(Bloomberg Opinion) — As everyone but President Donald Trump seems to understand, the Constitution doesn’t give the president any inherent authority to shut down or open up the economy in an emergency like the coronavirus pandemic. But Congress could lawfully give that authority to the executive branch.
And there’s good reason to think that Congress should do exactly that, not for Trump, who has shown himself to be entirely unworthy of congressional trust, but for future presidents, who will almost certainly be better.
A truly national crisis in fact demands a truly national response. That response should be centralized and based on expertise, not partisanship. The patchwork of coronavirus responses that we’ve seen across the states has been harmful and irrational.
As soon as this crisis is over, we need new legislation that will guide future executives — legislation that will both empower future presidents to act decisively and also constrain them so that they must act on the basis of reasoned, expert judgment, not political gain.
Start with the empowerment part. The Constitution gives Congress the power to regulate interstate commerce. Since the 1930s and 40s, the Supreme Court has interpreted that power very broadly, allowing Congress to enact legislation that affects even individual-level conduct that influences the economy more broadly. Nearly every federal law today that governs your daily life is derived from congresses so-called commerce power.
There is no doubt at all that a national pandemic profoundly affects interstate commerce. Congress therefore has the constitutional authority to pass laws that regulate conduct under pandemic circumstances. Congress could pass laws that shut down businesses or allow them to reopen. It could pass laws regulating interstate travel. And although Congress arguably lacks the power to shut down state-run school systems, Congress could find constitutionally legitimate ways to ensure that schools shut down during a crisis, such as by prohibiting nonessential movement and not exempting travel to school.
Congress not only has the constitutional authority to pass such laws, it also has the authority to confer decision-making power on the executive branch with regard to how such laws are implemented.
As for constraining the president’s power, Congress can’t just write the executive completely blank check. Even during the Great Depression, the Supreme Court, in a decision that wasn’t entirely partisan, held that a matter of constitutional doctrine, a congressional delegation of power to the executive must not be absolute, but must contain an “intelligible principle” for how the conferred power should be exercised.
That limitation is a good thing. As Trump’s conduct during the current pandemic has shown, some presidents can’t be trusted to act rationally or in the genuine public interest. Giving unfettered emergency power to the executive in emergencies is a recipe for disaster.
The right way for Congress to structure a conferral of emergency powers is to make laws that require the president to exercise emergency authority in a pandemic through executive branch officials who run federal agencies and departments and are themselves legally required to make decisions based on reasoned, expert judgment.
In effect, such laws would say that in a pandemic, the Centers for Disease Control or a similar federal agency would have the power to determine that a state of disease emergency exists and to take the steps necessary to control it. The laws passed by Congress should require every important decision made by the federal agency to be explained publicly in transparent, clear terms; to be based on considered, publicly-expressed expert judgment; and to exclude any considerations based on partisanship or electoral advantage. In turn, these decisions would be subject to expedited judicial review. The law could say that the court should defer to the agency’s factual findings and take account of the need for speed in an emergency, but should nevertheless rigorously scrutinize the agency’s decisions to make sure they are really based on expert judgment, not political motives.
There would be nothing constitutionally weird about this design. Most of the power that the executive branch exercises pursuant to congressional authorization is subject to the Administrative Procedure Act, which imposes roughly similar constraints of reasoned judgment and also permits judicial review. If Congress can give this kind of emergency power to the president, it can also direct him on how he must exercise it. Contrary to Trump’s apparent beliefs, power conferred specifically by Congress on the president is not in any way absolute.
It’s understandable that Trump’s critics, of whom I am one, might think that no president should be given emergency powers of the kind Trump himself would almost certainly try to abuse if he possessed them. Liberals who love federalism are a small class most of the time; but there’s nothing like an overreaching conservative president to swell their ranks.
Yet it would be a serious long-term mistake for liberals to reject strong, constrained presidential authority to address pandemics just because Trump’s performance has been so unfortunate. There is simply no good reason to think that, as a matter of design, a unified nation facing a truly national crisis should have 50 different responses instead of a single coordinated response. The working groups of governors announced on Monday are a fallback option, not a first preference. We shouldn’t have to reinvent multistate coordination in the middle of a crisis.
The Constitution provides a perfectly sound solution: congressional authorization of presidential authority subject to the constraints of expertise and reasoned judgment. We should be learning that lesson from this crisis, and preparing to avert the next one.
This column does not necessarily reflect the opinion of Bloomberg LP and its owners.
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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