As the novel coronavirus has spread across the U.S., the White House’s response has been to muzzle officials and scientists at the Centers for Disease Control and Prevention, insisting that government communications about coronavirus be vetted and potentially even censored. To justify the authoritarian-style power to suppress information, the White House is likely relying on decades-old legal opinions from the Office of Legal Counsel at the Department of Justice, where I once worked as an attorney. Those poorly reasoned opinions, in the hands of a president who has no regard for the truth, may be putting lives in danger.
The lawyers at OLC are responsible for defining the scope of presidential power for the executive branch. When the White House is anticipating a legally questionable action and wants a definitive statement about the scope of its powers, it will ask OLC for a legal opinion on the matter. These opinions—some are public, many are not—are then treated as precedential. They become the governing law of the executive branch.
One particularly relevant opinion comes from 1988. During the Reagan administration, as the deadly AIDS virus ravaged and terrified American communities, Congress instructed the director of the CDC to take decisive action. Congress told the director to send information about the AIDS virus to every household so that the American people could make decisions on the basis of facts, not fear. Recognizing that the Reagan White House’s response to the epidemic—dismissiveness that gave way to fearmongering—stemmed from a deadly cocktail of prejudice and politics, Congress forbade anyone outside of the CDC from interfering in the content of the mailing. The American people needed facts, not spin.
The White House balked and asked OLC whether the statute was unconstitutional. OLC assured the White House that denying the president final say over the dissemination of public health information was an “egregious” violation of the Constitution, the depths of which “cannot be overemphasized.” The opinion explained that the president has inherent power to “supervise” and “oversee the CDC’s determination of the content of” the AIDS mailers. (A subsequent opinion less subtly spells out that the power to “supervise” and “oversee … content” is the power to ensure that agency heads “revise” content according to the president’s wishes.) Essentially, OLC asserted, congressional instructions to an agency to use congressionally appropriated funds to share accurate information directly with the American people “is fundamentally inconsistent with our tripartite system of republican government.” Congress, OLC wrote, “has no more right” to prevent the president from exercising his right to “supervise” the CDC’s decisions about the AIDS mailer than “the President would have to preclude federal judges from reviewing draft opinions prepared by their clerks.”
OLC’s breathless rhetoric about the constitutional stakes was laughable. The death toll from AIDS was not.
Over 30 years later, a less deadly but still serious virus, the coronavirus, threatens a global pandemic. To manage the public health challenge, the government will need to disseminate accurate information to hospitals and the American people, no matter how politically inconvenient that information might be. Yet this specious and little-known OLC precedent seems to give the president a blank check to censor lifesaving information from the CDC and to spew misinformation in its place.
The legal argument for the censorship power—which OLC publicly doubled down on under President George W. Bush—goes like this: Because Article 2 of the Constitution vests “the executive power” in the president, the Constitution must implicitly grant the president plenary power to supervise the entire executive branch. And, OLC says, “because the Constitution vests this power in him alone, … any attempt by Congress to constrain the President’s authority to supervise and direct his subordinates … violates the Constitution.” The key judicial precedent on which this theory rests is a partially overturned 1926 Supreme Court opinion affirming the president’s power to fire a postmaster. OLC says that the power to fire is proof positive of the power to censor.
In other words, this censorship power cannot be found in the Constitution’s text. It likewise cannot be found in the Constitution’s tripartite structure, with a system of checks and balances that rejects the notion that the executive branch belongs to the president. In OLC’s view, Congress’ power to make law would seem to exclude the power to say much of anything about how the executive branch should function, notwithstanding Congress’ constitutionally granted power of the purse and centuries of judicial precedent and history.
The censorship power is also belied by Article 2 of the Constitution, on which OLC rests its argument. Article 2 not only vests the executive power in the president, but it also commands that the president “take care” to “faithfully” execute the laws. As the nation’s founding history makes clear and as the Supreme Court explained nearly 200 years ago, this faithful execution requirement forbids the president from “dispensing” with congressionally enacted laws—like the law empowering agency heads, not the president, to decide which measures, “in his judgment,” are “necessary to prevent the introduction, transmission, or spread of communicable diseases” and the law directing the White House to take steps to maximize the “quality, objectivity, utility, and integrity” of information disseminated by agencies. The president’s power to execute the law isn’t the power to break it.
The legal theory on which the president’s purported censorship power rests is thus wrong and dangerous. Its persistence—it appears to have been deployed to justify distorting and suppressing agency climate research for over 15 years, and this same legal theory could be used to distort the economic indicators that drive our economy—is more evidence that executive branch lawyers have distorted the powers of the presidency beyond reasonable limits.
Unless the Department of Justice rethinks this troubling precedent, the public will need to press the White House for a commitment that it has not, and will not, interfere with communications from the CDC. Congress also needs to elicit a commitment from the director of the CDC that the agency will only publish accurate and honest information.
Until the White House and Justice Department make that commitment and disavow the censorship power, we the American people—including White House and Justice Department lawyers!—will not be able to make the decisions necessary to protect ourselves and our families. And until we correct the underlying structural conditions that led Justice Department lawyers to invent and sustain concepts like the censorship power, we will likewise be ill-equipped to protect the fundamentals of our democracy.