COVID-19 Crisis: Time to Turn from Reaction to Reconstitution
COVID-19 Crisis: Time to Turn from Reaction to Reconstitution
The rest of government needs to re-emerge.
In the COVID-19 crisis, government power and public attention have gravitated toward the presidency, and naturally so. The Constitution was intended to empower presidents to lead in crises, and to hold them accountable for doing so. Since its ratification, the subsequent two centuries of statutes, institutions, and norms have only further concentrated the presidency’s powers and obligations in times of crisis.
But now, many weeks after the coronavirus arrived on American shores, the nation has reached a point where management of public health requires fundamental shifts in public administration. Specifically, the responsibilities for making policy, protecting public health, and disseminating information need to be disaggregated from the White House and reconstituted in Congress, in state and local governments, and in other constitutional institutions. Making this shift is one of the greatest challenges in constitutional governance, but it is crucial—and urgent.
Energy in the Executive, At First
To be sure, the Constitution’s provisions empowering and obligating the president to lead the initial reaction to a crisis are invaluable. The Framers intended to create a government that would exemplify not just stability but also energy, and especially executive energy in times of crisis. As Alexander Hamilton famously put it, in Federalist No. 70, “energy in the Executive is a leading character in the definition of good government”; an energetic and accountable executive branch is “essential to the protection of the community against foreign attacks” and “not less essential to the steady administration of the laws.”
One of the reasons that only a president and a well-functioning executive branch can respond effectively to crisis is what Hamilton called “unity”—the singleness of the president, and the executive branch directed by that lone figure, can make decisions and then act to implement them swiftly and (where necessary) secretly. This was true from the start in George Washington’s administration, but it is all the more so today, as presidential historian Tevi Troy detailed this in his 2016 book, Shall We Wake the President?. The president has broad powers to act rapidly during emergencies—some rooted in the Constitution itself, many others legislated for the president by Congress—and the modern administrative state gives him unrivaled access to resources and expertise, as exemplified by President Trump’s key task-force advisers, Dr. Anthony Fauci of the National Institutes of Health and Dr. Deborah Birx of the State Department (about whom, more in a moment).
So it is natural that President Trump and his administration would be the focus of both government power and public attention in the opening days and weeks of the COVID-19 crisis, a crisis that began as (per Hamilton) a “foreign attack” (in an epidemiological sense) before becoming a matter of “steady administration” at home.
Crisis and the Crucial Turning Point
But precisely because the Constitution leaves room for the president to take the lead when crisis strikes, one of the most difficult challenges in all of American constitutionalism is to recognize when it is time for government to pivot back toward a more normal footing—that is, one in which Congress, the states, and other institutions not only play more significant roles but also are seen by the public as doing so.
This is easier said than done. In modern crises, like the present pandemic, the executive branch quickly and naturally assumes roles normally played by other institutions: It becomes the predominant source of national policymaking, instead of Congress; it becomes the predominant voice on matters of public safety, instead of state and local governments; and it becomes the predominant source of crucial information for the public, in place of various institutions. When the crisis passes it deserves credit for its successes and accountability for its failures.
This sudden concentration of national power and prominence in the executive, at a moment of crisis, is crucial yet natural. But returning those powers and responsibilities to their proper places, when the time comes, is crucial yet difficult. The nation needs these roles to be disaggregated from the executive branch because its government works best when each institution focuses on doing the job that it was originally designed to do. But the disaggregation requires concerted effort by many institutions.
This disaggregation of power will improve Congress and the states, but it will also improve the executive branch itself. For when the executive branch takes on the ordinary powers and responsibilities of the rest of government, it undermines its own ability to best accomplish its own fundamental constitutional role: the “steady administration” of American law and policy.
