Introduction: Federalism at the Precipice
Federal systems of government are constructed upon a foundational, and often delicate, balance between a central authority and constituent political units. This division of sovereignty is designed to accommodate regional diversity, foster local governance, and prevent the over-concentration of power. Yet, national emergencies—be they pandemics, natural disasters, or threats to public order—present a profound challenge to this equilibrium. Such crises inherently demand a level of speed, unity, and resource mobilization that can seem at odds with the deliberative, and sometimes fragmented, nature of federalism. The urgent need for decisive, nationwide action often creates a powerful gravitational pull toward the central government, testing the resilience and flexibility of the constitutional compact that binds the nation together. This report posits that the nature of this test, and its ultimate outcome for inter-governmental relations, is largely predetermined by a nation’s unique constitutional architecture, its institutional history, and its prevailing political culture.
The theoretical ideal for navigating such crises within a federal structure is “cooperative federalism.” This model envisions a partnership where national and sub-national governments share power and collaborate on functions that transcend jurisdictional boundaries, functioning not as separate layers but as an integrated, marbled whole. In an emergency, this would manifest as a seamless fusion of federal resources and direction with state and local implementation and expertise. However, the immense pressure of a national crisis frequently exposes the fragility of this ideal. The urgency of the moment can catalyze a shift toward a more centralized, and at times coercive, dynamic, where the federal government imposes its will on the states through mandates and conditional funding. Conversely, a breakdown in cooperation can lead to a dangerously fragmented and uncoordinated response, with constituent units working at cross-purposes, competing for scarce resources, and exacerbating the very crisis they seek to manage.
This report undertakes a rigorous comparative analysis of these dynamics, examining the constitutional frameworks and practical crisis responses of five major federal systems: the United States, Germany, India, Canada, and Australia. By dissecting their legal architecture for emergency powers and their real-world performance during two recent, defining crises—the global COVID-19 pandemic and Canada’s 2022 public order emergency—this analysis will illuminate the varying ways in which the federal compact adapts, strains, and transforms under duress. The objective is to move beyond a simple description of events to a nuanced understanding of the institutional and political factors that determine whether a federal system can achieve the cooperative ideal or succumbs to the centrifugal or centripetal forces unleashed by a national emergency.
The Spectrum of Federal Relations: From Cooperation to Coercion
To comprehend the behavior of federal systems during national emergencies, it is essential to first establish an analytical framework that defines the spectrum of inter-governmental relations. The relationship between central and constituent governments is not static; it exists on a continuum, with historical and political forces, particularly crises, causing shifts along its axis. The predominant models that define this spectrum are dual, cooperative, and coercive federalism.
Theoretical Grounding
Dual Federalism represents the classical conception of the federal state, often analogized to a “layer cake”. In this model, sovereignty is clearly divided. The federal government exercises its enumerated powers independently, while the states exercise their reserved powers independently. Edward S. Corwin defined this model with four postulates: the national government has only enumerated powers; its constitutional purposes are few; within their respective spheres, both levels of government are sovereign and equal; and the relationship between them is one of tension rather than collaboration. While this model emphasizes separation, it does not preclude all forms of inter-governmental collaboration, but it frames the relationship as fundamentally distinct and parallel.
Cooperative Federalism emerged as a response to the complex challenges of the 20th century, which demanded a more integrated approach to governance. Likened to a “marble cake,” this model is characterized by national, state, and local governments sharing power and collaborating on overlapping functions. It recognizes that many policy problems, from environmental protection to public health, do not respect neat jurisdictional lines. The mechanisms of cooperative federalism include federal grants-in-aid, which serve as “bridges across dual federalism,” enabling the national government to fund and influence policy areas traditionally managed by the states. This model is predicated on partnership and shared responsibility, with the federal government often setting national goals that are implemented by state and local bureaucrats.
Coercive Federalism is a more recent and contentious evolution, particularly prominent in the United States since the late 1960s. This model is defined by a substantial growth in the power of the federal government relative to the states. It is characterized by the central government’s ability to override state powers and impose national policies, often through mechanisms that blur the line between inducement and compulsion. Key features of coercive federalism include an unprecedented increase in conditions attached to federal grants, forcing states to comply with federal objectives that may lie outside Congress’s enumerated powers; the proliferation of unfunded mandates, which require states to implement federal policies without commensurate funding; and the federal preemption of state laws, where national legislation explicitly displaces state authority in a given field. This trend signifies a marked shift toward centralization, eroding the autonomy of constituent units.
Emergencies as a Catalyst for Change
National emergencies act as a powerful catalyst, often accelerating a system’s movement along this federalism spectrum. The immense scale of a crisis, such as a pandemic or a catastrophic natural disaster, frequently overwhelms the resources and capacities of individual states and localities. This creates a functional necessity for federal intervention. The central government is typically the only entity with the fiscal capacity, through national disaster funds and borrowing power, and the logistical reach, through national agencies and military assets, to mount an effective large-scale response.
This functional imperative, however, has profound implications for inter-governmental relations. In deploying its superior resources, the federal government is positioned to set the terms of engagement. Emergency funding is rarely unconditional; it is often tied to specific performance requirements, data reporting standards, and adherence to national guidelines. This dynamic mirrors the core mechanisms of coercive federalism, where federal grants are used to “extract more spending on federal objectives from state and local governments”. The urgency of the moment provides the political justification for the central government to impose uniform policies, centralize decision-making, and preempt divergent state approaches, all in the name of national security or public health. Thus, a temporary but significant shift towards a more centralized, and potentially coercive, model becomes a predictable pattern in crisis response, regardless of the system’s pre-existing cooperative arrangements. The critical variable is not
if this centralizing shift occurs, but rather how it is constitutionally constrained, politically managed, and ultimately reversed once the crisis abates.
