Washington’s response to the Covid-19 pandemic is upending one of the most durable patterns of American politics. Throughout history, national emergencies have led to a more powerful and centralized federal government and to the transfer of federal power from Congress to the executive branch. This time, the federal response rests largely on state and local government and private enterprise, with a wave of deregulation clearing the way. The Trump administration has seized no new powers, and Congress has stayed energetically in the game.
The historical pattern is powerful and might have seemed inevitable. In times of war, natural disaster and economic upheaval, action is king. The president and his officials and agencies can act with much greater dispatch than Congress can. They may be forgiven for crossing statutory or even constitutional boundaries—in a crisis, the test of legitimacy is perceived effectiveness. But emergency actions often set precedents for normal times.
Moreover, crises generate proposals for preventing their recurrence. These typically take the form of an agency that, with the benefit of hindsight, could have nipped the crisis in the bud. Positing an omnicompetent government authority is political misdirection: It elides the profound problems of uncertainty and conflicting information and interpretation that precede every catastrophe. That is a sure recipe for highly concentrated, discretionary power.
These tendencies were dramatically on display in the first two national emergencies of the 21st century, 9/11 and the 2008 financial collapse. In response to the 9/11 attacks, the Bush administration and Congress created two gigantic agencies with extraordinary powers and insulation from congressional control, the Department of Homeland Security and the Office of the Director of National Intelligence. Intelligence was centralized and bureaucratized; federal police powers were extended down to driver’s licenses and much else; the administration established wide-ranging surveillance programs.
In response to the 2008 crisis, the administration arranged corporate mergers and bailouts with only fig leaves of statutory authority. It spent hundreds of billions of dollars without congressional appropriation. These crisis expedients provided the template for the Obama administration’s unilateral responses to mere political frustrations—congressional inaction on its climate change, immigration and other legislative proposals. At the same time, the Dodd-Frank Act of 2010 commissioned an army of new regulatory authorities with unprecedented discretion and autonomy.
It is not only crises that propel the administrative state. Lesser events of the 2000s—accounting scandals and a spike in energy prices—also led to new layers of freewheeling federal power. But major emergencies have unfailingly been major inflection points.
Until now. In responding to the coronavirus, the Trump administration has confined itself to longstanding statutory authorities that have been invoked routinely in responding to lesser emergencies. President Trump has used the Stafford Act of 1988 to provide states with emergency financial assistance—but has deferred to their decisions regarding social confinement, business closures, testing and treatment. He has employed the Defense Production Act of 1950 to cajole manufactures to prioritize urgently needed medical equipment—but has relied primarily on consultation, coordination and publicity to coach a private-sector-led mobilization. He has declared a national emergency under the National Emergencies Act of 1976, which can potentially trigger extraordinary regulatory powers—but so far he has used it only for deregulatory purposes, waiving Medicare, Medicaid, Children’s Health Insurance and Health Insurance Portability and Accountability Act rules that restrict telemedicine and interstate medical practice.
Mr. Trump has received criticism from all sides for these measured responses. It is said, on the one hand, that he should aggressively commandeer state police powers and industrial resources to mount a uniform national response—and, on the other (sometimes by the same critics), that the crisis will sooner or later unleash the authoritarian ambitions Mr. Trump has supposedly been harboring all along.
His replies have been characteristically adamant. He has extolled his administration’s performance on the measures that are unarguably federal jurisdictions—restricting foreign travel, deploying the military’s medical resources, mobilizing production of materials in short supply and allocating them among states and cities, providing information on the spread of the virus and guidance on mitigation measures. He has been jealous of federal prerogatives and sharply critical of governors and business executives he regarded as uncooperative.
But mainly he has given pride of place to federalism and private enterprise—lauding the patriotism and proficiency of our fantastic governors and mayors, our incredible business leaders and genius companies, our heroic doctors and nurses and orderlies, and our tremendous truckers. By shouting out many of them by name and documenting their deeds on a daily basis, he has vivified the American way in action (once reluctantly aroused). When asked why he has not issued orders for nationwide home and business lockdowns, he has emphasized that the intensity of the epidemic varies widely and is best met by calibrated state and local judgments—and added pointedly that such steps would conflict with the Constitution.
What nonsense. Everyone knows that we have a living, breathing Constitution that adapts and changes to meet the needs of the time, defined as whatever the chattering class wants at the moment.
Plus: “The most striking aspect of the administration’s response has been its waiving or liberalizing of hundreds of regulatory requirements that would otherwise impede efforts to cope with the epidemic and ensuing shutdowns. The Food and Drug Administration has relaxed its extreme restrictions on the development and deployment of medical tests, equipment, drugs and vaccines. The Medicare and Hipaa waivers, along with the suspension by many states of their restrictions on out-of-state medical professionals, are allowing doctors and nurses to go where they are needed and to practice telemedicine. The Education Department is easing its micromanagement of school districts to facilitate online teaching and other initiatives. Teachers I know are enthusiastic about the cancellation of this year’s federal testing requirements—now they can actually teach their students instead of merely preparing them for tests.”
Most of these requirements — possibly all — should be permanently abolished.