Congress Needs to Legislate, Not Vacate
Any candid discussion of Congress’s legislative role must admit that Congress long ago ceased to act as the Constitution’s “first branch.” After more than a century of vesting immense powers in the president and agencies, Congress today seems far less interested in the hard work of formulating, deliberating, and enacting legislation. The COVID-19 outbreak is no time to relitigate that general problem, to say the least. But the extraordinary problems that COVID-19 brings does raise particular issues of congressional power and responsibility that require specific attention.
At the outbreak of a crisis, as mentioned above, the president is particularly well suited to make policy judgments and to implement those judgments through the agencies. This is a function of not just the Constitution itself, but also of statutes: such laws as the Defense Production Act, passed by Congress to strengthen the government’s ability to respond to crises; various emergency-power statutes; and the president’s broader portfolio of statutory powers and other non-legal norms and institutions that enable him to react swiftly to threats.
But a crisis like COVID-19 quickly raises problems well beyond the reach of ordinary statutes. It challenges familiar agency processes and norms that were built for ordinary times with old statutes. And such a crisis creates problems for which no old statutory framework exists at all, as we saw when the swift and enormous economic burdens caused by COVID-19 and by the public-health actions taken in response quickly outpaced the Trump administration’s and the Federal Reserve’s normal capacity for unilateral remedies. The moment when the nation comes to rely most heavily on the president and his agencies becomes the very moment when Congress is most needed to leap into action.
The initial rounds of COVID-19 legislation were a strong start, but as my colleague Yuval Levin and I wrote recently, Congress needs to do more, longer. It needs to legislate on an ongoing basis, in smaller and more precise enactments that give the president and agencies meaningful direction and limits.
Congress needs to reassert this power as the nation’s policymaking body, because the compromise and deliberation necessary for legislative policymaking is better suited to produce effective and widely acceptable laws needed to overcome the crisis while preserving national unity. But also, and no less importantly, Congress’s reassertion of its own institutional role is necessary to make the executive branch the best possible version of itself in responding to the crisis.
As Hamilton observed, the executive’s crucial constitutional role is not to provide “energy” aimlessly, but rather to provide energy for the “steady administration of the laws.” And, perhaps counterintuitively, this requires Congress to legislate meaningful limits and direction for the executive: Without such limits and direction, a president and his administration are more prone to vacillate wildly among possible courses of actions. When Congress enacts new laws in response to a crisis, it channels the executive branch’s Hamiltonian energy for the sake of steady administration.
In addition to legislation, Congress should undertake sustained and meaningful oversight. While every president bristles at congressional oversight, the need for oversight of the administration’s response to the COVID-19 outbreak and its execution of the newly enacted $2 trillion relief legislation seems particularly acute in light of President Trump’s words and deeds in the crisis so far—from his assertion, before Congress passed the relief act, that “I’ll be the oversight” in how agencies distribute hundreds of billions of dollars; to his formal statement, upon signing the relief act, purporting to reduce the power of the new Special Inspector General for Pandemic Recovery; to his widely scrutinized removal of the newly created Pandemic Response Accountability Committee’s initial chairman, Glenn Fine, just days into the job. These incidents and others make congressional oversight as important as ever.
But the crisis calls for more than just the negative oversight of constraining the administration and spotlighting possible mistakes. It calls also for the positive oversight of raising questions that might otherwise go unasked within the administration, and of offering answers that might otherwise go overlooked within it. It calls for a Congress, and especially a Senate, that invests itself deeply in constitutional administration.
None of this is possible during the initial shock of crisis, of course. And again, it is only natural that the president would be the nation’s predominant policymaker at the moment that the crisis hits. But now that America has passed that initial point of impact, Congress must reassert itself.
Majority Leader Steny Hoyer’s comment this week that the House of Representatives will not reconvene until early May “absent an emergency,” in the middle of the single worst public-health emergency in decades, ought to embarrass every member of Congress. As Justice Robert Jackson observed in his seminal Supreme Court opinion on presidential emergency powers, “a crisis that challenges the President equally, or perhaps primarily, challenges Congress,” but in those moments “only Congress itself can prevent power from slipping through its fingers.”