The Role of Political Polarization
The dynamics of crisis federalism are further complicated by the rise of what scholars have termed “polarized” or “punitive” federalism. In this environment, inter-governmental relations are no longer viewed primarily through the lens of administrative efficiency or constitutional principle, but through the prism of partisan conflict. When the federal executive and a state governorship are held by opposing political parties, cooperation can be replaced by suspicion, and policy disagreements can escalate into public political battles.
During a national emergency, this polarization can be particularly damaging. It can transform emergency management from a collaborative, technocratic exercise into a political contest. The federal government may be perceived as using its emergency powers not for the general welfare, but to reward political allies and punish opponents. This can manifest as “punitive federalism,” characterized by the federal government’s use of threats—such as withholding critical funds or resources—to suppress state and local actions that run contrary to its preferred policies. The COVID-19 pandemic in the United States, for example, saw numerous public disputes between the White House and governors over the severity of the threat, the necessity of lockdowns, and the distribution of medical supplies, illustrating how partisan divisions can fundamentally undermine a cooperative response.
This analysis reveals that the historical trajectory of a nation’s federal system creates a form of “path dependence” that heavily influences its response to a crisis. Federalism evolves in phases, but older institutional forms and norms do not disappear entirely; they persist alongside newer ones. A country with a strong, embedded tradition of cooperative institutions—such as inter-governmental councils and consultative bodies—may be better equipped to manage the centralizing pressures of a crisis through negotiation and partnership. Australia’s ability to quickly stand up the National Cabinet during the pandemic, for instance, drew upon a pre-existing, albeit sometimes cumbersome, culture of inter-governmental forums. Conversely, a system already characterized by the hallmarks of coercive federalism and deep political polarization is likely to see those tensions dangerously exacerbated during an emergency, leading to public conflict, institutional gridlock, and a less effective overall response. The starting point of a nation’s federal culture, therefore, is a powerful predictor of its crisis-response trajectory.
The Constitutional Architecture of Emergency Powers: A Global Comparison
The behavior of a federal system under stress is fundamentally governed by its constitutional and statutory framework for emergency powers. These legal instruments define the triggers for declaring an emergency, allocate authority between the executive and legislative branches, and, most critically for this analysis, recalibrate the balance of power between the central government and its constituent units. A comparative examination reveals that these frameworks are not uniform; they are deeply imprinted with each nation’s unique history, political philosophy, and past experiences with crises.
The United States: A Framework of Executive Discretion
The primary legal instrument governing national emergencies in the United States is the National Emergencies Act (NEA) of 1976. Paradoxically, the Act was passed to rein in presidential power and enhance congressional oversight after a period of perceived perpetual emergency. In practice, however, it has codified a system that grants the President vast and largely discretionary authority. The most significant feature of the NEA is its failure to define what constitutes a “national emergency”. This omission effectively leaves the determination to the sole discretion of the President, a position to which federal courts have historically deferred.
Under the NEA, the President can declare a national emergency simply by signing a proclamation, which unlocks access to more than 100 special statutory powers delegated by Congress over many decades. These powers are extensive, ranging from the authority to freeze financial assets to the ability to redirect military construction funds. While the Act establishes procedural requirements for reporting to Congress, its mechanisms for oversight are weak. An emergency declaration automatically expires after one year unless the President renews it—a routine practice that has led to dozens of emergencies remaining in effect for years or even decades. Congress can vote to terminate an emergency via a joint resolution, but this legislative action is subject to a presidential veto. This means that, in a divided government, Congress effectively needs a veto-proof, two-thirds majority in both houses to end a state of emergency, a formidable political hurdle.
The constitutional basis for these expansive federal powers does not stem from an inherent emergency power granted to the President in Article II of the Constitution. Rather, the President’s authority is derived almost entirely from these statutory delegations made by Congress over time. The constitutionality of these congressional delegations rests on broad interpretations of two key clauses in Article I, Section 8. The
Spending Power (Clause 1) grants Congress the authority to “provide for the common Defence and general Welfare,” which the Supreme Court has interpreted as allowing Congress to attach conditions to federal funds disbursed to the states. This creates a powerful tool of inducement, as seen in cases like South Dakota v. Dole, where highway funds were conditioned on states raising their drinking age. During an emergency, this power allows the federal government to compel state compliance with national objectives in exchange for critical disaster relief funds. The
Commerce Clause (Clause 3), which gives Congress the power to regulate commerce “among the several States,” has also been interpreted expansively to justify federal legislation in areas, including public health, that have an interstate dimension.
Germany: A Constitution of Deliberate Constraint
Germany’s constitutional framework for emergencies, enshrined in its Basic Law (Grundgesetz), stands in stark contrast to the American model. It is a direct and deliberate reaction to the historical trauma of the Weimar Republic, where the broad and ambiguous emergency powers of Article 48 were exploited to dismantle democracy and facilitate Adolf Hitler’s rise to power. To prevent any recurrence, the architects of the Basic Law meticulously avoided creating a single, general emergency clause that could grant sweeping powers to the executive.
