time when the public can least afford it. While some Federal Government funds are available for direct COVID relief, the government continues to threaten to withhold money for improper reasons. Without federal funds, including additional funds to continue to fight COVID, cities will struggle.

That’s a problem for all Americans—whether or urban or rural. Cities are not only the economic engine of the country. They’re also the hubs of American innovation and infrastructure. Without federal support, the pandemic has the potential to spread continuing devastation as cities struggle to maintain their vital roles as economic drivers. New York City had a booming economy pre-pandemic, with a GDP of $1.5 trillion in 2018. Post-pandemic, estimates are that the city’s economy could contract by at least 10%. That pattern is being repeated across cities—which provide almost 85% of total U.S. GDP. Weaken the economies of the cities and the national economy will crumble.

And beyond the second-order consequences stemming from COVID-related inaction, the failed national-level response shows how precarious other vital systems are when the executive branch of the federal government refuses to fulfil its normal roles. Think of elections: these are generally run by states but administered by local Boards of Election. Even the best resourced and intentioned of these are poorly positioned to combat sophisticated cyber threats—or even relatively unsophisticated ones that could still have seriously damaging impacts. Without support from the Department of Homeland Security and other federal entities that do have the resources and trained personnel to detect and combat these threats—and without a federal government motivated to do so—what chance do we have of preserving the integrity of our electoral process? Local governments are vital for protecting communities, charged with caring for health and safety, providing education and services, and maintaining the physical infrastructure of communities. But if the federal government does not play its own crucial role, everyone will suffer the consequences.

IMAGE: Medical staff move bodies from the Wyckoff Heights Medical Center to a refrigerated truck on April 2, 2020 in Brooklyn, New York. (Photo by ANGELA WEISS/AFP via Getty Images)

 

About the Author(s)

Alexis Blane

Principal Deputy Counsel to the Mayor of New York City and a member of the Board of the Mayor’s Fund to Advance New York City. Public interest lawyer who has served in various roles in the federal government, nonprofits sector, and city government, including as an Attorney Advisor at the U.S. State Department. Follow her on Twitter (@AlexisBlane)