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It is almost axiomatic that authoritarians are going to authoritarian if a pandemic presents them with opportunities to do so. All around the world, strongmen are seizing new authority under the guise of an exigent national emergency. As Anne Applebaum detailed in the Atlantic last week, it is likely that President Donald Trump—who, in immigration and national security contexts, has not hesitated to use pretextual emergencies to arrogate more power to himself—will surely begin to use the fact of an international health crisis to gobble up extralegal and extra-constitutional authority to do all sorts of things. Indeed, in some sense the mystery is why he hasn’t done so already.
To be sure, we’ve already seen some recreational gobbling, with opportunistic new policies around the borders, asylum claims, and other long-standing policy preferences like international trade. And last week we heard reports that the Department of Justice had asked Congress for emergency powers for judges to detain Americans without trial, though the request was met with bipartisan horror on Capitol Hill. But while we haven’t yet heard much about mass electronic surveillance or shutting down elections and seizing new dictatorial powers à la Viktor Orbán in Hungary, it’s a mistake to think this administration isn’t already engaging in its own form of smash-’n’-grab under the cover of a crisis. It’s happening. It’s just happening to the regulatory apparatus, where nobody’s paying much attention.
It’s hard, for instance, to find any other explanation for the announcement, last Thursday, that the EPA would be relaxing environmental rules for power plants and factories, which will now be on the honor system to report their own violations of clean air and water rules. Which raises questions about why immigrants and asylum-seekers cannot similarly be advised to just “ ‘act responsibly’ if they cannot currently comply with rules,” but, well, there it is.
Of course, it’s not just environmental protections that are to be consigned to the dustbin. The stimulus bill passed contains several provisions reducing regulations on the banking sector—deregulatory actions that have been “long sought” by finance industry lobbyists. But according to a Washington Post report, numerous proposals to help banking consumers during the crisis didn’t make the cut. That included “a proposal to scrap bank overdraft fees; another to impose a 36 percent cap on consumer interest rates; and one to offer free bank accounts, accessible at a bank or the Post Office.” None of those, it seemed, made it in, even though we could find room for a provision delaying accounting rules that would require banks to more accurately report their liabilities.
It seems that the coronavirus also necessitated that the Labor Department suspend affirmative action rules for a time. On Monday, HHS admitted it was using the pandemic as an excuse to hastily deport immigrant children apprehended alone at the southern border as opposed to housing them in shelters to await processing. And don’t even get us started on Republican governors in Ohio, Texas, and Mississippi who are using the coronavirus emergency to attempt to shutter abortion clinics, in some cases with threats of jail time for offering nonessential services during a pandemic. (So far, abortion providers in these states have continued offering their essential medical care.)
Let’s be clear: Emergencies sometimes require that we alter or suspend some of the laws that apply in normal times. When we’re trying to address a crisis situation, we may need to act so quickly that ordinary restraints will do more harm than good. But we need to be on guard against government officials who opportunistically use a real emergency to accomplish broader goals they have long sought but been unable to achieve through the checks and balances of the normal political process. As Justice Robert Jackson wrote in his concurring opinion in the Youngstown case—perhaps the greatest single opinion in the history of American constitutional law—emergencies “afford a ready pretext for usurpation.” We must be vigilant to avoid such usurpation. Especially because, as Applebaum points out, patriotic (and frightened) citizens are happy to hand over emergency power in exigent times because it makes them feel safer.
We should be especially worried when actions taken by the government lack any clear connection to the emergency. In responding to a pandemic, the No. 1 goal is to protect public health. Allowing factories to pollute better would disserve rather than serve that goal. So would keeping women from accessing urgent medical care. If states genuinely believe that the presence of women in abortion clinics will spread the virus, they should loosen their restrictions on medication abortion. Eighteen states—including Texas and Mississippi—require in-person visits for such abortions, even though those visits are not medically necessary. Ohio’s Legislature is currently considering a bill to make that state the 19th, moving in precisely the wrong direction. The best way to protect against women spreading the virus is to eliminate those unnecessary restrictions, not to impose further limitations on time-sensitive reproductive health care.
We’ve been here before. After 9/11, Congress rushed to adopt the Patriot Act—a bill prompted by a national emergency, but one that was effectively a wish list of every surveillance power the government had ever wanted, without a real nexus between the novel powers sought and increased safety. It was passed before most elected representatives read the bill. Among other troubling provisions, the statute authorized what the ACLU has described as “unchecked government power to rifle through individuals’ financial records, medical histories, Internet usage, bookstore purchases, library usage, travel patterns, or any other activity that leaves a record.” The government relied on that power to support a nationwide program of bulk collection of Americans’ phone records until Congress acted to constrain it following the Snowden revelations. And in the wake of Hurricane Katrina, school choice advocates took the opportunity to blow up New Orleans’ existing public school system and replace it with a network of charter schools—a long-sought goal that deprived the city’s parents of democratic control and did not help improve student outcomes. How that helped in the hurricane relief effort is still not clear, but we do know that 35 of the 72 charter schools in the city received failing or near-failing grades in Louisiana’s most recent school performance report.
It’s unclear who said it first, but President Barack Obama’s former chief of staff Rahm Emanuel has been widely quoted as declaring, “Never let a good crisis go to waste.” The Trump administration is following Emanuel’s advice—as the political right has done for years. Most of Trump’s efforts have only the most tenuous connection to the emergency. He’s just using the crisis to steal every long-sought right-wing policy win that’s not nailed down.
Incredibly, the coronavirus pandemic does highlight the need for policies that left-of-center activists have sought for years. The government can’t stop pandemics from happening, but it could have mitigated the effects of this one significantly. But our long history of disinvestment in government—and the Reagan-Thatcher move away from the idea of the government as doing for our community what we cannot individually do for ourselves—has left us hamstrung in responding. That is in fact a national emergency. Our hospitals are cracking under stress, and doctors will soon be forced to ration lifesaving care, because we have not made the public investments in our health care system necessary to address major outbreaks of disease. Further, because our nation does not provide universal health insurance, many people are likely to have developed medical conditions that make them especially susceptible to harm from the virus—and they could face potentially bankrupting bills from the treatment they may need should they contract it. Because our nation does not provide universal paid sick leave, untold numbers of people have been forced to go to work when they might be infected, thereby accelerating the spread of the virus. The list goes on.
For years, left-of-center activists have presented policy proposals that would address each of these issues. Yet as our government has adopted emergency responses to the coronavirus pandemic, it has not adopted those proposals, or any others that could achieve the long-standing priorities of liberals—priorities that might actually address problems caused or revealed by our current emergency. As usual, it looks like only one side is committed to never letting a good crisis go to waste.
For more on the impact of the coronavirus, listen to Amicus with Dahlia Lithwick.