Reponse by president, Congress offers case study in U.S. constitutional structures

Watching the response to COVID-19 has provided a fascinating case study in constitutional structures. Every day we get new information as federal and state governments respond to the evolving crisis. The Constitution sets up two basic divisions of power — a horizontal division and vertical division. The horizontal division of power consists of the most basic system of shared powers we are all familiar with — the legislative, executive and judicial branches at the federal level. The Constitution also sets up a sharing of power between the federal government and state governments.

As the coronavirus pandemic expands, we see these very basic structures being put to the test. During times of crises, Americans instinctively turn to the president as a leader, someone that will make tough choices, inspire the country and ensure we are able to weather the storm. It is not just that the people ask the president to comfort the nation during its time of need, but also to exercise very real powers — powers that are not clearly stated in the Constitution or that belong to the president. These are times when our system is tested and we are witnessing at least three instances of constitutional tests. 

While Congress is primed to exercise its oversight function and ensure the president “take care that the laws be faithfully executed,” constraining an executive during times of crisis is extremely challenging.

First, President Donald Trump has signaled a desire to inject capital into the economy and has made economic strength during this crisis a key concern. The president does not have the ability to do this independently and must rely on Congress, which has the power of the purse. Although Congress passed a stimulus bill on March 27, it was not everything the president wanted and now the president is charged with administering a $2 trillion aid package to the American public, the largest in history. For better or worse, control over this money will allow the president to consolidate power in the executive branch.

While Congress is primed to exercise its oversight function and ensure the president “take care that the laws be faithfully executed,” constraining an executive during times of crisis is extremely challenging, as is evidenced by the limited effectiveness by the stimulus oversight committee. Compounding this challenge is that there is no clear precedent on which to rely. The president regularly invokes the language of a war on the scale of World War II. Even World War II was different because the homeland and civilians were not directly impacted in the same way. Thinking about the massive amounts of power and authority Franklin Roosevelt and Harry Truman exercised during WWII, it is not unreasonable to think Trump could amass, and Congress could delegate, significant authority to the executive. How the legislative and executive branch will balance power during this crisis is a key constitutional test to our system of shared powers.

The levers of emergency power

The second constitutional test arises with Trump’s hesitance to invoke the National Defense Production Act. Utilizing this emergency power would allow the president to direct private companies to shift production to materials needed to combat the coronavirus — surgical masks, respirators, etc. The act was passed in 1950 during the Korean War and regularly gets reauthorized. However, its use is highly confrontational — the president of the United States mandating private companies shift their production under threat of penalty. Trump decided to utilize authority under this act and directed General Motors to shift production to ventilators, though reporting suggests conversations between Trump and the CEO of GM occurred before Trump’s order.

Dr. Michael Thunberg

Again, there is no clear precedent for what this might look like. The closest historical example is when Truman seized the steel mills in face of a strike so production would continue during the Korean War. This did not end well for Truman and the Supreme Court ruled this was beyond the scope of the president’s constitutional authority — a major blemish on any president’s record. The current crisis is more acute than the Korean War, but for a president accustomed to litigation, it is understandable that there is some hesitancy. The courts could be asked to weigh presidential power versus the value of free-market principles during a time of crisis. If the courts are asked to weigh in, it will set a strong precedent on the use of presidential power during times of crises.

Lastly, the federal government has been very hesitant to cross the boundary of federal-state relations. While the federal government is supreme in our republic, there is a true sharing of power and states have very real authority and independence. There has been no national curfew, no deployment of the U.S. military, and no national testing. Even current stay-at-home orders and CDC guidance on wearing masks in public are guidance and not policy. Instead, states are each developing their own response to the crisis, some asking the federal government for help and others operating more independently. Watching federalism respond to the coronavirus provides 50 unique case studies for responding to a national crisis. It cannot be understated that as a nation, we have not witnessed something like this in the modern era. Federal and state governments are navigating uncharted waters as they respond to something that has a massive impact on citizens and the economy, leading some states to respond sooner than others. Even as states ask for help, it is clear they are unwilling to give up control in the constitutional balance of power.

No matter what, this crisis will change how power is distributed in the United States. Action is necessary and as the Founding Fathers argued, a single, energetic president is best poised to respond to crisis. As a nation we should be cognizant of the fact that every action at the federal and state level is changing the constitutional balance of power. When we emerge from this crisis, which we will, we need to take stock of all that was done and take steps to ensure our constitutional structures maintain our “more perfect union.”

Dr. Michael Thunberg is an assistant professor in the History and Political Science Department at Norwich University. He is also program coordinator for international studies.

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