By Noah Feldman / Bloomberg Opinion
With every passing day, it becomes more and more apparent that the U.S. federal government’s response to Covid-19 has been appallingly slow and inadequate. A major reason is that the person at the apex of that institution, President Trump, dislikes and distrusts the expert bureaucrats who make the government actually function.
The laws that govern emergencies like the coronavirus pandemic give enormous power to the executive branch to direct and coordinate disaster response. These laws are not designed to empower the president personally. To the contrary, the whole point of the emergency laws is to empower government experts who know what must be done in a crisis; that is, career technocrats who work at agencies like the Centers for Disease Control and Prevention and the Federal Emergency Management Agency. Congress doesn’t trust the president in an emergency. It trusts the experts.
But Trump has spent his three-plus years in office attacking exactly these kinds of non-partisan career experts as a “swamp” that needs to be drained.
In an ordinary administration, the president would have responded to mounting pandemic concerns by designating a career technocrat — say, someone like the preeminent public health expert in the government, Dr. Anthony Fauci — to take charge of national response. Instead, Trump at first gave us no one; then Vice President Mike Pence, who foundered; and now, his son-in-law and preferred last-ditch trouble-shooter, Jared Kushner, who must try to impose some logical order on a situation that has already fallen into substantial disarray.
Why Trump is so negative about career authority and expertise is itself a very complicated question that would deserve a long essay of its own to unravel. But for our purposes, it should be enough to say that a big part of it is that Trump got elected by tapping into the populist sentiments of the kind found in tea party circles. The tea party worldview that Trump took on is profoundly anti-elitist. And experts are card-carrying members of the American elite.
Then, once Trump was in office, he encountered resistance from bureaucratic experts in the government as he tried to break the norms of executive branch practice on issue after issue. That consolidated his distrust of the very bureaucratic experts whom we now so desperately need to guide us through this pandemic. The people whom Trump disparages as the “deep state” are precisely and exactly the people on whom the system is designed to rely in an emergency.
As a constitutional matter, emergency powers come from Congress and are granted to the executive. They are not inherent executive powers of a kind that a president may have in wartime by virtue of being Commander in Chief. (Although Congress could, in theory, grant special emergency authority to the president himself, subject to it being exercised by rational, bureaucratic experts who work for him.)
Similarly, emergency laws vest executive decision-making authority in expert-run agencies, not the White House. Thus, a typical emergencies powers law says that when the president invokes an emergency — whether in a public health crisis or a natural disaster — the relevant agency is authorized to perform the emergency functions. Those agency decisions have to be based on rational decision making and have to be explained publicly, even if after the fact. These laws are supposed to avoid a situation where a president relies on his own instincts or advice from non-experts in his circle.
What makes the current state of affairs so tricky is that when an emergency is actually going on, it isn’t that easy for anyone to supervise how the executive branch is actually deploying its power. If the president ignores or circumvents his experts in the bureaucracy, it can’t realistically be stopped. A lawsuit would take too long. Congressional oversight will inevitably lag events. And the supervisory power of impeachment is off the table for this president for at least the rest of this presidential term.
Where that leaves us is only with public pressure and the constitutional oversight enabled by a free press. We should be keeping a close eye on how emergency powers are being used by the Trump administration. If Kushner can re-empower the experts who are supposed to be in charge, that would be a big win for the way government is supposed to work. And it would almost certainly save lives.
Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”
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