Seldom, if ever, has a president claimed so much power—and then turned around and done so little with it. Just a few months ago, when Donald Trump was being impeached in the House and tried in the Senate, he and his legal team insisted that presidential power is all but unlimited. Alan Dershowitz, one of Trump’s legal advisers, suggested that if the president believes that his staying in power is best for the country, he cannot be impeached for the actions he takes in hopes of being reelected. So complete is the president’s power, Trump’s legal team insisted at the time, that he can direct federal employees to defy a congressional subpoena—even after they stop working for the White House.
These arguments grew out of what constitutional scholars call the unitary-executive theory, which has been cited to justify ever more expansive powers in the office of the presidency. But with his halting response to the coronavirus, Trump has turned the unitary-executive theory on its head.
This theory holds that the president has inherent, implicit authority under Article II of the Constitution that cannot be constrained by Congress—including exclusive power to control all subordinates. In the words of the law professor John Yoo, the author of the infamous Department of Justice memos rationalizing torture under the presidency of George W. Bush, presidents need unitary executive power “to defend the country in times of crisis and emergency.” Proponents of the theory also justify unfettered presidential power as fostering accountability. The public knows where the buck stops if it stops unflinchingly with the president, and it can vote accordingly in every fourth November.
Under Trump, though, enhanced presidential powers under the unitary-executive theory have produced neither robust protections for the American people during the COVID-19 pandemic nor accountability for his actions since taking office. After weeks of stalling and misinformation, Trump has declined to use his far-reaching presidential powers to take all necessary steps to protect the public from widespread suffering and death in this unprecedented global health crisis. He has also been unequivocal that “I don’t take responsibility at all” for the federal government’s failures over coronavirus testing, affirming his personal impulse to shirk accountability—not accept it—in the face of criticism.
What could Trump be doing with his unitary-executive power to help the nation in this time of crisis? For starters, he could have used the precious weeks of February to marshal widespread testing, which we now know would have saved countless lives, instead of falsely pretending that he had the problem under control. But even in this late moment, at least three things come immediately to mind: Mandate increased domestic production of necessary equipment, comprehensively manage the supply chain for medical equipment, and order everyone in the United States to stay home while the first wave of illness crashes over the U.S. medical system—offering it a fighting chance to stay alive and maybe even catch up with the rate of infection, illness, and death.
Late last week, after weeks of intensifying pressure, Trump finally ordered General Motors to prioritize the production of ventilators, pursuant to his Korean War–era powers under the Defense Production Act. The Centers for Disease Control and Prevention reported the first U.S. case of COVID-19 on January 21, more than nine weeks ago. Although better than nothing, the ventilator-production order might have come too late to save the lives that could have been saved if the ventilator count were higher to date.
The United States now has more confirmed infections than any other country on the planet, with no end in sight. Supply-chain intermediaries are capitalizing on the crisis, gouging prices and forcing states and hospitals to compete with one another for protective material and other lifesaving medical supplies. The federal stockpile of equipment is insufficient, with states and health-care professionals complaining that the Trump administration is not delivering promised supplies. Calls from Congress that Trump use the DPA to hasten the production and purchase of millions of N95 masks and other needed equipment for medical personnel and broadly implement a national, coordinated system of disseminating supplies have so far gone unheeded. Beyond approving the GM order, the most Trump has done on this front is to delegate DPA authority to Alex Azar, the secretary of health and human services—presumably for use at some point—and put Peter Navarro, an economic adviser who currently heads an obscure trade-policy office, in charge of government-business coordination.
On January 31, Azar issued a statement that legally triggered the Public Health Service Act, a 1944 statute that affords the president broad power to mandate and enforce nationwide quarantines. Trump hasn’t used that power either, despite irrefutable evidence that minimizing physical contact is crucial to slowing the virus, as countries like China, Germany, and South Korea have shown by invoking such measures to “flatten” their curves. He threatened Saturday to impose a quarantine in the New York City area, but did not follow through.