Instead, the Basic Law establishes a system of differentiated emergencies, with specific, detailed regimes for distinct types of crises. It distinguishes between an internal emergency (Article 91 and 35), covering natural disasters or an “imminent danger to the existence or free democratic order” of the federation or a state (Land), and an external emergency (Articles 115a-l), which constitutes a “state of defence” in response to an armed attack. A paramount principle woven throughout these provisions is that fundamental rights can only be restricted in a proportionate manner; they can never be suspended.
Crucially, the German framework embeds inter-governmental cooperation directly into its crisis response mechanisms, giving the Länder a powerful institutional role. In peacetime, disaster management is primarily the responsibility of the Länder. During an internal emergency, the federal government can deploy federal police or armed forces to assist a
Land, but if a Land is unwilling or unable to combat a threat to the constitutional order, the federal government may assume control of the state’s police, but this is subject to oversight. The
Bundesrat, the legislative body that represents the governments of the sixteen Länder, is a key player. Its consent is required to determine a state of defence, and it retains significant oversight powers during an internal emergency, including the right to demand the cessation of federal force deployment. Furthermore, in a state of defence, if the Bundestag (the lower house of parliament) is unable to convene, a specially constituted
Joint Committee, composed of members from both the Bundestag and the Bundesrat, can act as an emergency parliament, ensuring that legislative authority is maintained even in the gravest of crises.
India: A Framework for Unitary Transformation
The Constitution of India contains one of the most explicit and powerful sets of emergency provisions among the world’s federal systems. Part XVIII of the Constitution is dedicated entirely to this subject, outlining three distinct types of emergencies: a National Emergency (Article 352), a State Emergency due to the failure of constitutional machinery (Article 356, commonly known as “President’s Rule”), and a Financial Emergency (Article 360).
A proclamation of National Emergency under Article 352 has the most profound impact on the federal structure. The President can declare such an emergency, but only on the basis of a written request from the Union Cabinet, on three specific grounds: “war,” “external aggression,” or “armed rebellion”. The inclusion of “armed rebellion” was a crucial change made by the 44th Amendment in 1978. It replaced the vague and politically malleable term “internal disturbance,” the justification used for the controversial 1975-77 Emergency, thereby creating a higher and more objective threshold for invoking an internal emergency.
Once a National Emergency is proclaimed, the effect on inter-governmental relations is immediate and transformative. The Indian federal system, for the duration of the emergency, effectively becomes a unitary one. The executive power of the Union (the central government) extends to giving directions to any state on
any matter, overriding the normal constitutional division of executive authority. Concurrently, the legislative power of the Union Parliament is expanded, empowering it to make laws on any subject in the State List—the list of powers normally reserved exclusively for state legislatures. While the state legislatures are not suspended, their laws become subject to the overriding power of Parliament. This constitutional design provides for a swift and complete centralization of authority, deemed necessary to protect the nation’s security, unity, and integrity in times of grave peril.
Canada: A Framework of High Thresholds and Consultation
Canada’s approach to emergency powers is governed by the Emergencies Act of 1988, a law born from the desire to replace the draconian and much-criticized War Measures Act. The memory of the invocation of the
War Measures Act during the 1970 October Crisis, which led to widespread suspension of civil liberties, heavily influenced the design of its replacement. As a result, the Emergencies Act is characterized by high legal thresholds, strong democratic safeguards, and a commitment to cooperative federalism.
The Act defines a “national emergency” as an “urgent, temporary and critical situation” that meets one of two criteria: it either “seriously endangers the lives, health or safety of Canadians and is of such proportions or nature as to exceed the capacity or authority of a province to deal with it,” or it “seriously threatens the ability of the Government of Canada to preserve the sovereignty, security and territorial integrity of Canada”. This definition establishes a crucial precondition: a national emergency exists only when the crisis is beyond the capabilities of the provinces, positioning federal intervention as a matter of last resort.
The Act creates four distinct categories of emergencies—public welfare, public order, international, and war—each with a graded set of powers tailored to the nature of the threat. A cornerstone of the Act’s design is the principle of inter-governmental consultation. The federal government is legally required to consult with the provinces and territories before issuing a declaration, unless doing so is not feasible. This requirement institutionalizes the cooperative federalism model directly within the emergency framework. Furthermore, the Act contains robust accountability mechanisms. Any declaration of emergency must be laid before Parliament within seven days for confirmation, and a parliamentary review committee must be established. Most significantly, the Act mandates that a public inquiry be held after the emergency is over to scrutinize the government’s actions, a provision that ensures post-crisis accountability.
Australia: A Modern, Focused Framework
Australia’s federal emergency framework is the most recent, having been significantly updated with the passage of the National Emergency Declaration Act 2020. This legislation was a direct outcome of the Royal Commission into National Natural Disaster Arrangements, which was established following the devastating 2019-20 bushfire season. The Act is designed not to supplant state and territory authority, but to facilitate a more coordinated and rapid national response.
Under the Act, the Governor-General, acting on the advice of the Prime Minister, can declare a national emergency if an event has caused, is causing, or is likely to cause “nationally significant harm”. The primary purpose of such a declaration is threefold: to publicly signal the gravity of the crisis to the community and all levels of government; to trigger the rapid mobilization of Australian Government agencies and resources; and, in clearly defined and limited circumstances, to empower the federal government to take action without a formal request for assistance from a state or territory. This last provision addresses a key challenge identified during the bushfires, where delays in state requests could hinder a timely federal response.
