The kerfuffle over how much authority the president has vis-à-vis state governors boiled over at a recent White House coronavirus briefing. Missing in the debate is the conundrum that became apparent in August 2005, during Hurricane Katrina.
During a critical week, from two days before Katrina, to five days after, there arose a conflict the likes of which had never been seen in American disaster governance: an open clash between the president on one side and the Louisiana governor and the mayor of New Orleans on the other.
The Depression-Era Heritage. Put simply, the statutes governing emergency authority during disasters were enacted after the Great Flood of 1927, when the Mississippi River crested at a record level. With the federal government then but a minuscule collection of departments and agencies, the preponderance of governing power rested with the states. The U.S. Constitution provides for a tripartite division of sovereignty: specific, enumerated powers delegated to the federal government; other governing powers — including the “police power” — reserved to the States per the Tenth Amendment; and residual rights reserved for the people per the Ninth Amendment. In essence, these two amendments confer popular sovereignty. The idea of popular sovereignty is also found in what is regarded as the “organic law” of the Declaration of Independence, in Thomas Jefferson’s famed formulation:
We hold these truths to be self-evident: that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these rights are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — . That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it.
When Franklin D. Roosevelt assumed the presidency, he began a huge expansion of federal power that, with few brief interludes, continued for 84 years. President Trump has presided over the largest rollback of federal power since the 1920s. But one area where the federal government rarely asserted control was emergency authority during disasters. So long as the relationship between federal and state governments was reasonably cooperative during disasters, this did not present a problem. Governors invited federal assistance — and, at times, federal troops — and welcomed federal funds to assist in overall disaster recovery.
The federal government has rarely exercised its emergency powers. Constitutional law scholars David Rivkin and Charles Stimson note that the Supreme Court ruled 7-2 in the 1905 case of Jacobson v. Massachusetts that public safety during an epidemic allowed the government to compel people to accept vaccinations. Per Justice John Marshall Harlan’s opinion:
The Constitution does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint … a community has the right to protect itself against an epidemic…. [Its members] may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.
Rivkin and Stimson also cite the Public Health Service Act, a 1944 law that provides for federally mandated containment and quarantine, to the extent necessary to combat communicable diseases. But they caution that, if it is invoked, it likely will be challenged in court.
The above legal framework favoring state over federal power did not prevent the federal role players from seeking to encroach on state prerogatives in the “Dark Winter” smallpox simulation conducted in 2001.
And then, along came Hurricane Katrina.
Katrina. On Saturday, August 27, 2005, two days before the hurricane struck, President Bush declared New Orleans a federal disaster area. (His declaration proved doubly right; Katrina was only the first disaster to befall Louisiana; second was the response of its execrable public officials.) Bush contacted Louisiana Gov. Kathleen Blanco and New Orleans Mayor Ray Nagin, asking for authorization to send in federal troops, under military command. Bush was rebuffed, because the governor wanted to command the federal troops, a role for which she lacked even minimal competence. Katrina, which had been a Category 5 hurricane on the Saffir-Simpson scale in the Gulf of Mexico a day before the storm made landfall, hit New Orleans as a mid-range Category 4, and, as is common upon landfall, within minutes became a Category 3, deprived of energy feed from the water. It was not until Friday, September 2, four days after Katrina struck, and three and a half days after the levee broke, that Bush received authorization to send in troops.
The nightmare that was Katrina was broadcast on network television to a shocked public. Symbolic of the breakdown of civil order was that a group of Australians found themselves targeted inside the Superdome by locals who thought foreigners would get special treatment. Sixty foreigners huddled in a mass inside the Superdome; had they integrated they would likely have been killed. Two Aussie couples were rescued under a bridge by an Australian television crew. Bush’s political Waterloo was that the public blamed him for failing to take actions he lacked clear statutory authority to take. The public, unschooled in such arcana, blamed the president — aided by a national media that presented a purely anti-Bush/Republican picture.
Thus the Katrina Conundrum: Though preeminent statutory authority rests with the States, the public holds the president primarily accountable.
Decoupling power from responsibility poses two alternative dangers: where power exceeds responsibility, reckless behavior is encouraged; and where responsibility exceeds power, timorous behavior is encouraged.
The upshot is that decisive power is decoupled from ultimate accountability. This decoupling is a recipe for disaster when leaders do not trust each other. While that conflict rarely comes to the fore with the vehemence it did with Katrina, when it does the likely result will be governance paralysis.
In the Katrina catastrophe, the decoupling of power from responsibility carried two terrible consequences: first, because state power exceeded the level of responsibility state and local officials were prepared to accept, the most helpless residents of the doomed city were left to fend for themselves when evacuation was ordered; second, because federal officials had less de jure power than the de facto responsibility that public opinion saddled the president with, federal officials were excessively cautious, awaiting a state transfer of power that did not come in time to avert anarchy in the streets and shelters.
Katrina excepted, Team Trump seems to be headed toward what legal scholar E. Donald Elliott calls “cooperative federalism”: As with environmental policy, the feds establish baseline minimum compliance standards while giving the state flexibility in how best to implement them, and the feds retain authority to intervene with a supplemental plan if a state fails to meet the minimum. Litigation here is also a common complication.
