Who's in Charge?
It’s easy to interpret the disorder of our COVID-19 response through the lens of unpreparedness or partisanship. But that misses the complex legal structure of emergency governance.
April 1, 2020
Apr 1, 2020
16 Min read time
It’s easy to interpret the disorder of our COVID-19 response through the lens of unpreparedness or partisanship. But that misses the complex legal structure of emergency governance.
As coronavirus cases continue to multiply throughout the United States, a wide range of solutions has emerged to try to measure the rate of infection and contain its damage.
For his part, President Trump has veered between science denialism and war rhetoric, glibly comparing the coronavirus to the flu or traffic accidents, or cheerily promoting unproven cures. He closed the borders to some hotspots at the end of January, but otherwise waited until March 13 to declare a national emergency. Now he embraces models predicting millions of deaths in the absence of interventions but hesitates to use the full powers of his office to force companies to produce critical medical supplies or more aggressively regulate affected industries.
By contrast, states that have been hit the hardest—New York and Washington—quickly moved from self-isolation and limited testing and care to more aggressive emergency actions. Many states and cities have followed suit. But some holdouts—such as Governor Tate Reeves, who declares “Mississippi’s never going to be China”—have defied the trend.
It’s easy to interpret these differences through the lens of bumbling unpreparedness or political partisanship, but that leaves out a crucial part of the story: the complex legal structure of U.S. emergency power and the clash of different guiding philosophies of emergency governance. It’s worth understanding these dynamics not just to see our vulnerabilities, but also to plan accordingly.
• • •
In terms of the law, individual cities and states enjoy vast police power to regulate the health, welfare, and morals of the community. In 1905 the U.S. Supreme Court upheld a mandatory smallpox vaccination law. Justice John Marshall Harlan, writing for the majority, found “a system of general vaccination was vital to the safety of all.” The “safety and health of the people of Massachusetts,” he pointed out, “are, in the first instance, for that Commonwealth to guard and protect. They are matters that do not ordinarily concern the National Government.” This state police power includes invoking emergency authority—so long as it’s consistent with the law and constitution of a state—to temporarily close down schools, government operations, and businesses, and, if necessary, impose curfews or other restrictions on mobility.
That’s exactly what the Supreme Court of Arizona said in 1919 when it affirmed the closing of local schools to slow the spread of the virulent Spanish flu which killed 675,000 Americans, though it pointed out that “the exigency is met and satisfied by the disappearance of the infectious or contagious disease.” Drawing on such precedent, the District of Columbia and other proactive jurisdictions have closed all “non-essential” businesses, while some like California and Maryland have gone further by issuing more expansive “shelter in place” orders.
Individual cities and states, unlike the federal government, enjoy vast police power to regulate the health, welfare, and morals of the community.
By contrast, the federal government lacks this general police power over matters of health—unfortunately, this is a feature of our eighteenth-century Constitution’s design rather than a bug. Some of the oldest cases handed down by the Supreme Court distinguish between the textually circumscribed powers of Congress, which do not encompass the equivalent of the state’s police power, and a state’s own broad authority to stop the spread of disease through quarantines, inspections, and other related measures. And in National Federation of Independent Business v. Sebelius, the 2012 decision upholding Obamacare’s individual mandate as a legitimate tax, the justices nevertheless reaffirmed the notion that Congress’s power over interstate commerce doesn’t extend to forcing people to buy health care insurance even if doing so helps broaden coverage and keeps costs down for the country overall.
By the same token, under the terms of our Constitution, a president generally cannot take emergency action unless a federal law explicitly permits it. Most of that power is channeled through agencies whose mandates are set by Congress. Certain federal laws allow a president to waive obligations imposed on states through Medicaid and Medicare. On January 31, for example, President Trump announced a public health emergency, requiring any citizens that have traveled from China to remain in fourteen-day quarantine; he also imposed travel restrictions on foreign nationals from China—which he later extended to cover other coronavirus hotspots. In declaring a national emergency on March 13, Trump invoked the National Emergencies Act, allowing the Department of Health and Human Services to relieve hospitals from having to comply with a number of rules about hospital beds and maximum length of stays in a hospital.
