Americans who are only beginning to comprehend the scope and severity of the coronavirus suddenly find themselves on the horns of a civil liberties nightmare: While it is clear that the federal government has failed, for weeks, in ways great and small, to properly prepare for and respond to the global pandemic, it is equally clear that sporadic and decentralized measures from the states and local governments will absolutely not be adequate to contain and control the spread. As Cornell Law School professor Michael Dorf noted on Sunday:
Recent measures by localities, states, and Congress indicate a new urgency, but they will not suffice to prevent the crisis when severe cases overwhelm even the best-prepared hospitals and the most selfless health care workers. That tragic scenario is already unfolding in the Seattle area and will soon recur everywhere. To mitigate the death toll of the coronavirus, we need to lock down the country—now.
The problem, of course, is that the leaders we are now imploring to take decisive and terrifyingly broad federal action are some of the selfsame people who continue to do everything wrong. This is also the administration most apt to abuse broad emergency powers in ways that will prove xenophobic, nativist, grifty, and self-interested. Americans who are horrified at the frightening possibilities—laid out in a chillingly prescient argument last year by Elizabeth Goitein—of a president willing to seize emergency powers in a make-believe border crisis now must contend with the reality of the fact that we may soon be begging the federal government to seize unbelievably broad powers in order to efficiently deal with the crisis.
There is little reason to believe that dramatic state and local action, as we are seeing in New York, Washington, Ohio, and California, will suffice to protect most Americans. Other states defiantly do very little. The result is a patchwork quilt of responses that replicates the Trump administration’s original erroneous posture toward the virus: too little, too local, too late. As Jonathan Chait observed on Sunday, voluntary social distancing alone is not working either: “A new NBC poll finds only 47 percent of Americans plan to avoid large gatherings, and just 36 percent say they will reschedule travel. The latter number may be misleading, as not everybody has travel plans to begin with. But social media has confirmed a broad picture of a public that has greeted the coming crisis with something close to indifference. Bars remain packed.” Juliette Kayyem, who worked as President Barack Obama’s assistant secretary for intergovernmental affairs at the Department of Homeland Security, warned me in an email Monday that, “For those who may have wondered whether the articles of confederation were perhaps the better model, we are about to find out whether the states can act unified without federal guidance.”
This seems to be the federal government’s plan. The president on Monday told governors to try to find their own respirators and ventilators. The Republican Party continues to block wide-scale federal measures, in some cases for laughably partisan ends. The result is, as Dorf posits, that the United States is moment by moment losing the opportunity to respond decisively and holistically: “To mitigate the death toll of the coronavirus, we need to lock down the country—now,” he writes. Lockdown has worked in China, and while it is too early to know its impact in Italy, all experts agree that it should help “flatten the curve” and thus save many thousands of lives.” An editorial in the British medical journal the Lancet urges that “China’s vigorous public health measures” (quarantines and travel restrictions for millions of people) are worth considering, even under systems without China’s broad “command and control.”
There are constitutional restrictions that make such “command and control” efforts difficult, but not insurmountable, even in an American-style constitutional democracy. Dorf and many other legal thinkers are working through the constitutional questions about the scope of federal power to swiftly lock down the nation, impose quarantines, and suspend habeas corpus and other civil liberties, in order to respond in a way that is proportionate and commensurate to the magnitude of the threat. Dorf would invoke the suspension clause to do away with habeas corpus. In Vox, professor Lindsay Wiley of Washington College of Law opined that “as a matter of constitutional law, the courts would typically require government officials to try voluntary measures first, as a way of proving that mandatory measures are actually necessary. Furthermore, any mandated measures would have to be narrowly tailored and backed by evidence. … To pass constitutional muster, an order not just urging but requiring all people within a particular area to stay home would have to be justified by strong evidence that it was absolutely necessary and that other, less restrictive measures would be inadequate to slow the spread of disease.” In Reason, Jacob Sullum, quoting a 2018 SMU Law Review article by Brown University professors Michael Ulrich and Wendy Mariner, probes whether mandatory quarantine orders can be analogized to the rules surrounding involuntary psychiatric treatment, thus requiring “appropriate procedural due process.” Those safeguards would include, per Ulrich and Mariner, among other things, the right to counsel; written notice of the grounds for commitment; notice of the hearing and opportunity for discovery; and a fair hearing, under a “clear and convincing evidence” standard of proof. It’s still doubtful that a wide mandatory quarantine could be constitutional under current law, although as Wiley told Vox, “a mandatory geographic quarantine” would “probably be unconstitutional, although the issue has not been directly addressed in the courts.” Ian Millhiser surveys the constitutional landscape, also in Vox, and arrives at a similar conclusion: The patchwork of state laws governing things like mandatory quarantines makes a massive federal quarantine action of dubious constitutional validity, although deference to the courts in a massive crisis may also be unlikely. Everyone seems to agree that the questions would largely be novel.
