Monday, March 30, 2020

Fighting COVID-19 Isn't Trump's Job

John Yoo, "Pandemic Federalism"
Large parts of the nation’s response can be undertaken only by the states.

As the nation enters its second month of the coronavirus pandemic, criticism of Trump’s lackluster response has reached a crescendo. In late February, House speaker Nancy Pelosi declared that the White House’s response was “opaque and often chaotic” and accused the administration of “playing politics” while “lives were at stake.” After Trump’s widely panned address to the nation last week, in which the president misdescribed his own policies, the White House and congressional leadership are now seeking to correct course with a $1 trillion stimulus bill.

But under our federal system, Washington, D.C., has only limited powers to respond to a pandemic. The Constitution grants the national government a limited set of enumerated powers. Stopping the spread of disease is not among them. Instead, Congress must resort for a cure to its powers to “regulate Commerce with foreign Nations, and among the several states” and to tax and spend for “the common Defense and general Welfare.” Nor does the president possess any explicit power to protect health and safety. He instead must invoke his power to “take Care that the Laws be faithfully executed” and to wield “the executive power” of the United States.

Under these powers, the federal government can play only a limited role in fighting the pandemic. It can bar those who might have the coronavirus from entering the United States or traveling across interstate borders. It can provide critical supplies, such as medical equipment, intensive-care units, and drugs. It can transfer money to states and cities or private entities, such as hospitals, to help pay for the costs. It can help disseminate information on the disease, fund research on a vaccine and cure, and coordinate the efforts of public and private institutions with guidance for best practices. While Washington, D.C., controls the national borders and regulates interstate traffic, such as the airlines and highways, that power can do little now that the coronavirus has reached every state.

Instead, under our constitutional system, the primary authority to fight the pandemic rests in the hands of our state governors, such as Gavin Newsom here in California and Andrew Cuomo in New York. States possess the “police power,” which gives them the authority to regulate virtually everything within their territory. As the Supreme Court has long recognized, the most compelling use of state power is to protect public health and safety. Under their police power, only the states can impose quarantines throughout an entire population, close institutions and businesses, and limit movement and travel. Only the states can impose the draconian shelter-in-place order that has brought the Bay Area’s economic and social activity to a complete halt.

Some might incorrectly analogize the pandemic to a natural disaster, such as Hurricane Katrina in 2005 or Hurricane Sandy in 2012, when presidents have sent in military troops to assist in mitigation and relief. But an epidemic is a different kind of challenge than a natural disaster. A hurricane or earthquake is fixed in time and space. Under federal laws, the president can flood the zone with personnel and resources, even troops, at the request of a state governor. But the government can no longer limit the pandemic to a fixed geographic location where a surge of federal resources can end the crisis. No federal agency has enough manpower to enforce a quarantine within a large state such as California or New York, not to mention the nation as a whole. The quickly spreading nature of the disease requires the full powers that only a state government, with all of its personnel and resources, can bring to bear on an entire population. The New York City Police Department, for example, has more sworn officers than the FBI’s entire workforce.

Our Constitution’s division of the authority may lead to a slow initial response, as Washington and the states jostle for authority or wait for the other to act. But that is by design. The Founders recognized that the states would exercise primary authority over most aspects of daily life, while the federal government would protect national security, conduct foreign relations, and handle truly national problems. The states have better information, can shape policies to local conditions, and can experiment on best practices. Some states may initially suffer while others succeed. But state diversity also introduces a resiliency in our system that makes it less likely that the nation will suffer from a failure by any single leader, such as the president.

Ironically, the pandemic therefore places Trump’s political future in the hands of his most dire rivals: Newsom, Cuomo, and the governors of other populous blue states. The president’s reelection this November depends on the nation’s success in responding to the pandemic. The very purpose of the presidency is to act quickly and decisively in the face of crisis. As Alexander Hamilton wrote in Federalist 70, “energy in the Executive is a leading character in the definition of good government.” A successful executive, he observed, would display “decision, activity, secrecy, and dispatch.” Our greatest presidents, such as George Washington, Abraham Lincoln, and Franklin D. Roosevelt, pressed their constitutional power to the limits to confront crisis, emergencies, and war when others could not or would not act.

But in this case, Trump tarried while the pandemic began its deadly spread. The real saviors of the nation now will be different executives, those of the states. To the extent that their drastic responses force the pandemic to recede, they will end up saving Trump from his initial lack of executive leadership. It will be their success, or lack thereof, that will determine whether the country feels secure enough to reelect Trump or replace him with new leadership.