The unveiling of Team Trump’s phased recovery seems an exemplar of cooperative federalism, driven by medical data and trends, state-determined timing of phases, and individual compliance with mitigation procedures, essential in a pandemic. This should enable avoidance of Katrina’s clashes. But per the Katrina conundrum, the state governors will drive the pace and scope of the recovery, while the ultimate results will be owned, first and foremost, by the president. Given sufficient harmony, this decoupling of effective power from ultimate accountability can be well managed.
Hudson Institute scholar Christopher DeMuth calls the Trump trinity of federal, state, and private-sector authority a first-ever departure from the classic disaster response model, of opportunistic federal suzerainty leading to consequent accretion of permanently greater federal power:
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.
Cutting dense regulatory red tape has proven critical to rapid response, DeMuth continues:
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.
President Trump, for his part, has documented in a recent White House briefing a Katrina-like opposition — not at the state level, but at the national level. While Democratic governors cooperate with the president, the Democrats in Congress pursue an agenda of maximum opposition and obstruction. They have dragged out even routine confirmation of judges to such extent that no time is left to consider nominations of executive branch political appointees, leaving key executive positions vacant or occupied by Obama holdovers who obstruct the president’s policies at every turn. These include positions that are instrumental in formulating and carrying out critical coronavirus task force directives.
In service of this, the House has technically been kept constantly in session, never adjourning, to prevent the president from making recess appointments (which expire at the conclusion of the congressional term). The president noted that some appointees have waited three years, and many more have waited for two years. This procedural gambit was deployed by Senate Majority Leader Harry Reid against George W. Bush’s judicial nominees and later reciprocated by Senate Majority Leader Mitch McConnell against Obama’s judicial nominees. The latter action was upheld by the Supreme Court as a lawful exercise of senatorial power. President Trump plans to stop this.
The president threatened to invoke the Convening of Congress Clause (Art. II, sec. 3, cl. 2):
He … may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper.
The Heritage Guide to the Constitution notes, as to the meaning of “extraordinary occasions,” that the 19th century’s preeminent American constitutional scholar, Justice Joseph Story, included in his landmark 1833 Commentaries on the Constitution, among the kinds of emergencies that this clause could cover, “to provide adequate means to mitigate, or overcome, unexpected calamities.”
The Heritage Guide counts 27 times, beginning with John Adams in 1797 and ending with Harry Truman in 1948, that the president has convened Congress under this clause. It has been used for wars, economic crises, critical legislation, and in connection with presidential nominations.
But, like the other presidential emergency powers, action taken here can be contested in the courts. And as there has been no litigation of this provision because a case of first impression expediting legal process risks a hasty, ill-conceived ruling by courts under extreme time pressure.
Yet there is one final, serious objection, to federalism: myriad state and local officials have acted arbitrarily, issuing edicts of dubious constitutionality, engendering pushback protests.
Taking the prize so far, is New Jersey Gov. Phil Murphy (D). He issued an edict banning more than 15 worshippers from congregating, pursuant to which police arrested a flock of the faithful for too many congregating in a synagogue. Tucker Carlson asked Murphy, “By what authority did you nullify the Bill of Rights in issuing this order? How do you have the power to do that?” Murphy told an astonished Carlson — per Dave Barry, (I’m not making this up): “I wasn’t thinking of the Bill of Rights when we did this.… The science says people have to stay away from each other. [The Bill of Rights is] above my pay grade, Tucker.” Lawsuits have been filed against Michigan’s Gov. Gretchen Whitmer for arbitrary edicts. North Carolina has also seen protests.
Blue states have collectively gone even further, entering into multi-state compacts, by which they plan to stay locked down despite the president’s expressed wish for phased reopening to limit already enormous economic damage: seven Northeast states (Connecticut, Delaware, New York, New Jersey, Massachusetts, Pennsylvania, and Rhode Island); seven Midwest states (Illinois, Indiana, Kentucky, Michigan, Minnesota, Ohio, and Wisconsin); and three Western states (California, Oregon, and Washington).
These compacts, involving 17 states, appear to violate the Compact Clause (Art. I ,sec. 3 cl., 2) of the Constitution, which provides, in pertinent part:
No State shall … enter into any Agreement or Compact with another State, or with a foreign Power.
But the Supreme Court has largely ignored the Compact Clause, so the blue states likely will get away with their actions.
There is welcome contrary precedent: South Dakota Gov. Kristi Noem (R), who has refused to lock down her state, citing constitutional grounds. Six other red states — Alaska, Iowa, Nebraska, North Dakota, Utah, and Wyoming — have declined to lock down their residents.
The final safeguard against this kind of disregard of fundamental rights is simple: massive civil disobedience. A leader who oversteps public opinion as to imposing lockdowns would have trouble finding enforcement personnel to carry out such orders — especially if enforcement entails inflicting mass violence on resisters.
Bottom Line. The state contrarian compacts notwithstanding, Trump’s leadership, grounded in extensive cooperation with governors — who have provided leadership in their states, and, commendably, openly praised the president for meeting their needs expeditiously — has been crucial in responding to COVID-19. But a future catastrophe, with leaders less inclined to cooperate, could prove a replay of Katrina. If we learn one thing from the coronavirus pandemic, it is that the time to do rainy-day preparation for such a contingency is upon emergence from the present mess.