This article is a student op-ed piece from Professor Kim Wehle’s spring 2020 course “Advanced Constitutional Law: Democracy at Risk.” The Legislation and Policy Brief allowed the students to publish their writing on the blog if they wished. The blog pieces were edited by the Legislation and Policy Brief for grammatical and technical errors only, and they appear as they were written by the authors in April of 2020.
Student Author: Anthony Fusaro
As the Coronavirus pandemic persists, many have expressed strong opinions regarding what power the Constitution grants the federal government – specifically the executive branch – to meet such an unprecedented situation. Some have argued that the Constitution leaves matters of public health exclusively to the states, and thus the federal government only possesses the limited power to enforce quarantine measures at the nation’s borders. Others have countered that the ability of infectious disease to easily spread across state lines presents a crisis of national concern, and thus, federal intervention in areas typically reserved to the states is warranted.
Regardless of what position one takes in this theoretical debate over federalism, it is evident that one man alone will be tasked with interpreting the Constitution and resolving the issue on behalf of the nation – Donald J. Trump. How, you might ask, in a nation that prides itself as having a well-structured system of checks and balances, did a decision with such significant constitutional implications get placed in the hands of one, let’s leave it at ‘unqualified,’ individual?
Well, the short answer is that 80,000 people in Wisconsin, Pennsylvania, and Michigan really didn’t like Hillary Clinton. The longer answer – however – requires a brief inquiry into the intended purpose of American federalism and the gradual aggrandizement of the American presidency.
The founders devised our federalist system to form a central government capable of protecting the various states from those foreign and domestic threats that they themselves could not face individually. However, the founders were also weary of creating a dictatorial central government that resembled the one they had just revolted from.
Madison’s conception of federalism struck the balance between these polar desires. By creating a national government of essential but limited powers, the people would have most of their policy set at a regional level, and the central government could focus on the tasks of providing for the common defense and ensuring domestic tranquility.
In meeting these ends, Hamilton urged that the enumerated powers of the national government,
“ought to exist without limitation, because it is impossible to foresee or define the extent and variety of national exigencies . . . The circumstances that endanger the safety of nations are infinite, and for this reason no constitutional shackles can be wisely imposed on the power to which the care of it is committed.”
(Hamilton, Federalist No. 23, emphasis added).
That may be all well-and-good in theory, but what if that care is committed to an impetuous buffoon? According to Hamilton, elections have consequences: once you’ve decided as a nation to form a central government entrusted with ensuring domestic tranquility, “it will follow that that government ought to be clothed with all of the powers requisite to complete execution of its trust.” (Hamilton, Federalist No. 23).
The Public Health Service Act is emblematic of a massive growth in federal authority over the 20th Century, and its subsequent delegation to the executive branch. Under the statute, once the HHS Secretary declares a public health emergency, the executive branch acquires significant powers to issue quarantine orders that apply directly to states and their citizens. Further, the regulations authorize the CDC director to apprehend and isolate individuals attempting to travel across state-lines who are “reasonably believed to be infected.”
While these measures raise legitimate concerns over potential civil liberties violations, the significant powers assigned to the President under the Public Health Service Act are not only constitutional, but are the very essence of the national government fulfilling its duty under federalism.
First, because the nature of infectious disease and its rapid spread requires cooperation between states, a pandemic presents a domestic issue that states are simply incapable of resolving alone. Furthermore, unlike most policy disagreements between states (i.e., whether to impose a sales tax), a state’s inadequate response to an infectious disease can predictably put the health of the entire nation at risk. Thus, a pandemic presents the rare domestic crisis that threatens the national as a whole, and accordingly justifies the federal government assuming unusual powers in order to “insure domestic Tranquility . . . [and] promote the general Welfare.”
Still, in the presence of an ‘unqualified’ President, we are painfully reminded why the founders championed checks and balances in domestic decision-making. Because of one poor electoral choice, a man who publicly and sincerely asked whether ingesting disinfectants could combat COVID-19 is alone responsible for determining the delicate balance of federal and state power. From this, some may conclude that the coalescing of so much unchecked power in the hands of one man is antithetical to our Constitution’s commitment to checks and balances. Others may consider the intractable nature of the problem, and conclude the only practical recourse is to elect competent leaders in the future. Some, still, may put on their MAGA hats, take a shot of bleach, and throw on some Hannity. God Bless America.