Of course, these comparative differences in constitutional authority don’t leave a president powerless—far from it. In fact, there’s so much more President Trump could do to mobilize federal resources. He could fully activate the National Guard to help build temporary hospitals, rather than simply agreeing to fund certain states’ National Guard activity. He could act temporarily suspend exports of critical medical equipment or fix the maximum price of masks and respirators, as Taiwan has done as part of its coronavirus response and as FDR did in confronting cratering industries when he took office. There is even a federal law, grounded in Congress’s power to regulate interstate commerce, that allows the quarantining of individuals “reasonably believed to be infected with a communicable disease” who try to cross state lines. Other laws, though, such as the Posse Comitatus Act and the Insurrection Act, restrict the president’s ability to deploy the armed forces for domestic purposes. Importantly, the principle of federalism prohibits a president from commandeering the resources of a state in the pursuit of federal policy. A president can’t just order that businesses and schools reopen.
Even the theory of unitary executive, which is so prevalent today in conservative quarters, is mostly about a president’s prerogative to control executive departments, resist oversight by legislators and judges, or protect against the next attack by an external threat. At least so far, this theory has not encompassed the power of a president to take over state functions and private industry unilaterally.
To be sure, no one has unlimited authority. Every emergency order would have to be rational in light of some demonstrated need. But that traditionally forgiving threshold isn’t hard to meet given the circumstances. Novel features of the coronavirus weigh in favor of upholding such laws—certainly during this period where we lack a vaccine and much of what makes the virus so contagious, as well as why we have varying mortality rates, remains unknown. Emergencies don’t extinguish constitutional rights, but respect for individual liberties have to be adapted to the urgent needs of the community.
There’s so much more President Trump could do to mobilize federal resources. He could fully activate the National Guard. He could act temporarily suspend exports of critical medical equipment.
For now, most rules have been drawn broadly so as to apply to all residents, thus avoiding concerns about unequal treatment. But some jurisdictions have started to inch toward more targeted approaches—such as quarantining some people based on place of origin or where they recently came from. What about an emergency order like that ordered by Alaska Governor Mike Dunleavy, who signed an Emergency Declaration March 23, 2020, requiring all people arriving from outside of the state to self-quarantine for fourteen days? The only exception is for individuals who work in “critical infrastructure industries.” Failure to comply with the order subjects them to a potential fine of $25,000 and a year in prison.
To the extent it may be rational to fear people coming from countries or states ravaged by the virus, or traveling from inadequately tested areas such as Mississippi or Louisiana, temporary origin-based solutions may be justified. We have revised some of our early understandings about COVID-19, and it’s now apparent that many of the people responsible for spreading it have been asymptomatic during transmission. Under these circumstances, using place of origin as a proxy for health concerns may be warranted.
But some people who are frustrated by the sudden contraction of the economy have become more vocal, insisting that it’s time to adopt even more selective solutions that would impose sharper restrictions on hard-hit populations while letting everyone else get back to work.
Such targeted solutions seem more liberty enhancing precisely because they force a smaller number of people to bear all or most of the burdens of an emergency. But we need to ask both whether a targeted approach would be effective in limiting the spread of the virus, and also whether it is compatible with our values of dignity, equality, and fairness. There’s a tendency during times of crisis to pass on the social pain and economic pain caused by emergency policies to unpopular groups, such as foreigners, the sick or disabled, or racial minorities. That unfortunate majoritarian impulse to mistreat those least able to defend themselves—perhaps even more acute among Americans used to a comfortable standard of living—must be resisted as much as possible. A presumption of shared suffering does that, while also fostering an ethic of citizenship as a collective enterprise.
• • •
Emergency policies aren’t just shaped by legal concepts, though. They are also expressions of distinctive philosophies of governance. The actual policies generated through legal mechanisms and political bureaucracies can reflect technocratic, liberal, libertarian, or authoritarian elements—usually, more than one at the same time. Sometimes an ideological mishmash can be a recipe for disaster, but other times fact-driven eclecticism can be the right way to ensure that all legitimate viewpoints are brought to bear on a policy problem.