Even as Trump has largely declined to use his unitary-executive authority to combat COVID-19, he remains stout in his defense of perceived constitutional powers to ignore Congress and thus thwart his own accountability to the public. In a rare stroke of bipartisanship, Congress passed and Trump signed into law a much-needed $2 trillion relief bill for coronavirus aid. The statute provides $500 billion to the Treasury Department for loans and loan guarantees for states, municipalities, and eligible U.S. businesses. It also creates an Office of the Special Inspector General for Pandemic Recovery and a congressional oversight commission to review how federal agencies implement the program. The president has the power to appoint the special inspector general, who must file reports and coordinate efforts with Congress.
In his statement accompanying his signing of the bill into law, Trump noted that the relief law authorizes the special inspector general to “request information from other government agencies” and requires that person “to report to Congress ‘without delay’ any refusal of such a request that ‘in the judgment of the Special Inspector General’ is unreasonable.” He also noted that the statute conditions federal agencies’ spending or reallocation of funds on consultation with or approval of Congress. In his signing statement, Trump announced that “my administration will continue the practice of treating provisions like these as advisory and nonbinding.”
Although prior presidents have used signing statements in controversial ways—particularly during George W. Bush’s War on Terror—Trump’s contemptuous approach to any legislative or judicial oversight whatsoever should make even supporters of the unitary-executive theory shudder. Trump is calling himself a “wartime president” without acting as such. With billions of federal taxpayer dollars newly flooding into the administration for COVID-19 assistance, he is treating Congress as utterly impotent once lawmakers hand off massive powers to federal agencies—which, despite being placed within the president’s chain of command, were set up by Congress in the first place. A unitary executive cannot have it both ways—wielding entrenched and unaccountable power for the sake of self-preservation, but sloughing it off when it comes to protecting the nation from devastation.
Throughout Special Counsel Robert Mueller’s investigation and during the impeachment process, Trump’s legal team relied on notions of unlimited executive power to evade accountability. But now that the public needs a steady, powerful leader to steer us through this terrifying and deadly storm, Trump is telling state governors who are desperate for basic, lifesaving medical supplies that “you can get it yourself.”
One could argue, of course, that philosophical consistency is a frequent casualty of major crises across the political spectrum. Many Democratic officials and left-leaning commentators have savaged Trump both for his failure to mount a unified national effort against the coronavirus and dictate terms to private companies and, just this past weekend, for dangling the very opposite suggestion of a federally imposed, tri-state quarantine to slow the national spread of the virus from the New York area.
Yet the emergency powers that states have been begging Trump to deploy are not merely legal aspirations. Nor do they hinge on whether one accepts or rejects the unitary-executive theory. Congress has already specifically authorized presidents, in moments of national emergency, to take the kind of decisive steps that Trump has shown such reluctance to take now. Trump being Trump, he continues to exercise the powers of his office in self-interested ways, conditioning states’ access to federal help on obeisance to him personally. “It’s a two-way street” he told Fox News last Tuesday. “They have to treat us well, also. They can’t say, ‘Oh, gee, we should get this, we should get that.’” On Friday, he said he had instructed Vice President Mike Pence not to communicate with governors who have not been “appreciative” of the administration’s COVID-19 efforts. “Don’t call that woman in Michigan,” he said at a news conference regarding his directive to Pence. He was referring to Michigan Governor Gretchen Whitmer. That same Friday, she was dealing with an increase of 801 new cases in the state—the biggest one-day jump in the country so far. (The White House subsequently issued a disaster declaration for Michigan, making it eligible for more federal aid.)
As applied by Trump, therefore, the unitary-executive theory has produced the worst of both worlds: a would-be autocrat with absolute power who insists on complete obedience and retaliates if he doesn’t get it—while also blinking at the dire needs of the people he was elected to represent.
During the House Judiciary Committee’s proceedings on impeachment, the Stanford Law School professor Pamela Karlan spoke these words:
Imagine living in a part of Louisiana or Texas that’s prone to devastating hurricanes and flooding. What would you think if you lived there and your governor asked for a meeting with the president to discuss getting disaster aid that Congress has provided for? What would you think if that president said, “I would like you to do us a favor? I’ll meet with you, and send the disaster relief, once you brand my opponent a criminal.”
Wouldn’t you know in your gut that such a president has abused his office? That he’d betrayed the national interest, and that he was trying to corrupt the electoral process?
Heard today, these words are chilling.