The States Need to Lead on Public Safety —and to Be Seen as Doing So
For weeks now, the daily news has been dominated by President Trump’s pronouncements on public-health policies being undertaken to prevent the spread of COVID-19, and his stated hopes for when the crisis will pass and the heavy burdens of social distancing will no longer be necessary. From his startling but short-lived goal of getting the country “opened up and just raring to go by Easter,” to his new goal of “opening” the country back up on May 1, President Trump speaks as though the decision to “open” the country is his to make—or that such a decision rests in the hands of any one official. The nation’s obsessive focus on his words in this crisis would seem to suggest as much, too.
But in reality, the president’s powers on these questions, and other questions of public health and safety, are very limited. As we are beginning to see, as small bands of East- and West-coast states assert themselves to fill the governance vacuum, matters of public health and safety are largely the responsibility of governors and mayors, who act pursuant to state and local laws to impose shutdowns, stay-at-home orders, and quarantines. The president and his administration can suggest guidelines; he can support state and local efforts through the production and distribution of equipment and other resources; he can order federal agencies to take all lawful actions necessary to accelerate the development of therapeutics and ultimately a vaccine; and he can take other actions to mitigate the cascading spread of the virus into the United States from abroad or from one state to another. But for real decisions shutting down economic activity or reopening it, the president’s role is merely a supporting one; the most significant powers to act, and responsibility for those actions, rest with state and local officials.
In short, the president’s new assertion that he has “total,” “ultimate authority” is astonishingly frivolous, though his comments (and his subsequent tweets) raise questions of whether President Trump is planning to leverage federal resources to force states to comply with his policies by threatening to withhold federal support from states who act independently to protect their citizens, a move that would not be surprising but would raise major questions of constitutional law and statutory interpretation.
In the end, the Constitution’s allocation of powers to the president and to the states are a fact regardless of whether the president, the press, or other observers say so. But the lack of clear and consistent public messaging and education on this point undermines one of the most important parts of constitutional government: the mechanisms of political accountability. As governors like New York’s Andrew Cuomo and Ohio’s Mike DeWine make profoundly important and difficult decisions of public health and economic stability, the press and other institutions need to highlight the real allocations of power and responsibility among national and state officials, in order to strengthen constitutional lines of public accountability. Governor Cuomo’s own daily press conferences have become particularly important, in that they not only provide updates from the hardest-hit state but they also provide daily reminders that the president is not the only elected official responsible for leading government responses to COVID-19. It is unfortunate that several other governors, of both parties, are not receiving substantial national media coverage.
The national press focuses on President Trump’s daily announcements for several reasons: because of the now years-long media obsession with his statements; because the president’s singular status (again, Hamilton’s “unity”) makes him the unique focus of national public attention in times of crisis; and because reporters are keen to hold him accountable—confront him, even—over his statements. But so disproportionately amplifying Trump’s words and actions instead of the governors’ has has the precise opposite effect of undermining the proper constitutional mechanisms of political accountability: By constantly confronting the president on matters over which he does not actually have power and responsibility, reporters reinforce the message that he is in charge of those things. If the White House press corps were to simply refuse to engage him on those issues, and instead focus overwhelmingly on the performance of the CDC and the FDA, and on matters actually within the president’s constitutional responsibilities, they would both hold him accountable and provide a civics lesson for the public that will someday vote on both the president and the governors.
As with a re-emergence of Congress, recalibrating the public’s understanding of the president’s and governors’ respective powers would ideally help to improve the president’s own steady administration of the laws. To the extent that the press ceases to focus on the president’s pronouncements on matters not actually within his control, perhaps the president will seek to advance his political fortunes through his execution of the powers and responsibilities that actually have been assigned to him by the Constitution and Congress. At least, one can hope as much. But at the very least, such disproportionate focus on the president makes a bad situation worse.