But there’s a question lurking under these academic debates. Do we really trust Donald Trump with capacious emergency power? Only recently, liberals were paralyzed with fears that Trump could grab powers he is not given by statute to do terrible things, including refusal to leave office. In recent days, civil liberties experts have fretted that the president might use emergency powers to cancel the upcoming federal elections (he cannot—only Congress can set the “times, places and manner” of federal elections). They have worried that he might use the pandemic as a reason to deploy the military in ways that restrict civil liberties. (New York Gov. Andrew Cuomo urged the president to mobilize the military on Sunday.) People are also passing around panicky texts about imminent national quarantines (a hoax). But experts on public health are less worried about broad deployment of federal power to impose quarantines or stop elections than they are about what seems a federal abdication of far simpler authority to do basic, lawful things to stave off what is coming.
In fact, most civil liberties experts note that the emergency declaration Trump invoked last week was perfectly appropriate in that it largely released funds appropriate to fight the pandemic. Elizabeth Goitein told the New York Times that “In contrast to the situation at the border wall, which was in no way an emergency and the president’s declaration went against Congress’s will, this is a situation where we face a true emergency and members of Congress have actually been encouraging the president to take this action.” In other words, like Dorf, most pandemic experts want to see more federal action and not less. The states and private business that have tried to work around a recalcitrant and disinterested president do not have the resources to get the job done. Recall: That’s the whole point of the federal government, which has many tools and vast resources at its disposal to coordinate a centralized response without threatening civil liberties. And if you believe in a strong federal government, you want it, even this one, to act quickly and decisively. Ron Klain, who served as Ebola czar to Obama in 2014, told me just that in an email Monday morning, in response to a query about a federal power grab: “The problem is that the administration is not using the powers that it has. The President declared an emergency last week, but where is FEMA building tent hospitals in major cities? Why aren’t PPEs going to hospitals out of national stockpiles? Why can’t the most powerful nation on earth make hand sanitizer and toilet paper?” As Andrew Cuomo urged this weekend, tests need to be made immediately available and the Army Corps of Engineers should be building field hospitals.
Moreover, the American public, deeply divided in its mistrust of the media, the government, and the truth, needs to be united around a coherent message about the seriousness of what is upon us, and what steps need be taken, regardless of who their governor is. If blue America is practicing social distancing while red America is defiantly lining up to get into bars, a theoretical states’ rights problem is about to become an alternative facts problem. And for their part, Democrats who have become so accustomed to abuses of power from this administration may need to stop equating any centralized response with lawless authoritarianism. In short, even if you believe that Trump, Mike Pence, and Jared Kushner shouldn’t be trusted with national emergency powers in a national emergency, it’s clear that the American health care system is catastrophically ill-suited to handle the pandemic roaring down upon on us, without centralized, possibly even constitutionally unprecedented, federal control and direction. If that doesn’t make you feel better, it shouldn’t. It’s frankly terrifying. But it’s also a pretty good marker of how dire this moment truly is.
For more on civil liberties during the coronavirus pandemic, listen to the latest episode of Amicus.