19 comments:

Dervish Sanders said...
This comment has been removed by the author.
Dervish Sanders said...

Dotard's motto is "the buck DOESN'T stop here". He is the ULTIMATE buck passer. He TAKES credit even when he doesn't deserve any and fobs off responsibility for EVERY bad thing that happens ON HIS WATCH. And (as a brainwashed cultist who believes his leader can do no wrong) YOU work hard in assisting in the credit-taking and blame-shifting.

A REAL leader takes responsibility! Dotard is not a real leader. He is an incompetent fool and we're f*cked because of his administration's bumbling of the response. The recession and excess deaths (beyond what they would have been had a COMPETENT leader been in charge) are his fault. We must ditch him ASAP. If this boob is left in charge there WILL be future additional dire consequences.

-FJ the Dangerous and Extreme MAGA Jew said...

He TAKES credit even when he doesn't deserve any and fobs off responsibility for EVERY bad thing that happens ON HIS WATCH.

Sounds like the very definition of EVERY politician who ever was...

As for your blame-Trump BS, it sounds like something originating from a brainwashed cultist who believes that HIS leaders can do no wrong...

Dervish Sanders said...

Magaturd cultist: Trump is the greatest president since Washington. This is the greatest economy in history (prior to the Coronavirus). Trump was a great businessman (despite losing more money than any taxpayer in US history). Trump is a "very stable genius" (despite clearly being a moron).

You're the cultist, not me.

Also, haven't magaturds been quite insistent that Dotard is our (the majority of us who voted for HRC) president too? Now you ADMIT that he isn't. Blaming Dotard is factual. But OF COURSE someone who doesn't believe in facts would say that is BS.

Joe Conservative said...

Lots of fact loving people would call your BS.

Dervish Sanders said...

You obviously hate facts. btw, "alternative facts" aren't facts. They're lies.

-FJ the Dangerous and Extreme MAGA Jew said...

Tell that to Marbury and Madison.

Dervish Sanders said...

They're dead.

Joe Conservative said...

So are "facts"

Dervish Sanders said...

I wish "facts" (in quotes) were dead. Unfortunately "facts" (alternatives ones, aka lies) are more popular than ever with the anti-intellectual stupids.

Dervish Sanders said...

btw, if you look at what Dotard's priorities are by observing what he does, he obviously thinks his "job" is playing golf, "executive time" aka watching teevee, and holding self-aggrandizing rallies. #worstpresidentever.

-FJ the Dangerous and Extreme MAGA Jew said...

He holds Covid press conferences 2-3 times daily to give people the updated facts, s opposed to repating the dead ones that Democrats dwell upon.

Dervish Sanders said...

Journalists are skipping Trump's daily coronavirus press briefings, saying they don't have enough news value. (excerpt) TV networks have also cut away from the briefings, or chosen not to broadcast them altogether, as the president continues to use the sessions to spread misinformation and troll the press. ... instead of delivering key information and sober assessments of the situation to the American public, Trump has frequently resorted to tactics more familiar from his raucous campaign rallies: boasting of his accomplishments, floating misinformation, attacking the press, and taunting Democrats. [end excerpt]

#worstpresidentever

-FJ the Dangerous and Extreme MAGA Jew said...

Gee, Fox doesn't skip them.. But progressives no longer can listen to truth. It destroys their alternate fantaasy reaality...

Dervish Sanders said...

Dotard's "briefings" are a part of your alternate fantasy reality. To you misinformation is truth. OAN (I'm guessing) covers them as well.

-FJ the Dangerous and Extreme MAGA Jew said...

OAN is. the best! Way better than Faux!

Dervish Sanders said...

Because it's worse than Fox (less facts, more Russian propaganda, more Dotard boot-licking) is why you think it's "the best".

-FJ the Dangerous and Extreme MAGA Jew said...

Russian propaganda? Rachel Madcow is going to be $10 million poorer in a few months because of libelous comments like that.

Dervish Sanders said...

The case will be thrown out. Rachel Maddow told the truth about OAN. Filers of frivolous/nuisance lawsuits get nothing.

OAN will pay Maddow/MSNBC's court costs because "California is one of 29 states with an Anti-SLAPP law, which are put in place to discourage people from filing meritless libel or slander suits by making the plaintiff pay the attorney's fees if they lose the case".

btw, "San Diego Hearing in Rachel Maddow Slander Case Delayed Until May 19". I mention this because the previous linked article says the case was to be heard by a judge in December of last year.