The CHINA Coronavirus Pandemic Crises demand the (completely constitutional) use of major presidential power
March 19, 2020
We are in the throes of a once-a-generation emergency. As a novel coronavirus smacks our economy, upends our way of life and threatens to cripple health care, Americans expect a bold response from our government. And rightly so: Government exists, foremost, to secure the public good, and there’s nothing like a pandemic to remind us of this duty.
President Trump has asserted a vast federal power to address supply shortages, help the financially vulnerable and see us through this. State and local governments, meanwhile, have restricted public gatherings to prevent the virus’ spread. Right on.
Predictably, a small but vocal and influential minority of anti-government types are accusing the president of unlawfully seizing power and claiming that bar closures are tyrannical. All hogwash. Let’s break it down.
On Wednesday, Trump invoked the Defense Production Act, an obscure Korean War-era law that allowed then-President Harry Truman to mobilize privately owned domestic manufacturing capacity for the war effort. Now, the act allows Trump to alleviate medical-supply shortages. A Wednesday White House executive order states that Trump will use the act to procure “health and medical resources needed to respond to the spread of COVID-19,” including masks and ventilators.
It’d take a hard heart to respond to such an anodyne measure with howls of “tyranny.” Trump’s action follows authority delegated by Congress. Truman may have lost the steel-seizure-case of 1952, but as the great Justice Robert Jackson noted in his now-canonical concurrence, the president’s authority is at its “maximum” when lawmakers have already authorized an action.
Trump’s action isn’t merely legal — it’s just. Americans have always looked to the president in times of desperation. FDR’s “fireside chats” provided comfort to many at the nadir of the Great Depression. No New Yorker who was alive at the time will ever forget George W. Bush’s bullhorn speech from the Ground Zero rubble. We look to our leaders to, well, lead.
Trump’s use of a wartime law to mitigate public-health concerns amid an outbreak accords with this tradition of presidential leadership. And it is perfectly consonant with pursuing “the common good of the society,” which James Madison told us in Federalist 57 is the “aim of every political constitution.”
Trump also announced this week that the Federal Housing Administration will suspend mortgage foreclosures and evictions until the end of April. Plus, the Federal Housing Finance Agency, which regulates Fannie Mae and Freddie Mac, is suspending foreclosures and evictions for single-family mortgages for at least 60 days.
There is direct precedent for this, as presidents in the past have instituted similar forbearance measures after natural disasters. Trump is yet again on sound legal footing. His common-sense actions are just and proper, the minimum a decent political community can do right now to allay suffering borrowers.
Less officially, Trump has issued strong rhetorical guidance to state and local officials to promote “social distancing” and shutter gatherings of 10 or more people. And we hear the refrain from some quarters that state or local government still shouldn’t be able to close businesses.
America’s Founders would have scoffed at this prioritization of the profit motive over the common good in a time of grave crisis. Our constitutional framework is perhaps best summarized by Madison in Federalist 45: The “powers delegated by the proposed Constitution to the federal government are few and defined,” while those “which are to remain in the state governments are numerous and indefinite.”
State governments and municipalities have wide “police power” to regulate the health, morals and public safety of their citizens.
That police power means nothing if it doesn’t encompass sweeping measures to ward off a novel pestilence wreaking havoc upon a populace. Nineteenth-century Massachusetts, the cradle of the American Revolution, expressly instructed its townships to “use all possible care to prevent the spreading” of such an “infection” in order to protect the commonwealth’s “common safety.”
If the social-compact theory behind America’s Founding means anything, it means the state can compel millennials to forgo two weeks of Brooklyn debauchery to prevent granny from catching a lethal disease.
Trite though it may sound, the reality has never been starker: We are all in this together. It is past time that we ditch Ayn Randian dogmatism that has no roots in the Founding and embrace the ties that bind our destinies.
Josh Hammer is a syndicated columnist and of counsel at First Liberty Institute. Twitter: @Josh_Hammer
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