Month: April 2020

Many governors have been issuing statements about the recovery process, and the President has issued “guidelines.” Most of those commenting on the issue have noted that testing is the key to the recovery process and that current levels of testing are inadequate. Part of the problem is a dependence on “the market” to respond to the demand for testing materials. The demand is clear and specific. The problem lies with supply, and the fact that no one is really in charge of the production and delivery of test material. The designation of Jared Kushner, the President’s son-in-law, to deal with industry is not producing results.

Two things stand out. First, this is a logistical problem for which a trained, experienced logistician needs to be responsible. Many such individuals are available in the public and private sector, but they will not be found in the real estate sector. Second, if the efforts of such an expert were strengthened by a declaration of authority under the Defense Production Act, the process could achieve results much more rapidly.

Despite assurances from some political figures that “not everyone needs to be tested,” universal testing is a necessary precondition to the recovery process. Since the virus can be transmitted by asymptomatic people as well as those who are noticeably ill, universal testing is the only way to identify the scope of the problem. Without understanding the scope of the problem, officials will be unable to make an informed decision as to whether or not they have it under control.

A second form of testing also requires management and encouragement. By testing people in order to find those who have a natural immunity to this virus, the scientific community will gain additional data that may be very helpful in developing treatments and vaccines. Although I am not trained as a physical scientist, my training did teach me that more data is always better.

I have confidence that the scientific community is doing its best to identify effective treatments and vaccines. The former is necessary on humanitarian grounds, and the latter is vital for our economic recovery. I can only hope that the Federal Government is helping the process through increased funding and the provision of an effective central, electronic site through which scientists can coordinate their findings. While both are probably taking place, current reporting in the media leaves the public unsure. On the international level, the WHO has served as an important channel for sharing information. Obviously, the sources of that information are not always reliable. However, this does not mean that good data shared through WHO should be ignored or that funding to support the effort should be cut. We always should question the reliability of our sources of information. Some sources should always be viewed as questionable, e.g., Chinese official pronouncements. Telling WHO and our President that they should be very careful about accepting Chinese statements at face value is appropriate. After all, our intelligence community has been reported to have issued just such a warning early in the process. Attempting to kill a messenger who carried an erroneous message makes no sense, particularly if that messenger is one of a very few sources of the information we seek.

We may not achieve a full recovery in the sense of returning to the state of the economy and of the health care system in November 2019. In some ways, we certainly should not. We must learn something from this experience. Obviously, the United States failed to learn lessons from earlier viral pandemics. Sufficient supplies of useable personal protective equipment must be maintained regionally and nationally. Treatment supplies and equipment must also be stockpiled and maintained on a regional and national basis. Administrative procedures must be established in which clear roles and responsibilities are assigned. This would include a coordinated, national research effort into epidemics, and a clear responsibility for guaranteeing that the results of that research inform such activities as replenishing and replacing stockpiled materials as well as treatment and vaccination. This will be expensive, and every American will bear some share of the cost. The alternative is not acceptable.

We have recently been treated to another claim of absolute power by the President of the United States. Such claims are inconsistent with the language of the Constitution and the constitutional history of the United States. Many of the President’s supporters in the legal community claim to be “originalists.” That is, they feel that the Constitution should be viewed today as it was by those who wrote it and voted for its adoption. My remarks are intended to be an “originalist’s” interpretation of executive power even though I have often disagreed with this approach to the Constitution in the past.

 

One of the most historic statements on the issue of absolute executive power was issued at Runnymede, England on June 15, 1215. A group of disgruntled barons forced a despotic king to agreed that the power of the monarch was not absolute. My genealogical research has revealed that I had ancestors on both sides of that argument. Since the common people were in no way involved in this dispute or in its settlement, it was not a great victory for democracy. It does provide the solid legal base for an argument against claims of absolute power.

If we “fast-forward” about 560 years, we find the beginning of our infant nation and early attempts to deal with the issue of executive power. There can be no doubt that the colonies revolted against both king and Parliament, but the prejudice against monarchy was particularly strong. The Articles of Confederation, which outlined the structure of our government during and immediately after the Revolution, make no provision for a national executive. As those who drafted our Constitution met to consider changes to our basic governmental document, most recognized this omission to be serious. The nature of powers of the executive office and the limits placed upon those powers was an issue central to debates over the drafting and ratification of the document. Defenders of Article Two (principally Alexander Hamilton) were forced to spend a great deal of time and effort outlining limitations on executive power and demonstrating why those powers were not absolute.

The argument continued after the adoption of the Constitution. Federalists such as Hamilton and John Adams argued for a strong executive while Anti-Federalists such as James Madison and Thomas Jefferson argued against it and raised the specter of monarchy in their political debates. This debate has continued to the present day, but only recently have claims of absolute executive power been uttered. Certainly the Federalists never offered such an argument.

The current debate concerns the authority to reopen commercial activity following the Covid-19 pandemic. It always nice to see what the framers had to say in the Constitution itself about the involvement of the national government in these matters. Article One, Section Eight, Clause Three grants the authority to deal with interstate and foreign commerce to Congress. Article Two, Section Two deals specifically with the powers of the President and makes no specific mention of emergency powers.

It is possible, of course, to argue that the framers could not have foreseen every contingency and that some “implied” power exists for the President derived from his power as Commander in Chief. I cannot do that here because I stated initially that I was going to be an “originalist.” Therefore, if the framers did not mention this Presidential power, it does not exist.

I also like to think that I am a realist. I must take a look at the actual unfolding of events to understand the real locus of power. When we first became aware of the existence of this corona virus and the threat that it poses, the President dismissed the seriousness of the event and suggested no unusual action or response. He did not assert any executive authority to respond to the pandemic or to its economic ramifications. It was left to the governors of the states to assert the residual powers reserved to them under the Constitution and to restrict activities that might lead to the spread of the virus. These restrictions had clear and understandable economic consequences. When the virus continued to spread, the President criticized governors, in general and in particular, for doing a poor job. He clearly thought that the power rested with them to deal with the virus.

Now, many of the governors are beginning to work with one another to develop strategies for relaxing restrictions and re-opening economic activities when the greatest danger of the pandemic has past. It was this activity that appeared to trigger the assertion of presidential power. One may be forgiven for seeing this as saying, “You take the blame for closing economic activity, and I will take the credit for opening it again.”

In summary, I can find no constitutional source for absolute and unlimited power for the President of the United States in the matter of the economic and commercial aspects of dealing with Covid-19. Congress could grant him such power, but they have not done so. In the historical context and specific language of our Constitution, powers not delegated to the national government are reserved to the states. Congress has shown no desire to interfere with state action in this matter.

Finally, I must observe that many people understand that when one assumes authority, one assumes responsibility. As I watch various governors play leadership roles in responding to the pandemic, I see that they understand this. They are willing to take the blame for the unpleasant aspects of the response. The leader who claims absolute authority must bear absolute responsibility for outcomes whether they be good or bad. Our current President does not seem to understand this.