Early on, Trump’s hands-off approach seemed motivated principally by economic libertarianism, an appeal to minimal governmental interference with the economy, particularly when indicators like low unemployment and stock trading is bullish. Raising the alarm about an impending pandemic meant introducing instability into the stock market and risking disruptions in the behavior of consumers and investors. Minimal intervention was surely attractive because it posed no threat to Trump’s plutocratic priorities and was bolstered by the Wall Street–heavy advice he receives. The problem is that the hands-off approach didn’t work: limited border control solutions alone weren’t enough to slow the virus’s spread, or to stave off repeated stock market slides. Now more than 4,000 Americans and counting have died, and millions are out of work.
Only when the inevitable failure of minimal intervention became clear did Trump allow technocrats within his administration to exert more influence on decision-making. This seesaw between approaches helps us to see why Trump was slow to invoke the Defense Production Act, and why even though he finally did so, he used it as a bargaining chip rather than a formal order: he found the idea of government interference in the private sector intolerable. This stance certainly reduced the risk of litigation and entrenchment on the part of business leaders, but at the cost of losing precious days of preparation and intervention. The jury is still out whether there will be wider cooperation by the private sector and ultimately, sufficient resources will be delivered into the hands of doctors and nurses on the front lines.
Now, economic libertarians who prioritize business interests and individual autonomy are also deploying utilitarian methods to rein in technocratic governance. Think of law-and-economics guru Richard Epstein, who insists that the possible death toll will be too low to justify emergency restrictions on economic liberty and favors private forms of self-help, or Florida Governor Ron DeSantis, who resisted issuing statewide orders, most visibly when it would have inconvenienced Spring Break revelers. They urge solutions that might allow most of the country to escape emergency governance while crackdowns remain for coronavirus hotspots. If this approach finds traction, liberals and others who value non-economic forms of dignity and the social good will then have to speak up about how these half-hearted policies inflict damage on a broad array of social interests. Technocrats, for their part, will have to show that the infection rates will worsen if a return to normal governance takes place too soon.
The good news is that while the federal government struggles with how to exercise its emergency power, other actors have been able to step into the vacuum and act decisively. The downside is a degree of unnecessary competition between jurisdictions and more confusion for citizens uncertain about whose diagnosis of the problem is best and which solutions to heed.
One reason why it’s important to scrutinize crisis-inspired policies is that a few officials will be tempted to use coronavirus as a cover to do things that could otherwise not be done politically.
Even the most decisive executive officials, such as Governor Jay Inslee of Washington State and Governor Andrew Cuomo of New York, have been guided first and foremost by a technocratic approach—that is, a philosophy of solving public policy problems by deferring to rigorous scientific standards, fact-gathering, and empirical testing. Epidemiologists, working with policymakers, have proposed policies that reflect up-to-date knowledge of how the virus is structured and how it travels. This makes sense given that the virus recognizes no borders and, unchecked, could leave vast human and economic wreckage in its wake.
Governors and mayors have also mostly adopted a liberal approach to crafting policies, building into them expiration dates and the precise facilities or industries affected. Durational limits allow emergency orders to expire through inaction, but they also trigger reassessment. These orders are liberal in the sense that they are carefully worded, respect legal limits, and assume that every emergency has a natural end. Leaders have mostly proceeded gradually, by trying less restrictive measures first, and then tightening the measures or adding new ones as old ones have not proven sufficient. Although emergency orders are backed by the force of the law, for now the police have effectuated few arrests. In Florida a county sheriff arrested a minister of a mega-church who held two Sunday services with hundreds of people in violation of an emergency order, but released him on bail. He had also told his flock that the coronavirus “is blown totally way out of proportion.” Persuasion and dispersal orders make most sense for all but the most recalcitrant, however; mass arrests for violations would simply worsen conditions in jails and add to the misery.
