Florida governor Ron DeSantis last month signed new legislation largely banning the use of vaccine mandates by either private entities or local governments. The new legislation also reinforces the DeSantis administration’s overall efforts to prevent local governments from imposing mask mandates as well. Most notably, the administration has intervened to prevent school districts from imposing mandates.
This approach has predictably raised opposition. Generally, opponents of DeSantis’s efforts at preempting local mandates have claimed that local governments ought to exercise some degree of independence from state policies.
When pressed on this issue at a press conference last month, DeSantis responded with a philosophical statement suggesting that the prerogatives of state governments ought to trump all other levels of government. Specifically, when asked why he was willing to impose state mandates on local governments—i.e., “violating the tenet of home rule”—DeSantis responded:
It’s the United States of America, not the United school boards or county commissions of America. So the states are the primary vehicles to protect people’s freedoms, their health, their safety, their welfare in our constitutional system.
He goes on to emphasize that local governments must be at the mercy of his state-level administration because local governments “don’t have the right to do wrong.” What is “wrong,” of course, is to be decided by state-level politicians. This response strongly implies that DeSantis is of the opinion Florida—and apparently all the other states as well—are to function as unitary states. That is, his position appears to be that decentralized power is appropriate in relations between state governments and the federal governments—but has no role in the relationship between state governments and local governments.
Now, I view DeSantis as a politician who has generally done more good than harm, but is DeSantis right in this case? This is an important question that extends far beyond Florida’s current debate over vaccine mandates.
Rather, this is a question that must be answered by any of us who push for political decentralization, whether through radically greater local autonomy or outright secession.
Unitary States versus Confederations
Essentially, the question—at least for Americans—comes down to whether or not radical decentralization applies only to relations between state governments and the federal government. If this applies only to state-federal relations, then decentralization apparently ought to stop at state borders. Thus, were there to be formal or de facto secession of a state in the future, then that state would thereafter function as a sovereign unitary state. Current examples of unitary states include France and Perú, in which the central government exercises broad and supreme power over any administrative subdivisions such as municipalities, counties, or provinces. Moreover, these local entities are creatures of the central government in that the central government governs them directly and can even abolish local governments without local consent.
Most countries in the world employ unitary governments. Moreover, the member states of the US themselves are currently unitary in nature. Municipalities and counties are creations of state law, and city and county governments can be created or abolished by acts of the state legislature. In some states, local governments enjoy some degree of autonomy through “home rule” provisions or statutes, but even in these cases, political power lies lopsidedly with the state government.
This is in contrast with the state-federal relationship in the US. Although the US states’ power relative to the federal government has been thoroughly weakened in recent decades, it is still clear that the US government must frequently rely on financial incentives to get what they want from state governments, rather than imposing policies directly. Indeed, the covid crisis has highlighted the limits of federal powers within states in that—unlike in unitary states—the national government clearly never had had the legal power to impose nationwide “lockdowns.”
On the other hand, because of the states’ unitary structures, state governors have wielded immense power over municipal and county governments, imposing lockdowns, mask mandates, and more.
So the question remains: When US member states begin to obtain greater autonomy from the US federal government—which is inevitable either in the near future or the more distant future—will this simply lead to the creation of new unitary states exercising centralized political power over their own populations?
It would seem that any principled defense of decentralization must lead to calls for decentralization at the state level as well.
After all, to support a de facto or de jureindependent and unitary state in say, Florida, would be simply to embrace the European model. Unitary sovereign states like Italy and Portugal govern directly from the national capitol without any chance of meaningful opposition from effectively sovereign regional governments.
Moreover, elections in one of these new unitary American regimes would become exactly what defenders of the electoral college have sought to avoid: statewide elections would—and presently do—reflect nothing more than majoritarianism, with the executive chosen based on the principle of winning 50 percent of the votes plus one. There would be no mechanism to balance regional political realities as the electoral college does with presidential elections now.
How to Turn US States into Confederations
If decentralization is something we take seriously—and not just a temporary ploy to get more autonomy for certain state governments—then state governments themselves must be limited by local autonomy.
Specifically, governance in these places must be subjected to tools that protect local autonomy. These tools include double majorities, local vetoes, and political representation not based on population size.
For example, let’s look at a state like Colorado. Were the state to become an independent unitary state, the Denver metro area would exercise almost untrammeled power over the rest of the state. The western half of the state and the metro areas outside of Denver would be at the mercy of Denver-area voters. This, of course, is currently the situation in terms of statewide policy.
The answer to this could be found in giving metropolitan areas outside Denver a way to veto statewide policies that benefit only one or two regions of the state at the expense of everyone else. For example, a system of double majorities. This would mean that significant legislative changes would need to be approved by both a majority of the voters overall and also by a majority of voters in a majority of regional governments. (This system is presently used in Switzerland.) Similarly, different regions of the state would need to be given equal votes within a legislative body. That way each region of the state would be on equal footing regardless of each region’s population. This would prevent the highly populated regions from riding roughshod over more rural regions. Moreover, supermajorities in the style of the old Articles of Confederation ought to be required.
Without measures such as these, these unitary governments would be governed on no principle other than rank majoritarianism.
But perhaps most importantly of all, it must be explicit that the state’s municipalities or regional governments can legally secede. Without this guarantee, we’d simply be looking at an eventual repeat of what we see now in the United States: an entrenched ruling class at the national capital exercising outsized power to force policy on all regions of the nation regardless of local values, laws, or preferences.
So, DeSantis’s view that state governments are necessarily the “primary vehicles” through which policy ought to be made is a dangerous view. It appears to presuppose that there is something magical about the state level of government and that no further decentralization of power is necessary.
DeSantis is, of course, correct that federal attempts to impose national covid mandates are dangerous and illegitimate. But he is wrong that decentralization is necessary only in limiting federal power. The danger of state-level power is especially present for larger states like Florida, California, New York and Texas. These states have populations the size of medium-sized European countries, and thus already consolidate far too much power into a small handful of unitary regimes. We could contrast states like Texas, for example—with 25 million people governed under a unitary regime—with a decentralized confederation like Switzerland, with 8 million people spread over twenty-six mostly self-governing cantons. Most of these cantons have populations of less than 1 million. It might strike some secessionists as fine to centralize political power in Sacramento or Austin or Tallahassee so long as the these polities have escaped the federal boot. But this scheme will only set up an eventual repeat of the sorts of federal abuses we see today.
Reprinted with permission of Mises Institute.