Beyond this new Act, the Australian federal government’s emergency powers are rooted in specific heads of power granted by the Constitution. The most prominent of these in a public health crisis is the quarantine power under Section 51(ix), which gives the federal Parliament exclusive authority over quarantine related to international borders. However, the states retain their own broad powers to manage public health and emergencies within their borders, creating a system of concurrent jurisdiction that necessitates close cooperation. The 2020 Act is intended to streamline this cooperation, not override it.
Table 1: Comparative Framework of National Emergency Powers
| Country | Primary Legal Instrument | Definition of Emergency / Grounds for Declaration | Declaration Authority | Legislative Oversight & Termination | Key Shift in Federal-State Powers |
| United States | National Emergencies Act (1976) | Not defined; left to Presidential discretion. | President | Congress can pass a joint resolution (subject to veto); automatic termination after 1 year unless renewed by President. | Unlocks over 100 statutory federal powers, enabling preemption and conditional funding that can coerce states. |
| Germany | Basic Law (Arts. 35, 91, 115a-l) | Specific grounds: natural disaster, threat to constitutional order (internal); armed attack (external). | Federal Government with Bundesrat consent (external); Federal Government can intervene if a Land is unable/unwilling (internal). | Bundesrat has significant oversight; Joint Committee can act as emergency parliament. | Federal government can give instructions to Länder; broader federal legislative competence in state of defence. |
| India | Constitution of India (Part XVIII) | Specific grounds: war, external aggression, or armed rebellion (Art. 352). | President, on written advice of the Union Cabinet. | Must be approved by both Houses of Parliament within one month and re-approved every six months. Lok Sabha can pass a resolution to revoke. | Transforms the federal system into a unitary one; Union executive can direct states on any matter; Union Parliament can legislate on state subjects. |
| Canada | Emergencies Act (1988) | “Urgent and critical situation” that exceeds a province’s capacity or threatens national sovereignty. | Governor in Council (Federal Cabinet), after consultation with provinces. | Must be confirmed by Parliament within seven days; subject to parliamentary review and mandatory post-emergency public inquiry. | Grants temporary, necessary powers to the federal government when provincial tools are insufficient. |
| Australia | National Emergency Declaration Act 2020 | An emergency causing “nationally significant harm”. | Governor-General, on advice of the Prime Minister. | Declaration is a legislative instrument; can be extended for up to 3 months at a time. | Facilitates mobilization of federal resources and allows federal action without a state request in limited circumstances. |
Export to Sheets
The comparative analysis of these constitutional frameworks reveals two profound underlying patterns. First, the degree of specificity in a constitution’s definition of “emergency” acts as a critical channeling mechanism for future political and legal conflict. The vague, open-ended nature of the U.S. National Emergencies Act inevitably leads to disputes over the legitimacy of the declaration itself. Legal and political battles, such as those surrounding President Trump’s declaration of an emergency to fund a border wall, begin at the very point of invocation because the criteria are subjective and left to the executive. In contrast, the more precise definitions in the Indian and German constitutions—”armed rebellion” or “imminent danger to the…free democratic order”—shift the focus of debate. There is less room to argue about whether a situation meets the constitutional trigger; instead, the conflict moves to how the response is managed and how power is shared between the governmental tiers. Canada’s framework occupies a middle ground, with a definition that is specific (“exceed the capacity…of a province”) but still requires significant interpretation, which predictably became the central legal question in the aftermath of the 2022 convoy protest. The initial drafting of the emergency clause thus sets the stage for all subsequent inter-governmental dynamics, channeling conflict down predictable paths: in the U.S., the path of litigation over executive authority; in Germany, the path of political negotiation within the Bundesrat.
Second, the design of these emergency powers is deeply shaped by what can be termed “historical trauma.” Nations that have endured the authoritarian abuse of such powers have deliberately engineered their constitutions to prevent a recurrence. Germany’s entire emergency framework is a direct and conscious repudiation of the Weimar Republic’s Article 48, with the robust role of the Bundesrat and the inviolability of fundamental rights serving as constitutional firewalls against a slide into dictatorship. Similarly, India’s 44th Amendment was a direct legislative response to the abuses of the 1975-77 Emergency, adding crucial safeguards like the requirement for written Cabinet advice and narrowing the grounds for an internal emergency. Canada’s 1988 Emergencies Act was specifically designed to replace the overreaching War Measures Act, whose use in 1970 was widely seen as an affront to civil liberties. In contrast, the United States and Australia lack a comparable, singular traumatic event in the 20th century that forced a fundamental constitutional reckoning with executive emergency powers. Their frameworks are consequently more a product of pragmatic, incremental evolution, resulting in systems that are more open-ended and grant greater discretion to the executive.
Inter-governmental Relations in Practice: The COVID-19 Pandemic as a Global Stress Test
The theoretical frameworks and constitutional designs of federalism were subjected to an unprecedented, real-world stress test with the onset of the COVID-19 pandemic. This prolonged, multifaceted crisis forced every federal nation to navigate the complex terrain of inter-governmental relations in the face of a pervasive public health threat. The responses varied dramatically, revealing the practical consequences of each country’s unique federal structure and political climate.
A Spectrum of Coordination and Conflict
United States: Fragmented Federalism The American response to the pandemic was a stark illustration of federalism under the strain of deep political polarization. The result was a “patchwork” of state and local public health orders on matters ranging from lockdowns and school closures to mask mandates. While the federal government declared a nationwide emergency under the Stafford Act, empowering the Federal Emergency Management Agency (FEMA) to lead the response and obligate billions in financial assistance, this did not translate into a unified national strategy. Instead, the response was characterized by persistent and public friction between the federal administration and many state governors.
