Yoo and Dhillon: federalism against coronavirus – who has the power to fight the pandemic?

Trump and Cuomo now buddy-buddy in response to coronavirus

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Under our constitutional system, the executive branch is primarily responsible for the fight against the coronavirus pandemic. But President Trump is not the only or even the most important executive currently. To prevent the spread of the coronavirus and its damage to our communities, state governors are the first line of attack.

Governors, including Gavin Newsom in California and Andrew Cuomo in New York reacted aggressively to the pandemic by ordering a virtual foreclosure of all residents, the closure of most businesses and the end of many economic activities – all with very little notice and no opportunity for a citizen affected to benefit from due process.

Of course, the federal government has an important role to play in the crisis.


Under our Constitution of limited national powers, the federal government can prohibit those who may have the coronavirus from entering the United States or crossing interstate borders. He can use his spending power to provide medical supplies and medicines. It can transfer money to states and cities or to private entities, such as hospitals, to help cover costs. It can help disseminate information about the disease, fund vaccine research and cure and coordinate the efforts of public and private institutions with advice on best practices.

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The President cannot do these things alone. Most disaster relief and health policies reach him through congressional delegations. Congress holds the strings of the federal purse and regulates interstate commerce.

Trump can declare a national emergency, as he did last week, which allows him to spend up to $ 50 billion in federal funds, but only because Congress has appropriated the funds. Trump can send masks, equipment and even military hospitals, but only because Congress bought and paid for them. Although conditions have worsened considerably, Congress has imposed procedures before a president can deploy the National Guard.

States, not Washington, D.C., have “police power,” which gives them the power to regulate virtually everything within their borders. As the Supreme Court has long recognized, the most convincing use of state power is to protect public health and safety.

The coronavirus, with its foreign origin and its rapid spread through our population, is precisely the type of crisis for which executive action is most suitable.

Under their police power, only states can impose broad quarantines, close institutions and businesses, and limit movement and movement. These powers are subject to constitutional limits, including due process and government decision-making clauses, although the outlines of these powers and limitations are put to the test. Now that the pandemic has affected all states, the ability of the federal government to allocate resources in one place – for example, in response to a hurricane or similar natural disaster – is of limited value. Only a state government, with all its staff and resources, can apply the measures necessary to stop the spread of the disease.


Within the federal government, the executive is primarily responsible for fighting the pandemic due to the unique characteristics of the executive. Explaining the need for a strong executive branch, Alexander Hamilton wrote in Federalist 70 that “energy in the executive is a main character in defining good government.” It is essential to protect the community from foreign attacks; it is no less essential to the proper application of laws. “

The coronavirus, with its foreign origin and its rapid spread through our population, is precisely the type of crisis for which executive action is most suitable.

To achieve this energy, Hamilton observed, the Constitution had to concentrate executive power in one person. “The decision, the activity, the secrecy and the sending will generally characterize the procedures of one man, to a much more eminent degree than the procedures of a greater number.” Hamilton argued. A 535-member legislature cannot respond as quickly or decisively to the coronavirus threat as a president. While one person can make more mistakes than a more deliberative group, some emergencies require government to act quickly rather than perfectly.


We have seen a number of state leaders act quickly in response to the coronavirus. But many state charters control the vast police powers of their governments by denying their chief executive the broad powers granted to the president by the federal constitution. They elect other officers of the executive (such as attorneys general), rather than allowing the governor to completely control the government. This is why governors would benefit from being transparent and deliberate in their decision-making during the current crisis. Constitutional limits should also encourage the reversal of extreme measures such as economic deadlocks when conditions allow.

Our declaration of independence recognized the principle of natural law that the consent of the governed is necessary for this government to have lasting legitimacy. The patience and support of the governed are certainly put to the test, and will ultimately decide the legitimacy of the measures taken to combat the coronavirus.


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