But even incrementalist solutions can lead to an authoritarian place, and some commentators are already floating proposals for measures with potentially indefinite effect. Perhaps most alarming, the constitutional scholar Michael Dorf, who usually takes rights-respecting views, has exhorted, “Lock Us Down.” After proposing some sensible mobilization measures, he takes a jarring right turn, urging Congress to suspend the writ of habeas corpus during the pandemic. He makes no case for why the many ordinary legal tools at the government’s disposal—such as asking judges to delay litigation or offering a variety of arguments on the merits why a particular emergency measure is reasonable—aren’t enough to prevent interference with government responses to coronavirus. Dorf points out that the Framers expressly limited such a drastic measure to two circumstances, “Rebellion or Invasion,” and that a public health crisis doesn’t qualify. But he nevertheless encourages legislators to suspend the Great Writ, in effect creating an emergency exception to the Constitution.
One saving grace might be an expiration date, he says, but make no mistake: this is an extra-legal solution that could be justified only in terms of some emergency-based theory of popular constitutionalism that Dorf doesn’t fully flesh out. But it is also illiberal in the sense that it doesn’t recognize or provide ways to ensure existing legal limits. Dorf seems worried that rights-foundationalism will get in the way of ensuring the safety of the populace, but he knows full well that courts generally, and the U.S. Supreme Court in particular, have historically bent over backward to allow emergency policies to have their way.
One reason why it’s important to scrutinize crisis-inspired policies is that a few officials will be tempted to manufacture emergencies, using coronavirus as a cover to do things that could otherwise not be done politically. Getting rid of ways to test the legality of crisis-inspired policies will make this worse. When the goal is to impair the exercise of a crucial human or constitutional right, it is imperative that such emergency orders be closely examined. For instance, a handful of pro-life governors in Ohio and Texas have issued emergency orders restricting abortion to those that are necessary for the health or life of the mother; a number of governors and activists in other states have called for the closure of all abortion clinics as non-essential.
This is unfortunate and will have to be assessed against other regulations of medically available (and this case) constitutionally protected services. It’s one thing to have one’s right to speak or assemble temporarily put on hold; it’s quite another when temporary constraints on the exercise of a right will effectively extinguish that right. Losing the writ of habeas corpus, even for several months, would mean that anyone under detention in a local jail, state prison, immigration detention center, or other forms of federal custody would not be able to directly challenge the legality of that detention and make it harder to force a reckoning with our deeply held values.
The constantly shifting nature of a public health crisis suggests that over the long haul what’s most crucial are flexibility and close attention to outcomes. Our coronapolitics are better when they are deft, not dogmatic.
What about religious leaders who defy an emergency order by continuing to conduct services with large groups? In Louisiana one minister continues to hold religious meetings a thousand people strong, claiming that policies restricting the size of gatherings abridge his congregation’s right to worship. But states that draw lines between essential operations and non-essential ones aren’t targeting religious groups as such. That means the state isn’t trying to oppress a particular religious group. What’s more, an order that limits assemblies over a certain size is more reasonable than other kinds of potential restrictions on religious worship, such as those that take off the table certain rituals or practices. So long as these evenhanded orders are limited in duration, and leave open virtual methods of social interaction, they should be seen as reasonably effective ways of limiting the spread of COVID-19.
As these examples suggest, however, the legal issues that will arise during the coronavirus crisis can’t be solved by a purely technocratic approach. An empirical mindset is important to assess whether safety concerns can be addressed while a clinic stays open or a “shelter in place” remains justifiable. There are tradeoffs to be made from every intervention, just as there are costs if we do nothing at all. But there are also things at stake that are difficult to put a price on; we have to consider things that are incommensurate. That means we’ll also need a hearty dose of other, more value-laden approaches. The constantly shifting nature of a public health crisis suggests that over the long haul what’s most crucial are flexibility and close attention to outcomes. Our coronapolitics are better when they are deft, not dogmatic.
Emergency solutions—whether to slow the rate of infection or to ameliorate the economic damage—will almost certainly strike many as partial and impermanent. But it’s useful to remember that the harms from a pandemic are many, that harm reduction is paramount during crisis management, and that emergencies tend to lay bare a society’s structural weaknesses for all to see. Once a crisis is over, we can mobilize our painful memories of precarity into long-term solutions for the common good.
Correction Notice: An earlier version of this essay referred to King v. Burwell as the Supreme Court ruling that upheld Obamacare's individual mandate. It was National Federation of Independent Business v. Sebelius, not King v. Burwell.
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April 01, 2020
16 Min read time