This conflict played out across multiple fronts. There were disputes over the severity of the virus, the necessity of economic shutdowns, and the proper timeline for reopening. Critically, states found themselves in direct competition with one another and with the federal government for scarce resources, including personal protective equipment (PPE), ventilators, and testing supplies. FEMA and the Department of Health and Human Services (HHS) struggled to manage a chaotic supply chain, with states reporting that federal authorities were seizing or redirecting orders they had placed. The Centers for Disease Control and Prevention (CDC), traditionally the nation’s leading public health voice, was often sidelined, its role reduced to issuing guidance that states were free to adopt or ignore. This fragmented approach demonstrated a system where the ideals of cooperative federalism were largely supplanted by partisan division and a lack of clear, consistent federal leadership, leading to what some scholars have described as an “erratic, insufficient, and sometimes destructive” federal role.
Germany: Cooperative but Contested Federalism Germany’s pandemic response was a classic example of its model of cooperative, or “interlocking,” federalism in action. Under the federal Infection Protection Act, primary authority for implementing public health measures rests with the sixteen Länder. The federal government, primarily through the Robert Koch Institute (RKI), played a crucial coordinating and scientific advisory role, providing data and recommendations. Key decisions were made through a process of regular, intensive consultation between the Chancellor and the Minister-Presidents (premiers) of the
Länder.
This system allowed for regional flexibility, but also produced a “patchwork” of regulations across the country, with different rules on school closures, shop openings, and contact restrictions. While this process was fundamentally cooperative, it was not without significant public conflict. Chancellor Angela Merkel frequently advocated for a more cautious, unified national approach, while several state premiers, eager to ease economic burdens, pushed for faster reopening. These disagreements were often aired publicly, showcasing the inherent tension between the desire for national consistency and the constitutional assertion of state autonomy. Later in the pandemic, the federal government passed an “emergency brake” law to impose uniform measures in high-incidence areas, a move that centralized authority but was later upheld by the Federal Constitutional Court. Overall, the German experience was one of negotiated federalism, where a consensus-based approach ultimately prevailed, but only after considerable and often contentious political bargaining.
India: Centralized Federalism In a starkly different approach, India’s response was defined by the decisive and sweeping exercise of central power. On March 24, 2020, the central government, invoking the Disaster Management Act of 2005, imposed a nationwide lockdown with only a few hours’ notice, effectively treating the entire country as a single unit. The National Disaster Management Authority (NDMA), chaired by the Prime Minister, became the central command, issuing binding orders and guidelines that all states and Union Territories were mandated to enforce.
This top-down strategy has been sharply criticized in scholarly analyses as a manifestation of India’s “dysfunctional,” highly centripetal federalism. Critics argue that the one-size-fits-all lockdown ignored the vast diversity among Indian states in terms of infection rates, healthcare capacity, and economic structure. By preventing state and local governments from tailoring responses to local conditions, the centralized approach imposed immense economic hardship, particularly on migrant laborers, for what some argue were limited and temporary public health benefits. The response highlighted the constitutional capacity of the Indian system to transform into a unitary state during a crisis, but it also raised profound questions about the wisdom and effectiveness of sidelining state governments in a crisis of such complexity and regional variation.
Canada: Collaborative Federalism Under Strain Canada’s initial response to the pandemic was a demonstration of effective inter-governmental collaboration. The federal, provincial, and territorial governments worked closely on key national measures, including closing international borders, procuring vaccines and PPE on a national scale, and rolling out massive federal financial support programs for individuals and businesses. Public health, however, remains a matter of primarily provincial jurisdiction under the Canadian Constitution, meaning that the implementation of on-the-ground measures like lockdowns, mask mandates, and school closures was left to the provinces.
As the pandemic wore on, this division of responsibility led to significant divergence in provincial strategies. The four Atlantic provinces successfully collaborated to create the “Atlantic Bubble,” restricting entry from the rest of Canada and maintaining very low case numbers for a prolonged period. In contrast, larger provinces like Ontario, Quebec, and Alberta pursued different mitigation strategies, resulting in multiple waves of infection, prolonged lockdowns, and significantly higher case and death rates. This divergence highlights both a strength and a weakness of Canadian federalism: it allows for regional experimentation and tailored responses, but it can also lead to profoundly different outcomes for citizens depending on the policy choices of their provincial government.
Australia: Innovative Federalism Faced with the unprecedented crisis, Australia’s leaders chose to innovate their inter-governmental machinery. The existing Council of Australian Governments (COAG) was seen as too cumbersome and bureaucratic for a fast-moving crisis. In its place, the Prime Minister and the state and territory premiers formed the National Cabinet, a more agile, ad-hoc body designed for rapid, collaborative executive decision-making.
The National Cabinet was widely credited with facilitating Australia’s initially successful and coordinated response, including the decision to close international borders and implement an early lockdown. It operated on a consensus basis, functioning as a forum for political leaders to share information and agree on a national approach. However, the unity forged in the early days of the crisis began to fray as the pandemic evolved. The system was severely tested by disputes over internal state border closures, with states like Western Australia maintaining a “hard border” long after others had reopened, creating significant economic and social disruption and leading to high-profile legal challenges. This experience suggests that while ad-hoc political bodies can be highly effective in the acute phase of a crisis, they may be less resilient to the sustained pressures and divergent regional interests that emerge in a prolonged emergency.
