Jurisprudence

How to Force the White House to Keep Us Safe in a Pandemic

Only Congress can fix this problem.

Nancy Pelosi in a blue dress with a gold pin.
Nancy Pelosi has leverage, and she can use it.
Alex Wong/Getty Images

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Across the globe, national governments have taken drastic measures in light of the coronavirus pandemic, from tracking people’s cellphones to postponing elections to criminalizing the dissemination of false information. The Hungarian Parliament has authorized the prime minister to effectively override any law that stands in the way of his COVID-19 response. While some of these measures may benefit public health in the short term, they also risk expanding executive power to a dangerous degree—leading commentators to wonder whether democracy can survive this pandemic.

The situation in the United States looks different. Unlike many of his counterparts abroad, President Donald Trump cannot be accused of acting too aggressively to head off the virus. On the contrary, there is a virtual consensus that his efforts have been woefully insufficient. The Trump administration underplayed the threat for weeks, ignored a National Security Council playbook on fighting infectious diseases, and failed to ensure adequate production and distribution of test kits, ventilators, and protective medical gear. The results have been tragic, as the United States has become the new global epicenter of the pandemic.

This makes for a very odd crisis of governance. Civil libertarians have long worried about political leaders fabricating emergencies to enlarge their own powers. We have been warned for decades about the rise of the imperial presidency. And our history is filled with Supreme Court cases over whether the president exceeded constitutional limits in the name of national security—from the suspension of habeas corpus during the Civil War to the use of internment camps during World War II to the indefinite detention of enemy combatants after 9/11. Often, the courts defer to the president, but our constitutional tradition gives us plenty of resources for challenging executive overreach.

Our constitutional tradition gives us hardly any tools to address what is happening now: a president who has proved unwilling or unable to meet a genuine disaster with decisive action. The Constitution’s preamble speaks of promoting the general welfare and providing for the common defense, but courts have never read this language to create enforceable duties. Nearly all U.S. constitutional rights are so-called negative rights against government interference, not positive rights that force public officials into action. And unlike many other democracies, our Constitution lacks a “no-confidence” mechanism that could allow a poorly performing president to be replaced immediately with a more effective one.

The upshot, in this case, is a kind of invisible breakdown in our constitutional system. If Trump had taken strong steps over the past two months to limit the spread of COVID-19, those steps could have been tested for conformity with individual liberties, federalism principles, and the separation of powers, as well as relevant statutes. Yet by jeopardizing our national security through inaction, Trump has insulated himself from legal scrutiny or accountability.

Only one institution can remedy this breakdown. In area after area where government intervention might be useful, Congress has the power, under Article I of the Constitution, to compel the executive branch to act.

Recognizing as much, congressional Democrats have introduced bills that would require the executive branch to oversee the production of specific quotas of N95 face masks, face shields, and ventilators. The Defense Production Act of 1950 already empowers the president to do what is “necessary to create, maintain, expedite, expand, protect, or restore production and deliveries or services essential to the national defense,” but Trump did not utilize this power at all until March 27 (he invoked it again last Friday), and even then in a limited manner that falls far short of what many experts recommend. The new bills would give him no choice but to press harder.

These proposed measures also provide a model, more generally, for how Congress can fight a pandemic when the president would largely prefer to pass the buck to the states and the private sector: Congress can compel executive action by replacing open-ended grants of discretionary authority with relatively clear commands.

Congress could, for instance, mandate that the Centers for Disease Control and Prevention collect and disclose more information about the virus’s spread. Congress could establish a comprehensive testing and tracing plan, with control assigned to an office such as the National Institute of Allergy and Infectious Diseases. Congress could direct the Federal Emergency Management Agency and the Army Corps of Engineers to build temporary hospitals. Congress could bar Immigration and Customs Enforcement from taking new people into detention and insist that detention facilities release vulnerable individuals. When it enacts the next economic relief package, Congress could require that medical aid go to the areas with greatest need, preventing disbursement based on political considerations. And Congress could instruct agencies to withhold significant federal funds from any state, city, or private party that refuses to comply with CDC guidance or other public health best practices.

Trump might resist some of these efforts, and any legislation would have to pass the Republican-controlled Senate. But Democrats will gain political leverage as it becomes increasingly clear that additional federal support is needed to keep the economy afloat. The dire facts on the ground make it possible to induce the White House to accept provisions it might not otherwise accept by tying them to new spending.

Apart from new legislation, a majority in the House of Representatives can achieve some of the same ends simply by threatening tough hearings or investigations. Speaker Nancy Pelosi has formed a select committee to oversee the distribution of relief funds, with a focus on “price gouging, profiteering, and political favoritism.” This is a valuable start, but there is no reason to stop there. The House should examine all aspects of the administration’s coronavirus (non)response, while proactively pushing it to secure lifesaving medical equipment and infrastructure at greater speed and scale.

Congress generally delegates broad discretion because of the executive branch’s superior technical expertise and ability to adapt policy to changing circumstances. As Alexander Hamilton explained in Federalist No. 70, the executive can act with greater “energy” and “despatch” than the other branches. But when the president refuses to heed expert warnings and to show sufficient initiative on a matter of grave importance, Congress should take back the reins.

If this seems too much to ask of our least popular branch, note that even with divided control of the chambers, Congress has passed three major bills in less than a month—an energetic showing by any reasonable standard. Without purporting to micromanage Trump’s response to the coronavirus, new legislation could oblige his administration to do far more than it seems inclined to do on its own.

Our constitutional tradition has a lot to say about preventing executive tyranny. But it has almost nothing to say about a crisis of executive underreach such as the one we are living through. The courts cannot spur presidential action to fight the pandemic. Nor can the governors, mayors, and private sector leaders who have shown creative leadership in recent weeks. Only Congress can force the bold federal response that we so badly need.