Reacting to the growing array of local and statewide shelter-in-place restrictions in response to the COVID-19 pandemic, President Donald Trump on Tuesday suggested that he wants the country “opened up and just raring to go by Easter.” The idea, as articulated by a number of conservative politicians and commentators, is that reopening schools and businesses sooner rather than later is necessary to mitigate the increasing damage the virus is inflicting upon the economy. Thus, the logic goes, Trump shouldn’t just desire such a result; he should use his statutory and constitutional authority to make it happen — and override these shelter-in-place rules as of a fixed date in early April.
There are two rather significant problems with this idea: First, the president has no authority to actually bring it about. And second, even if he could, it would be a terribly short-sighted move.
Taking the legal piece first, the president unquestionably has broad legal authorities to respond to a nationwide public health crisis like the COVID-19 pandemic. The Public Health Service Act allows the director of the Centers for Disease Control and Prevention (CDC) to quarantine any infected individual who either travels across state lines or who is likely to come into contact with someone so traveling — and authorizes a series of other coercive containment procedures to prevent the spread of diseases like COVID-19.
The Defense Production Act allows the heads of relevant federal agencies to jump to the front of the line when it comes to purchasing goods from private businesses — and even, in extreme cases, to compel manufacturers to shift their priorities to fulfill the government’s needs. And the Insurrection Act puts significant teeth into these (and other) federal authorities by authorizing the use of the military to enforce federal law in circumstances in which civilian authorities are unwilling or unable to do so — extra manpower, if you will, to ensure that the federal mandates are heeded.
One of the most remarkable features of the U.S. response to COVID-19 to date, however, has been the absence of aggressive action by the federal government, especially on the home front. There hasn’t been a single case yet in which the CDC has used its quarantine authority under the Public Health Service Act. Despite Trump’s much-ballyhooed signing of an executive order to trigger the Defense Production Act last week, no further coercive government actions have been taken since. And there are countless other smaller and more technical authorities available to the federal government in a public health emergency (which HHS Secretary Alex Azar declared back on January 31) that either haven’t been used at all, or that are just now being brought to bear — two months after the true contours of the crisis began to emerge.
Instead, the president has all-but ceded the field to local and state authorities — who have, in turn, exercised their own public health authority under the (widely varying) laws of the 50 states. The result has been a veritable smorgasbord of rules and restrictions, with some states like California adopting state-wide shelter-in-place orders, but others (including my home state of Texas) leaving it up to counties, cities and towns.
There are lots of reasons to criticize the feebleness of the federal government’s response to date. But the upshot, insofar as there is one, is that there’s very little that the federal government could stop doing that would thwart these local and state school and business closures. Simply put, there are no existing legal authorities that would allow Trump to order state or local governments to reopen schools and private businesses — or to otherwise get the country “opened up and raring to go.” At most, Trump could order the federal workforce back to its offices, but even that move would be toothless in jurisdictions with small federal workforces — and would likely only exempt essential federal employees from local and state travel restrictions. And although Congress could hypothetically pass a statute under its power to regulate interstate commerce that applied to larger businesses, there’s just no way that’s happening anytime soon.
Ultimately, if the president has any power here, it is the power of persuasion — which will understandably vary somewhat as between jurisdictions in which he is more and less popular. But even in those jurisdictions that might be inclined to voluntarily follow the president’s lead, there are two independently compelling reasons why doing so could be a catastrophically short-sighted move.
If the president has any power here, it is the power of persuasion — which will understandably vary somewhat as between jurisdictions in which he is more and less popular.
First, going back to business as usual without widespread access to testing means that countless individuals who are already infected will come into close contact with individuals who aren’t yet — the dangerous “community spread” that social distancing is intended to forestall. It would be one thing if only individuals who tested negative were allowed back into schools or workplaces, but there is no evidence that we’ll have the capability to implement such universal testing anytime soon. This will not only happen in the workplace, but on the public transportation many use to get to work; and in schools across the country. Instead of flattening the curve, we will dramatically sharpen it — with all of the horrifying consequences that follow, including overwhelming our health care system and, ultimately, resulting in a far higher total number of deaths.
Remarkably, the clear risk of far more deaths hasn’t been enough to deter some politicians — like Dan Patrick, the lieutenant governor of Texas, who brazenly suggested that many of those likely to die in an unchecked pandemic would do so willingly in the interest of saving the economy for their descendants.
But even for those to whom a million deaths is only a statistic, there’s a second problem with this approach: It won’t actually work. If the whole goal of this plan is to jump-start the economy, imagine where we’ll be in six weeks if a substantial percentage of the workforce, freed from the tyranny of shelter-in-place orders, is infected with COVID-19. Many will be too sick to work; and many of those who aren’t will be too scared to work. At best, we’d end up in the same place we are now economically — only this time, we’d be in far more danger of having the U.S. health care system collapse, as well.
It’s right for all of us, Trump included, to aspire to get out of our homes and back to business as usual as soon as it’s safe to do so. But COVID-19 is going to have a lot to say about when that’s going to be, regardless of what we might prefer. As such, we may be fortunate that there’s no existing legal authority for the president to force the issue. For now, it’s going to remain up to our mayors and governors.