The Judiciary as the Ultimate Arbiter
During the pandemic, courts across these federal systems were called upon to adjudicate bitter disputes over the legality and constitutionality of emergency measures. In doing so, they played a critical role not just in protecting individual rights, but in actively defining the boundaries of federal and state power in a crisis.
United States Supreme Court: The U.S. Supreme Court’s rulings on federal vaccine mandates served as a masterclass in judicial boundary-setting. In National Federation of Independent Business v. OSHA (2022), the Court stayed the Occupational Safety and Health Administration’s rule requiring large employers to mandate vaccination or weekly testing. The majority reasoned that OSHA’s authority was limited to regulating specific workplace hazards, and that a universal vaccine mandate was an overreach into the broader domain of public health—a power traditionally reserved to the states. However, on the very same day, in
Biden v. Missouri (2022), the Court allowed a similar mandate from the Centers for Medicare & Medicaid Services (CMS) for healthcare workers to proceed. The crucial distinction was the legal basis: the CMS rule was upheld as a valid exercise of Congress’s Spending Power, as the government was entitled to place conditions on facilities that voluntarily participate in and receive federal Medicare and Medicaid funding. These divergent outcomes demonstrated that the legitimacy of federal action in a crisis hinges critically on the specific constitutional power being invoked. The Court acted as a “federalism umpire,” striking down what it saw as a direct federal command in an area of state authority while upholding an action based on the federal government’s power of the purse.
German Federal Constitutional Court: Germany’s highest court consistently played the role of rights-protector and enforcer of proportionality. Throughout the pandemic, it received numerous constitutional complaints challenging lockdown measures. While acknowledging the state’s duty to protect life and health, the Court consistently ruled against blanket prohibitions that failed to consider individual circumstances. In several key decisions, it struck down outright bans on public protests and religious services, ordering authorities to instead make case-by-case assessments and consider less restrictive alternatives, such as allowing demonstrations with social distancing or religious services with limited attendance. The Court’s guiding principle was that fundamental rights, while not absolute, could only be restricted, never effectively suspended, and any restriction must be demonstrably necessary and proportionate to the public health aim. This jurisprudence forced a continuous balancing act on the executive, preventing the emergency from becoming a justification for the wholesale suspension of constitutional freedoms.
High Court of Australia: The most significant constitutional challenge in Australia concerned the hard border closure imposed by Western Australia. In the case of Palmer v Western Australia (2021), billionaire Clive Palmer argued that the closure violated Section 92 of the Australian Constitution, which mandates that “trade, commerce, and intercourse among the States…shall be absolutely free”. The High Court unanimously rejected this challenge. It reasoned that the “absolutely free” provision is not absolute and can be subject to reasonable and proportionate restrictions necessary for a legitimate public purpose, such as protecting public health during a deadly pandemic. The Court accepted evidence that the hard border was, at that stage of the pandemic (before widespread vaccination), the most effective measure to prevent the importation of the virus into a state that had achieved elimination. This landmark decision powerfully affirmed the scope of state power to take extreme public health measures in an emergency, even when those measures directly impact a core principle of the Australian federal compact.
Supreme Court of India: In contrast to the more interventionist stances of its counterparts, the Supreme Court of India largely adopted a posture of deference to the executive branch’s handling of the pandemic. This was most evident in the case concerning the PM CARES Fund. A petition argued that this newly created public charitable trust, which was not subject to audit by the Comptroller and Auditor General (CAG), circumvented the statutory National Disaster Response Fund (NDRF), and that all contributions should be transferred to the NDRF for transparency and accountability. The Court dismissed the petition, ruling that the government was within its rights to create a separate fund for a public health emergency and that individuals were free to donate to either fund. The Court declared that it would not sit in judgment on the financial decisions made by the government in a crisis, a decision that affirmed broad executive prerogative and limited judicial oversight of the financial aspects of the pandemic response.
A Different Crisis: Public Order and the Canadian Emergencies Act
To test the generalizability of the patterns observed during the pandemic, it is instructive to analyze a crisis of a different nature: a public order emergency. The 2022 “Freedom Convoy” protest in Canada provides a compelling case study, as it led to the first-ever invocation of the country’s Emergencies Act and put the delicate balance of Canadian federalism under intense scrutiny.
The 2022 Convoy Protest
In January 2022, a protest initially organized to oppose a federal vaccine mandate for cross-border truck drivers evolved into a much larger movement against all COVID-19 public health measures and the sitting government. Convoys of trucks and other vehicles converged on the nation’s capital, Ottawa, leading to a weeks-long occupation of the city’s downtown core. Concurrently, related protests established blockades at several critical Canada-U.S. border crossings, most notably the Ambassador Bridge in Windsor, Ontario—a vital trade artery—and the port of entry at Coutts, Alberta. The blockades caused significant economic disruption, while the occupation of Ottawa resulted in widespread public disorder, harassment of residents, and a breakdown of municipal law enforcement.
First-Ever Invocation of the Emergencies Act
After weeks of escalating crisis and what was widely perceived as a failure of municipal and provincial policing to restore order, the federal government took the unprecedented step of declaring a “public order emergency” under the Emergencies Act on February 14, 2022. This was the first time the 1988 Act had ever been used. The declaration granted the federal government extraordinary temporary powers, which it used to enact two key sets of measures: the
Emergency Measures Regulations, which prohibited participation in certain public assemblies and directed tow truck operators to assist police, and the Emergency Economic Measures Order, which authorized financial institutions to freeze the bank accounts and other assets of individuals and corporations involved in the illegal blockades without a court order. These measures were highly effective, and the protests in Ottawa and at the borders were cleared by police within days of the Act’s invocation.
