The End of the Imperial Presidency

Democrats have long feared that in a national crisis, President Donald Trump would seize the chance to stretch his powers and sweep aside constitutional restraints. Yet as the pandemic rages, Trump may be creating an unanticipated legacy: By ceding some control to the states, he’s allowing the nation’s governors to reacquire executive muscle that has withered in the age of the imperial presidency.

However inadvertent, Trump may have set in motion a durable shift that positions states as more of a counterweight to the chief executive. Trump blustered at one point that Democratic governors who opposed him were committing “mutiny.” If so, the mutineers faced no reprisal—an incentive to act on their own again.

Trump’s posture has forced governors to confront a worldwide crisis they wouldn’t have imagined would be theirs to solve. They’ve had to venture into a chaotic global marketplace to hunt for masks and ventilators. They’ve forged alliances to figure out the smartest ways to reopen their economy and curb the virus’s spread. And they’re building systems to help them cope with future pandemics.

“If [Trump] feels more comfortable as a backup quarterback, then the governors will step up and be the front line,” Ned Lamont, the Democratic governor from Connecticut, told us. “I can’t tell a mayor, You be the front line and get your own personal protective equipment from China, and I’ll be the backup. If the buck stops here, it stops here.”

Democratic Governor Gretchen Whitmer of Michigan described how she felt when taking part in an early conference call with fellow governors, during which the White House “signaled” that state leaders would need to find safety and medical equipment on their own. “I realized we’d have to set up, in our state emergency-operations center, a procurement office that was going to compete with the world,” Whitmer told us. “That was a sobering moment.”

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White House Press Secretary Kayleigh McEnany said yesterday that Trump’s approach shows his commitment to federalism. But he may just want to redirect blame for a rolling catastrophe that could cost him reelection. “He’d rather have the governors impose quarantines than him, because he feels they’re then responsible for any economic problems that arise,” Saikrishna Prakash, a University of Virginia law professor and the author of the book The Living Presidency, told us.

Save for a brief post-Watergate pause, presidents in the modern era have steadily amassed power within the executive branch. Franklin D. Roosevelt’s New Deal, Dwight Eisenhower’s federal highway system, Ronald Reagan’s push for education standards that would later morph into the Common Core—all of these chipped away at states’ authority. Barack Obama’s Affordable Care Act extended the federal government’s reach by helping states fund the expansion of Medicaid programs. Amid the pandemic, Trump has sounded as if he’s prepared to push a president’s prerogatives even further, claiming at one point last month that his authority as president “is total.”

But in terms of actions, he “has basically stuck to things that are clearly within the federal jurisdiction,” said Christopher DeMuth, a distinguished fellow at the Hudson Institute who worked in both the Richard Nixon and Reagan administrations. “He’s used some emergency authorities, and he’s let governors and mayors take the lead. This is a sharp departure from the record in recent national emergencies.” After the September 11 terrorist attacks and the 2008 financial crisis, presidential power expanded. New executive agencies grew out of the wreckage, buttressing a model in which “the executive was king,” he told us.

Trump’s approach is “the worst of both worlds,” Bobby Chesney, a constitutional-law professor at the University of Texas at Austin, told us. “He’s using the rhetoric of an authoritarian without any of the China-style payout in terms of taking charge of the actual problem. Rhetorically, at least, he’s asserting almost preposterous levels of authority. Fortunately, he’s not following through. He’s all hat and no cattle.”

A natural role for the president would be to lead the worldwide hunt for medical supplies, leveraging the government’s vast purchasing power. Trump’s reluctance to serve as what he calls a “shipping clerk” has left some governors incredulous. “It’s absolutely maddening,” Governor Jay Inslee, a Washington Democrat, told us. “It’s like being in World War II and not getting the federal government to manufacture boots … It’s very difficult to understand. I liken it to Franklin Delano Roosevelt saying, Okay, Connecticut, you build the battleship and I’ll be there at the launch and break the bottle.”

At times, the Trump administration has seemed less like a partner than a competitor, commandeering supplies that governors had thought were coming their way. Shipments of gloves, masks, and ventilators bound for states have been rerouted to the federal government. Larry Hogan, Maryland’s Republican governor, said this week that thousands of coronavirus tests he obtained from South Korea are now under guard at “an undisclosed location,” in part because he doesn’t want them seized by the Trump administration.

The federal government “needs to be in or out,” Colorado Governor Jared Polis, a Democrat, told us. “If they’re out, that’s great; they’re not buying stuff out from under the states. If they’re in, they need to have a transparent process on how they’re making decisions on what states like Colorado will be getting.” (One senior White House official told us the administration has on occasion jumped to the front of the line when it comes to buying supplies, but only to ensure that states with more infections get material they need.)

Even Ohio Governor Mike DeWine, a Republican who told us he’s generally satisfied with the White House’s coordination on the crisis, has struggled to secure enough protective equipment for medical workers. “It’s the Wild West out there, trying to get PPE,” he said. At one point, the state received a shipment—from China by way of Los Angeles—of what DeWine thought would be 5 million N95 masks, only to have inspectors find that beneath a top layer of genuine masks the rest was, in DeWine’s words, “junk.” “There’s people who are just scam artists everywhere,” he told us.

In Trump’s absence, many governors have been eager to collaborate with one another instead. Earlier this week, for example, Colorado and Nevada joined California, Oregon, and Washington in a pact that aims to responsibly ease stay-at-home orders and reopen their states. Governors on the East Coast have established a similar alliance. “You have broader coalitions,” Raymond Scheppach, a former longtime executive director of the National Governors Association, told us. The governors “are getting into groupings so they won’t get pushed around by [Trump].”

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And they’re gaining new capabilities that could render them less reliant on a president who demands they show personal gratitude. “Our state has had to learn to navigate international supply chains,” Polis said. “We’ve pulled in people from the private sector, we’ve established strong relationships in China and South Korea, and we’ve been doing what we can to have supplies we need for Colorado.”

For Trump, elevating the governors may have already backfired. He can try to blame them for things going sour. But he’s also invited comparisons that have left his public profile diminished. A new poll shows that 64 percent of Americans think their governor is doing a better job handling the pandemic than Trump. Another poll showed approval for DeWine’s coronavirus-crisis management at 85 percent, versus 50 percent for Trump.

“People look at the states now as better able to get things done than the federal government,” DeWine said.

To Chesney, governors’ reassertion of their authority is simply “federalism in action.”

“This is a living illustration of what the Founders intended: preserving a substantial part of the true independence of the states,” he said.

Still, for many people living through the crisis, the political landscape seems pretty confused. Ordinary citizens don’t always know whose direction they should heed to keep themselves safe and their businesses afloat.

Uri Wurtzel co-owns an Atlanta bowling alley called Comet Pub and Lanes. He pronounced himself “taken aback” to see bowling alleys among the first businesses allowed to reopen in Georgia. He had shut his own place down in mid-March, “before there was any word from anybody in authority [in Georgia] about needing to close,” and he has no intention of reopening now. The risk of infection is too high, because bowlers exchange shoes and touch the same bowling balls.

Wurtzel told us he’ll think about reopening once he hears medical experts confirm that his state is out of the woods. He’s decided not to take his cues from politicians at all—not from mayors, or governors, or the president.