The Framers Would Have Been Appalled but Unsurprised by the President’s Failure to Get the COVID-19 Crisis Under Control: They Would Tell Him to Get Moving Now

Posted in: Constitutional Law

Forgive me for reciting history at this time of great national crisis, but I believe it will provide some needed illumination. The bottom line: the Framers expected self-serving Presidents and members of Congress. No surprise there. But they did create a system and hope each President would take on the national disasters that require coordination. The current administration’s failure to take on the national coordination needs of the COVID-19 pandemic is predictable, appalling, and just wrong, as a matter of constitutional obligations.

When the Framers met in Philadelphia during that steamy summer of 1787, their charge was to fix the failed Articles of Confederation. The Articles had created a loosely-united set of 13 states, with no overarching power, and the result was border skirmishes and a refusal to contribute toward the good of the whole. The center could not hold. This semi-autonomous set of sovereigns was simply incapable of coordinating themselves in order to wage defensive war or to conduct foreign trade. The states acted as though their “required” contributions to a national fund were a matter of prerogative, as opposed to obligation.

So the Framers gathered at Carpenter Hall, and started a discussion that would come to be called the “Debates.” Why a debate, and not a pleasant exchange? Because they honestly didn’t know what the hell to do about the situation. But they also knew that they had to do something, anything, or there would be worse conflict and the towering victory of 1776 against the British crown would be for naught. This was an emergency.

Lucky for us, they started from a wise view of power, which turned out to be the concrete foundation for American constitutionalism: every person who holds power will be tempted to abuse it. Most will, but some won’t. It’s not a sunny assessment of human nature, but it is accurate. The goal of the debates was to construct a system of government that would deter abuses of power and simultaneously drive public decisionmaking toward the common good.

The Framers eventually agreed that they had to create some kind of national government, which would be a sovereign distinct from the states’ persisting sovereignty. They would leave the vast majority of lawmaking to the states (like the law of property, family, and commerce), but they would carve out enumerated powers for this national government to bring together a center of power that could carry out the needs of the states as a whole (wage war, negotiate foreign trade, and govern interstate commerce).

One of the most interesting debates among the Framers was over how to construct the executive branch. You can imagine the resistance to a single executive leader, because of the instinctual fear of a monarchy. They debated: should there be a committee of presidents or should there be just one person at the top? As you know, the eventual answer was just one person. Why? Not because they felt sanguine that a single person could be trusted. Rather, they believed that at times of national emergency, when the states were not coordinating effectively, one person would be the most efficient and effective leader. That’s right, we have one President for situations just like the COVID-19 disaster!

The Framers would have predicted the governors’ competitive bidding for protective gear and ventilators we see today. These governors are doing precisely what they should be doing to protect their citizens at all costs, and what the Framers foresaw. In response, the Framers would have expected (or at least hoped, because, remember, they did not have that high an opinion of human nature) that the President would use all of his powers to coordinate the states to achieve the best possible outcome for the public good.

Yet, what do we have? A President who has avoided the massive coordination that is needed to prevent as many American deaths as possible. He has treated the states’ Darwinian battle over lifesaving equipment as an acceptable, even inevitable, state of affairs, and refused to exercise his authority, which he undeniably has during a state of emergency, to order all Americans to stay at home. He and his administration keep talking about the federal government being a “support” for the states. And they have this bizarre reverence for the decisional autonomy of private industry. It is all so ridiculous in the face of a national crisis. The Framers created a one-person presidency precisely for moments like this one.

As New York’s Governor Andrew Cuomo sagely points out on a daily basis with every analogy, chart, quote, and image he can muster (and thank God for that), the role of the President in this difficult time is to coordinate, and impose a national system that saves lives. It’s simple to be honest. But it has escaped the Trump administration, as it tragically prepares to blame the states for the death toll. Trump has gone so far as to criticize New York hospitals for not buying enough ventilators years ago. What?!

It’s later than it should be but it’s not too late for the federal government to do three things: (1) issue a stay-at-home order for every citizen not engaged in essential work (trust me, Mr. Trump, you have that power in this emergency—it is fake federalism to act like the power to issue such orders solely resides with the governors); (2) deploy the military to coordinate the movement of lifesaving equipment from state to state as needed for the purpose of saving lives; and (3) order every business in the United States with capacity to manufacture right now ventilators, masks, face shields, gloves, and gowns.

The last point requires the President to invoke the Defense Production Act to order industries to stand down from their ordinary business activities and to step up for the national good. There isn’t enough of anything right now to protect everyone who is being exposed to this virus including workers in healthcare, child protective services, grocery stores, restaurant takeout, government, and every other essential worker.  What is so chilling is that the administration fully knows this, as it watches and charts the deaths of American citizens.

Now that the CDC has urged everyone to wear a face-covering, it is obvious that we all needed at least surgical masks, if not N95 masks, from the beginning of the outbreak. Don’t tell us to sew our own facemasks when you can order the production of reliable masks. And don’t guilt the American public that purchased masks to protect themselves from this scourge when you have refused to increase production to the nation’s actual needs.

Mr. President: Just do it.

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