Yoo and Dhillon: Federalism vs. coronavirus — who has the power to fight pandemic?

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Under our constitutional system, the executive branch bears the primary responsibility for confronting the coronavirus pandemic. But President Trump is not the only or even the most important executive now. To prevent the spread of the coronavirus and its damage to our communities, state governors are the front line of attack.

Governors, including Gavin Newsom in California and Andrew Cuomo in New York, have reacted aggressively to the pandemic by ordering a virtual lockdown of all residents, the closure of most businesses, and the end of much economic activity – all with very little notice and no opportunity for an affected citizen to receive due process.

Of course, the federal government has a significant role to play in the crisis.

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Under our Constitution of limited national powers, the federal government can bar those who might have the coronavirus from entering the United States or traveling across interstate borders. It can use its spending powers to provide medical equipment and drugs. It can transfer money to states and cities or private entities, such as hospitals, to help with costs. It can help disseminate information on the disease, fund research on a vaccine and cure, and coordinate the efforts of public and private institutions with guidance for best practices.

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The president cannot do these things alone. Most disaster relief and health policy comes to him through delegations from Congress. Congress holds the federal purse strings and regulates interstate commerce.

Trump can declare a national emergency, as he did last week, that allows him to disburse up to $50 billion in federal funds, but only because Congress has appropriated money. Trump can send masks, equipment and even military hospitals, but only because Congress has bought and paid for them. Even if conditions significantly worsen, Congress has imposed procedures before a president can deploy the National Guard.

States, not Washington, D.C., possess the “police power,” which gives them authority to regulate virtually everything within their boundaries. As the Supreme Court has long recognized, the most compelling use of state power is to protect public health and safety.

The coronavirus, with its foreign origin and its rapid spread through our population, is precisely the type of crisis for which executive action is most suited.

Under their police power, only the states may impose broad quarantines, close institutions and businesses and limit movement and travel. These powers are subject to constitutional limits, including due process and government takings clauses, though the contours of these powers and limitations are being put to the test. Now that the pandemic has reached every state, the federal government’s ability to surge resources to a single location — say, in response to a hurricane or similar natural disaster — has limited value. Only a state government, with all of its personnel and resources, can apply the measures needed to stop the spread of the disease.

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Within the federal government, the executive branch bears the primary responsibility for confronting the pandemic because of the unique features of the executive. In explaining the need for a vigorous executive branch, Alexander Hamilton wrote in Federalist 70 that “Energy in the executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks; it is not less essential to the steady administration of the laws.”

The coronavirus, with its foreign origin and its rapid spread through our population, is precisely the type of crisis for which executive action is most suited.

In order to achieve that energy, Hamilton observed, the Constitution had to concentrate executive power in a single person.  “Decision, activity, secrecy and dispatch will generally characterize the proceedings of one man, in a much more eminent degree than the proceedings of any greater number.” Hamilton argued. A legislature of 535 members cannot act as swiftly or decisively to answer the coronavirus threat than a president. While a single person might make more mistakes than a more deliberative group, some emergencies require the government to act quickly rather than perfectly.

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We’ve seen a number of state executives acting swiftly in response to coronavirus. But many state charters control the vast police powers of their governments by denying their chief executive the broad powers the federal Constitution allows the president. They elect other officers of the executive branch (such as attorneys general), rather than allow the governor to control the government completely. That’s why governors would be wise to be transparent and deliberate in their decision-making during the current crisis. Constitutional limits should also provide the incentive to reverse extreme measures such as economic lockdowns when conditions allow.

Our Declaration of Independence recognized the natural law principle that the consent of the governed is needed for that government to have enduring legitimacy. The patience and support of the governed are certainly being put to the test, and will ultimately decide the legitimacy of measures taken to battle the coronavirus.

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Harmeet K. Dhillon is a trial lawyer and a partner in the Dhillon Law Group in San Francisco. She is co-chair of the Republican National Lawyers Association.

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