Federalism at the Forefront
The government’s justification for invoking the Act was rooted in the principles of Canadian federalism. A central legal threshold of the Act is that a crisis must be of such a scale that it “exceed[s] the capacity or authority of a province to deal with it”. The federal government argued that this threshold had been met. It pointed to the failure of the Ottawa Police Service to manage the occupation, the significant national economic harm caused by the border blockades, and requests for additional resources from provincial and municipal authorities as evidence that the situation had spiraled beyond provincial control. The invocation was thus framed as a necessary federal intervention of last resort, a backstop to be used only when the sub-national level of government proved incapable of resolving the crisis on its own. This framing placed the division of powers, particularly in the realm of policing and public order, at the very center of the debate.
The Aftermath: Inquiry and Judicial Review
The use of the Emergencies Act triggered two significant accountability processes, both of which delved deeply into the inter-governmental dynamics of the crisis.
Public Order Emergency Commission (POEC): As mandated by the Act, the government established a public inquiry, led by Justice Paul Rouleau. The POEC held extensive public hearings, taking testimony from the Prime Minister, cabinet ministers, provincial premiers, police chiefs, and protest organizers. Its final report, released in February 2023, provided a sweeping analysis of the “series of policing failures” and a breakdown in communication and coordination between different levels of government that allowed the protests to escalate. While concluding that the federal government had met the “very high threshold” for invoking the Act, Justice Rouleau characterized it as a reluctant decision made necessary by the failure of other levels of government to fulfill their responsibilities.
Federal Court Ruling: Civil liberties organizations, including the Canadian Civil Liberties Association, challenged the government’s actions in court. In a landmark decision in January 2024, the Federal Court ruled that the invocation of the Emergencies Act was unreasonable and that the measures enacted infringed upon rights guaranteed by the Canadian Charter of Rights and Freedoms. Justice Richard Mosley found that the government had not demonstrated that the high legal threshold for a “national emergency” had been met. Specifically, he concluded that there was no evidence of a threat of “serious violence” as defined in the Act, and that the situation could have been dealt with using existing provincial laws and police powers. The Court’s decision directly contradicted the conclusion of the POEC and represented a significant judicial check on the federal executive’s use of emergency powers. The federal government has announced its intention to appeal the ruling.
This case study reveals a critical aspect of crisis federalism. Even in a system like Canada’s, which is constitutionally designed with a federal emergency power as a backstop, the threshold for overriding provincial jurisdiction, especially in core areas of sub-national responsibility like policing and public order, is exceptionally high and subject to rigorous legal and political scrutiny. The Federal Court’s ruling reinforces the principle that federal emergency powers are a tool of absolute last resort. Their use is not justified simply because a provincial or municipal response is slow, poorly managed, or politically inconvenient. There must be a demonstrable and genuine incapacity at the sub-national level to handle the crisis using all available existing laws. This sets a powerful precedent that protects the federal balance of power, ensuring that a crisis does not become an automatic pretext for federal overreach. This stands in sharp contrast to a system like India’s, where the central government is constitutionally empowered to intervene and assume control much more readily when it deems a state’s governance to be failing.
Synthesis and Analysis: Emerging Patterns in Crisis Federalism
The comparative analysis of constitutional frameworks and their practical application during the COVID-19 pandemic and the Canadian convoy protest reveals distinct patterns in how federal systems operate under extreme stress. No single trend, such as an inexorable march toward centralization, adequately captures the complexity of these dynamics. Instead, different federal nations follow divergent paths, shaped by their institutional designs, legal precedents, and political cultures.
Centralization vs. Decentralization Revisited
The evidence demonstrates a spectrum of responses rather than a uniform movement. India’s constitutionally sanctioned framework for transforming into a unitary state during a crisis represents a model of extreme constitutional centralization. The central government’s invocation of the Disaster Management Act during the pandemic was not an ad-hoc power grab but the activation of a pre-designed constitutional mechanism for central control.
At the other end of the spectrum, the United States exhibited functional decentralization hampered by political conflict. Despite the existence of powerful federal tools under the Stafford Act and the NEA, the pandemic response was largely driven by state-level decisions. The lack of a cohesive national strategy and the intense partisan friction between the White House and many statehouses resulted in a fragmented, state-by-state approach that highlighted the limits of federal authority in the absence of political consensus.
Germany and Canada exemplify a model of negotiated federalism. In both countries, constitutional and statutory frameworks mandate consultation and cooperation between the federal and sub-national governments. Centralization of power is possible, as seen with Germany’s “emergency brake” legislation, but it is temporary, politically contested, and often requires a degree of inter-governmental consent or, at a minimum, intensive negotiation. The Canadian
Emergencies Act is explicitly designed as a last resort, to be used only when provincial capacity is exceeded, a high threshold that, as the Federal Court ruling showed, is subject to strict judicial interpretation.
Finally, Australia’s experience points toward a model of politically adaptive federalism. Faced with a novel crisis for which existing inter-governmental machinery was ill-suited, political leaders created a new, ad-hoc institution—the National Cabinet—to facilitate coordination. This demonstrates that in some systems, the flexibility to innovate politically can be as important as the formal constitutional structure.