The White House Must Not Remain the Central Source of Expert Information
When crisis erupts, the federal government’s executive branch is uniquely well suited to gather and disseminate information to the public, to Congress, and to state and local governments. In the modern administrative state, the president can find sometimes unrivaled expertise in his White House and agencies. And the agencies can often collect and digest the relevant factual information more quickly and effectively than other institutions.
This is good, because the Constitution’s reliance on the president in times of crisis necessarily requires the president to have swift and often secret access to expertise and information. And the president, in turn, can use his singular place on the national stage to bring relevant information to the public. We see that, quite literally, in his near-daily presentation of Drs. Fauci and Birx in the White House briefing room. (Although, as Dr. Fauci himself suggests, it seems frivolous to force him and Dr. Birx to stand on stage for hours every day, and to prep for those briefings, instead letting them devote their scarce time and energy to more productive pursuits.)
But while this dual role of advising both the president and the public is good and necessary in a crisis’s initial stages, it becomes untenable as time passes. The president’s control over the experts within his administration tends to shape the information that those experts give to the public. It also tends to shape the public’s own perception of the information they are being given.
This, too, has been evidenced by the recent debates surrounding the projected death tolls announced in the daily White House press briefings: outside experts questioned both the substance of those projections and the process that gave rise to them, while the president’s sudden use of those projections as a very generous benchmark spurred politicos to ask if the projections were conjured just for the sake of political goalpost-moving.
Furthermore, the public’s continued reliance on the president’s own advisers as the primary source for authoritative information inevitably draws attention to possible disagreements between his advisers’ opinions and his own statements and actions. This, too, has been exemplified in the COVID-19 crisis, as waves of news coverage amplify apparent disagreements between President Trump and Dr. Fauci. This dynamic has the precise opposite effect that the press seems to intend: Though seeking to elevate and amplify Dr. Fauci’s expertise, such press coverage complicates his own relationship with the president and thus threatens his ability to help shape the Trump administration’s actions. Dr. Fauci himself has expressed chagrin over “this issue of trying to separate the two of us.”
When the nation relies so heavily on the president’s advisers for public information, it sets at odds two fundamentally incompatible constitutional needs: the president’s need to lead a team that he trusts to advise him candidly behind closed doors and support him in public; and the public’s need for accurate, trustworthy, expert information. Again, this is not a problem exclusive to this administration: President Trump’s particular qualities of character might exacerbate the problem, but this is a problem inherent in the conflict between the presidency’s needs and the public’s.
So while the public will naturally rely on the president’s experts in a crisis’s early days, such reliance becomes untenable over time. And in the COVID-19 crisis, this situation long ago crossed the point of sustainability. The nation’s informational center of gravity cannot remain in the White House briefing room. Instead, other experts must take the lead on matters of public health.
As with the proper allocation of public accountability among governors and the president, this is a matter in which the press must take some responsibility, by de-emphasizing the public role of the president’s advisers and re-emphasizing the public role of knowledgeable experts outside of government. Former FDA Commissioner Scott Gottlieb, my colleague at the American Enterprise Institute, exemplifies what outside experts can contribute to the public’s understanding of both the virus and the proper government responses to it; the public deserves to hear from more voices like his performing the informational role that Dr. Fauci is constantly being called upon to perform.
At the very least, the press should rely less on the president’s advisers to cast doubt upon the president. Instead of making Dr. Fauci’s already-difficult job impossible, the press should rely on other experts to challenge or confirm the president’s statements.
But Congress, too, can and should play a central role in the gathering and dissemination of expert opinion. As Yuval Levin and I urged in our aforementioned article, Congress has a national stage of its own, and House and Senate committees can invite experts to testify at hearings that will inform not just Congress, but also the governors, the public at large, and the Trump administration itself.
Americans are fortunate to have a Constitution that enables the president to react quickly to sudden crises. But it comes with a responsibility to recognize when the initial crisis becomes a longer-term challenge, calling not for presidential reaction but constitutional administration—and to reconstitute the institutions of governance accordingly.