Most crises in American life have been local. Even the disasters of earthquakes, tornadoes, hurricanes, and floods are relatively confined in space and time. They do not spread to every state and threaten every corner of all of our lives. The coronavirus pandemic is that rare crisis that is truly national, where the response of a state may ultimately be only as effective as the response of other states.
By now the vast majority of the country is under stay-at-home orders, issued state by state, but a handful of holdout states threaten to undercut the efficacy of others’ costly and painful social-distancing efforts. As a result, states with fewer infections and deaths may merely await their turn to become hot spots, particularly as some states with lockdowns could begin to lift them prematurely while others keep their lockdowns in place.
The dangers of non-uniformity urge the question: If our fates are bound together in this emergency, why has there been no national stay-at-home order? Asked earlier this month whether there should be a federal order locking down the nation, Anthony Fauci, the directorhg0088 of the National Institute for Allergy and Infectious Diseases, said, “I just don’t understand why we’re not doing that—we really should be,” but he also acknowledged a tension with “states’ rights to do what they want.”
Fauci is not alone in thinking that a national order would be preferable. Experts who have called for one include the epidemiologist and activist , the former senior Department of Homeland Security official , and the economist . , the director of the Harvard Global Health Institute, has explained that a national shutdown could give the government time to predict hot spots and increase its testing and hospital capacity; afterward, it could focus on the testing and tracking that has been effective in South Korea. State-by-state patchwork solutions because asymptomatic carriers continue to travel between states, and because competition for medical supplies among states leads to the misallocation of resources. A number of have also advocated for a national policy of requiring the wearing of masks in public, as several states, cities, and counties, as well as other nations, have done.
President Trump has resisted a mandatory national lockdown and declined to frame federal recommendations on social distancing, staying at home, and mask-wearing as legal orders. He has explained that “states are different” from one another, and also that “this country wasn’t built to be shut down.” It seems unlikely that Trump’s reluctance to issue orders stems from a sense of constitutional limits. When, on Monday, two coalitions of governors announced plans to coördinate their eventual easing of restrictions regionally, they provoked his false claim that the states “can’t do anything without the approval of the President of the United States.” Trump went on to falsely claim that only the President can ease the restrictions that states have imposed on economic activity, before backing down and telling governors, “You will call the shots.” Many liberals and conservatives have feared Trump’s authoritarian proclivities but, apart from his chaotic, error-filled daily use of the bully pulpit, he has been strikingly uneager to wield federal executive power in this crisis.
In other democratic countries, most notably Hungaryhg0088, there is genuine fear that the pandemic is enabling consolidation of emergency executive powers as a gateway to dictatorship. It was, of course, imaginable that Trump might attempt to take his Presidency in that direction, and we may have his incompetence to thank for not witnessing that thus far. But even with the risks of growing executive power in general and of Trump’s disastrous leadership in particular, it is worth considering seriously the need for federal orders to both lock down and eventually ease up public activity and commerce in a coördinated way—particularly if, as Fauci and other experts have warned, there may be waves of outbreaks across the country and throughout the year. This is in addition to other steps a more active Administration might , including providing more federal resources to states, guaranteeing loans to finance the production of needed supplies, and mobilizing the Public Health Commissioned Corps, which is overseen by the Surgeon General, to staff field hospitals (as it did in Liberia during the Ebola outbreak).
If Trump were to impose orders that bind everyone to stay at home or wear masks, his constitutional authority to do so would be highly contested as a matter of both separation of powers and federalism. Still, such orders might well be consistent with both. First of all, Congress might authorize the President to issue such orders, which would vastly bolster their legitimacy if challenged in court. Congress could certainly pass legislation imposing a temporary national stay-at-home order and insuring the national coördination of lifting of the restrictions. The Constitution gives Congress power to regulate commerce “among the several States,” and it is all too clear that this deadly pandemic is destructive to interstate commerce. Congress could also use a statute to authorize the President to act in a particular way, as it did with the Defense Production Act of 1950, which allows the President to require companies to fill orders for products that “he deems necessary or appropriate to promote the national defense.” President Harry Truman invoked the statute during the Korean War, to compel manufacturing companies to produce needed materials. On March 27th, Trump, under that law, ordered a handful of manufacturing companies, including General Motors, to produce ventilators.
A host of other federal statutes give the President authority to address aspects of the crisis. The Public Health Service Act of 1944, passed during the Second World War, authorizes the executive branch to prevent the “spread of communicable diseases,” allowing the federal government to detain individuals who are “reasonably believed to be infected” and contagious, and who are moving into states or are a “probable source of infection” to people moving between states. In 1949, the law was used to prevent carriers of yellow fever from the country. The fact that Congress specifically authorized detaining the infectedhg0088 may be read to implicitly disallow the wider (yet less restrictive) measure of ordering even the healthy to only leave their homes for essential purposes. But because the statute allows the executive branch to issue regulations that are “necessary to prevent” the spread of contagious disease across state lines, the statute is arguably broad enough to include a federal stay-at-home order.
Beyond any congressional statutes, the Constitution authorizes the President to exercise “the executive power” of the United States. Although Trump has done little with his power to address the present crisis, the Administration’s lawyers have previously taken a broad view of executive power, as have other Presidents. At his Inaugural Address in 1933, during the Great Depression, Franklin Delano Roosevelt said that, if Congress failed to act in the national emergency, he would ask “for the one remaining instrument to meet the crisis—broad executive power to wage a war against the emergency, as great as the power that would be given to me if we were in fact invaded by a foreign foe.” (Congress then enacted numerous New Deal laws delegating enormous authority to the executive branch, which grew prodigiously as a result.) Today, the framework for when the exercise of executive power is in keeping with separation of powers comes from Youngstown Sheet & Tube Co. v. Sawyer, a 1952 case that involved President Truman’s decision to take over the nation’s steel companies. The Supreme Court declared the President’s order unconstitutional, with the majority finding that because nothing in a statute or in the Constitution gave the President authority to seize private property, even in an emergency, his order invaded the lawmaking power reserved for Congress.