Effectiveness of Institutional Design
Comparing these models raises questions about their relative effectiveness. Did the formal, constitutionally-embedded cooperative mechanisms of Germany’s Bundesrat, which ensures the Länder have a permanent voice in federal legislation and crisis management, prove more resilient to political pressure than the informal, leader-driven consensus of Australia’s National Cabinet? The German system, while often slow and contentious, provided a structured and predictable forum for resolving federal-state disputes. The Australian model, while highly effective initially, proved more fragile when political consensus between the Prime Minister and certain premiers fractured over issues like internal border closures.
Similarly, the high-threshold, consultative Canadian model, with its mandatory post-crisis inquiry, provides powerful democratic safeguards against executive overreach, as evidenced by the intense scrutiny applied to the 2022 invocation. This contrasts sharply with the discretionary U.S. model, where the lack of a clear definition of “emergency” and weak legislative checks create a greater potential for the use of emergency powers for politically motivated ends, with the judiciary often left as the primary, and often slow, check on executive power.
The Indispensable Role of Leadership and Trust
Ultimately, this analysis underscores that legal and constitutional frameworks, while critically important, are not the sole determinants of a federal system’s performance in a crisis. The quality of political leadership and, perhaps most importantly, the pre-existing level of trust between federal and state leaders emerge as paramount variables.
In the early stages of the pandemic, a high degree of trust and a shared sense of purpose allowed for effective collaboration in countries like Canada and Australia, leading to swift, coordinated action on national priorities like border closures and economic support. Conversely, in the United States, where the political environment was already characterized by low trust and hyper-partisanship, the federal system itself became a source of friction. The crisis did not unite the country’s political leaders; instead, it provided a new and urgent arena for them to continue their political battles, hindering the development of a coherent and effective national response. This suggests that a resilient federal system requires more than well-designed institutions; it requires political actors who are willing and able to use those institutions for their intended cooperative purpose, especially when the stakes are highest.
Conclusion: Forging Resilient Federal Systems for Future Emergencies
Summary of Key Findings
This comparative analysis of inter-governmental relations during national emergencies reveals that the federal compact is a dynamic and contested space, profoundly reshaped by the pressures of crisis. The investigation yields several key findings. First, the idealized model of cooperative federalism is exceptionally difficult to maintain under the strain of an emergency, which creates powerful functional and political pressures for the centralization of authority. Second, the trajectory of a federal system’s response is heavily influenced by its constitutional “original sin”—the degree of specificity in its emergency powers framework—and by the “historical trauma” that has shaped its legal safeguards against executive overreach. Third, in the crucible of a crisis, the judiciary often transcends its traditional role of rights-protector to become a primary “federalism umpire,” actively defining the boundaries of national and sub-national power in real-time. Finally, beyond formal structures, the resilience of a federal system depends critically on its capacity for political innovation, as seen in Australia’s National Cabinet, and on the indispensable, yet fragile, elements of political leadership and inter-governmental trust.
Policy Recommendations
As nations confront a future likely to be defined by concurrent and overlapping crises—from pandemics and climate-related disasters to cybersecurity threats and geopolitical instability —strengthening the resilience of federal systems is a matter of paramount importance. Based on the patterns identified in this report, the following recommendations are offered for policymakers in federal nations:
- Clarify Legal Frameworks to Reduce Ambiguity. The U.S. experience, in particular, demonstrates that ambiguity in the definition of an “emergency” and the scope of executive powers is a recipe for political and legal conflict, which can paralyze a crisis response. Legislatures should undertake the difficult but necessary work of defining the triggers for emergency declarations more precisely. This should include establishing clearer, objective criteria for invocation, delineating the specific powers that are unlocked by different types of emergencies (as in Canada), and embedding sunset clauses that force legislative re-authorization for prolonged crises.
- Strengthen Permanent Inter-governmental Institutions. Relying on ad-hoc political arrangements or the goodwill of individual leaders is a fragile strategy. Federal systems should invest in and empower permanent, well-resourced institutions dedicated to federal-state coordination before a crisis strikes. Germany’s Bundesrat, which provides the Länder with a constitutionally guaranteed role in federal decision-making, offers a model for a robust, institutionalized forum for negotiation and consensus-building. Such bodies can provide a stable and predictable channel for communication and dispute resolution when informal relationships break down.
- Mandate and Enhance Democratic Oversight Mechanisms. The concentration of power in the executive during an emergency is often necessary for swift action, but it must be balanced with robust accountability. The Canadian model, which mandates both contemporaneous parliamentary review and a comprehensive, independent public inquiry after an emergency has ended, provides a powerful template for ensuring transparency and learning lessons for the future. Making such post-crisis reviews a statutory requirement can help depoliticize the process of identifying failures and drive meaningful reform.
- Develop Contingency Plans for “Federalism Failures.” The rise of political polarization means that policymakers must anticipate and plan for scenarios in which inter-governmental cooperation breaks down. As one scholar noted, it is crucial to develop “failsafe mechanisms to prevent key institutions from abdicating their responsibility to the American people”. These contingency plans should address critical questions: How will essential goods and services be distributed if states are in competition? Who has the ultimate authority to implement cross-jurisdictional measures if a state refuses to act? How can the continuity of response be maintained amidst public federal-state disputes? Planning for these worst-case scenarios is no longer a theoretical exercise but a practical necessity for building a truly resilient federal system.
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