Everything about the coronavirus crisis looks and feels like a war that is all the more unsettling because the enemy is invisible and immune to brute force. Yet amid all the signs of conflict — declarations of emergency, mobilizations of National Guard troops, the exercise of extraordinary powers — there is enduring constitutional danger in treating this crisis like a war. When this pandemic is over, generations will have to deal both with its terrible human toll and with the constitutional changes it yields.
Wars transform political systems, often in ways that are difficult to reverse. So do major crises. Even as Americans understandably focus their attention on the dire public health emergency the nation faces, they should allot some consideration to the effect of our response on the nation’s constitutional fabric. The political system that emerges from this pandemic is almost certain to concentrate more power — perhaps power of an acutely intimate nature, the kind that decides personal matters of life and death — in the national government generally and in the president specifically.
This particular crisis, which requires prolonged attention to detail and the magnanimity to set personal and partisan grievances aside, does not play to President Trump’s strengths. His propensity for short-term thinking was evident in his preposterous suggestion Tuesday that, against all the available evidence about public health, he wanted the country “opened up, and just raring to go, by Easter.” But in constitutional terms, his own personal capacity to rise to this moment is less important than whether the nation should want a lasting concentration of more power in executive hands. Even if Mr. Trump were better suited to the moment, that would not mean future presidents should have more power.
“War,” James Madison wrote, “is in fact the true nurse of executive aggrandizement.” That has been true of nearly every war the nation has fought. In many cases, emergency powers have been temporarily necessary but permanently transformational. Madison’s warning holds for war metaphors as well. The nation’s “wars” on poverty, drugs and other problems have all concentrated power in the federal government and the men we have chosen to lead it. Presidents — who, as Madison noted, wield the power and wear the laurels of war — have an incentive to encourage this.
Mr. Trump has already declared himself a wartime president. That is unsurprising. What is more troubling is the eagerness of legislators for him to act that way.
Recent weeks have witnessed a curious constitutional inversion: legislators eager to surrender power to a president reluctant to wield it. This was perhaps most evident in the crisis posture of Chuck Schumer, the Senate’s Democratic leader. He repeatedly pressed Mr. Trump to declare a national emergency under the disaster-related Stafford Act only to release a statement after it happened urging the chief magistrate not to “indulge his autocratic tendencies.” If Mr. Schumer was concerned about those tendencies, why was he so eager to give Mr. Trump more power? That power may have been justified, at least temporarily. Emergency powers often are. The problem is that they accumulate and endure long after the emergency ends.
The constitutional system of separation of powers was not designed to work with the legislature heaping power on the president and then pleading with him not to abuse it. Federalist 51 famously described a mechanism by which competing ambitions to exercise power would keep each branch from encroaching on the other.
There is an excellent argument to be made that this crisis requires an unusual degree of presidential authority, regardless of whether one wishes a different president could wield it. It is understandably difficult to look beyond the crisis now, but constitutional questions must be considered without regard to the temporary occupant of any office. Whoever is president, the key is that additional powers conferred on the executive be given only temporarily, with Congress holding the leash.
That is the inverse of how this crisis has unfolded. Having been pressured to declare a national emergency, Mr. Trump unsurprisingly swung for the constitutional fences. He declared an emergency not only under the Stafford Act — which releases disaster-relief funds — but also under the National Emergencies Act, which could trigger dozens of statutory provisions, many of which do not bear on this crisis.
What is particularly disturbing about this procedure is that the National Emergencies Act effectually empowers presidents to retain emergency authority until they decide to give it up. An emergency declaration can be renewed by the president and terminated only by a joint resolution of Congress that requires the president’s signature. The expectation that presidents will voluntarily renounce emergency authority runs contrary to all assumptions the constitutional order makes about the seductions of power, which, as Federalist 48 noted, is “of an encroaching nature.”
It is especially disturbing that Mr. Trump was goaded into invoking the Korean War-era Defense Production Act, which enables presidents to direct industrial production toward war needs when national security or natural disaster requires it. The fact that the act has been amended to apply to domestic emergencies underscores the tendency of emergency powers to expand. What about Mr. Trump’s erratic response to the coronavirus pandemic thus far — from his early flattering of China to his repetitive efforts to minimize the crisis — inspires confidence in his ability to command the industrial capacity of the nation?
Even if one granted the defensible premise that the national government needs to do more to force industry to produce emergency medical supplies, equating domestic crisis with foreign war is dangerous. War powers are notoriously difficult to contain once unleashed. They tend, instead, to metastasize, as in a recent Justice Department request to allow indefinite detention without trial during emergencies. More broadly, crisis powers tend to remain in presidential hands once the immediate danger passes, especially when wars do not have clear beginnings and ends.
Witness the fact that the post-9/11 Authorization for Use of Military Force remains in effect nearly 19 years later. Americans born after it was enacted will be eligible to vote in the next election. They are also serving in the seemingly endless conflicts that have ensued. In the case of 9/11, the preoccupation was with emergency action at all costs. We are still grappling with the constitutional fallout a generation later.
The coronavirus crisis could prove even more insidious. Mr. Trump’s use of the National Emergencies Act to help fund his border wall shows how tempting that kind of power can be. If war statutes are converted to domestic use, Democrats might consider what will happen if Mr. Trump — who has already likened illegal immigrants to invaders — declares a metaphorical war on them.
Similarly, Republicans should survey the powers being conferred on Mr. Trump and ask whether they would be comfortable with Joseph R. Biden, the presumptive Democratic nominee, for president, invoking national security powers for urgent “wars” that address his priorities, like climate change or gun control. It may be a far leap from here to there. It is also now a shorter one.
None of these is equivalent to the genuine and immediate crisis the coronavirus presents. But all of them serve as warnings that the powers will not easily go away when this crisis ends. Far from it: We risk becoming inured to them and legitimating their future use.
These scenarios are all the more disconcerting for being so preventable. Congress has shown in recent days that it has the capacity to act in times of crisis. It overwhelmingly passed an initial round of emergency measures, which Mr. Trump promptly signed into law.
It is true that the economic bailout was delayed by disagreement on the proper extent of government authority and the responsibilities of corporations that receive public money. But now above all times, and with $2 trillion at stake, that was a debate worth having.
Instead of bending wartime statutes to domestic use or activating emergency statutes laced throughout the federal code, Congress could have identified the specific powers Mr. Trump needed to deal with this crisis and conferred them on a temporary and renewable basis. That would have left it up to Congress, not the president, to decide how long these exceptional executive powers were available.
It is difficult to make room for constitutional considerations while a pandemic is sweeping the nation and overwhelming health systems. But this is when those considerations matter most, because they establish precedents that do not end with the crises that produce them.
Crisis both necessitates constitutional protections and tests our willingness to adhere to them. Perhaps the coronavirus crisis is an opportunity to show that another element of the constitutional system — the citizenry’s willingness to consider constitutional questions even when they seem remote from immediate emergencies — is resilient too.
Greg Weiner (@GregWeiner1) is a political scientist at Assumption College, a visiting scholar at the American Enterprise Institute and the author of “The Political Constitution: The Case Against Judicial Supremacy.”
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