Emergency Powers, Real and Imagined: How President Trump Used and Failed to Use Presidential Authority in the Covid-19 Crisis

Emergency Powers, Real and Imagined: How

President Trump Used and Failed to Use

Presidential Authority in the COVID-19 Crisis

Elizabeth Goitein*

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

I. THE LEGAL FRAMEWORK FOR THE PRESIDENT’S EMERGENCY POWERS . . . . 28

II. COVID-19 AND THE PRESIDENT’S RESPONSE . . . . . . . . . . . . . . . . . . . . . . . 30

A. Immigration Measures Under Emergency and Pseudo-

Emergency Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

1. Travel Bans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

2. Border Closures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

a. CDC Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

b. DHS Orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

3. Quarantines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

B. Domestic Measures Under Emergency and Pseudo-Emergency

Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

1. Empty Threats . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

2. The Underused Powers . . . . . . . . . . . . . . . . . . . . . . . . . . 47

a. The Public Health Service Act and Related Laws (the

Federal Food, Drug, and Cosmetic Act and the PREP

Act)...................................... 48

b. The Stafford Act and the Social Security Act . . . . . . . 51

c. National Emergency Powers . . . . . . . . . . . . . . . . . . . 54

d. Defense Production Act. . . . . . . . . . . . . . . . . . . . . . . 55

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58

INTRODUCTION

President Trump is not shy when it comes to the use of emergency powers. He

had declared seven national emergencies before a real one—the COVID-19

pandemic—actually happened. His declaration of a national emergency to secure

border-wall funding that Congress had denied was widely perceived as an abuse

of power; it came at a time when illegal border crossings were near a 40-year

low, and was accompanied by the casual statement, “I didn’t need to do this, but

I’d rather do it much faster.”

1

His other declarations, a series of orders imposing

* Elizabeth Goitein co-directs the Liberty and National Security Program at the Brennan Center for

Justice at New York University School of Law. © 2020, Elizabeth Goitein.

1. Victor Lipman, Trump Declares National Emergency and Then Adds “I Didn’t Need to Do This,”

FORBES (Feb. 15, 2019, 1:19), https://perma.cc/P33U-KMZ2.

27

sanctions on foreign actors, largely f‌lew under the radar—a strong indicator that

no existential crises were afoot.

One might therefore have expected President Trump to deploy emergency

powers aggressively when a true emergency f‌inally came his way. His rhetoric

has certainly been true to form: he has described himself as a wartime president,

and he proclaimed that the powers of the president during an emergency are

“total.” He also has threatened to invoke a dizzying range of powers that he does

not actually have, sometimes in service of contradictory ends. And with respect

to one subset of emergency powers—those relating to immigration—he has

indeed taken full advantage of COVID-19 to deliver on longstanding promises to

dramatically reduce the f‌low of lawful immigrants into the United States.

When it comes to deploying emergency powers that would assist in disease

mitigation, however, President Trump has been restrained to a fault. His adminis-

tration declared a public health emergency in late January, but it was slow to

exercise the powers this declaration could have unlocked. As the stock markets

began to suffer, the president downplayed the crisis and delayed declaring a

national emergency or a Stafford Act emergency for several weeks. Eventually

he issued both declarations, followed by a series of executive orders purporting to

invoke the Defense Production Act. Once again, however, his administration’s

actual use of these authorities has been incongruously modest.

What explains the difference between the overweening rhetoric, on the one

hand, and the failure to fully exercise applicable emergency powers, on the other?

In some cases, the president’s public statements suggest a tension between his

penchant for power and a desire to avoid responsibility. In others, news reports

point to political calculations or lobbying by corporate interests. In still others,

the culprit appears to be administrative incompetence. Whatever the reasons,

however, one can rule out the explanation that emergency action isn’t justif‌ied by

facts on the ground. The emergency powers that provide additional federal

resources in public health crises were designed for precisely the type of circum-

stance we now face.

The fear that leaders will abuse emergency authorities to consolidate power

during real or f‌ictional crises rightly dominates the political and legal literature.

President Trump has validated these concerns with his immigration measures and

claims of total authority during the COVID-19 crisis. But his passivity on the cen-

tral public health issues raises a novel question: can a president also abuse emer-

gency powers by not using them?

I. THE LEGAL FRAMEWORK FOR THE PRESIDENT’S EMERGENCY POWERS

It is sometimes said that “necessity knows no law.”

2

The statement might have

some validity as a description of off‌icial behavior during crises, but not as a

description of our legal system. Like all of his powers, the president’s powers

2. See Roger Alford, “Necessity Knows No Law,” OPINIO JURIS (May 18, 2009), https://perma.cc/

TWH3-4S6L.

28 JOURNAL OF NATIONAL SECURITY LAW & POLICY [Vol. 11:27

during an emergency must come from the Constitution or from laws passed by

Congress.

The U.S. Constitution is an outlier among modern constitutions in that it con-

tains no provision for emergency rule.

3

It does include a handful of provisions

that could be characterized as crisis-response powers, but none of these appears

in Article II. Article I, for instance, assigns to Congress the authority to suspend

the writ of habeas corpus “when in Cases of Rebellion or Invasion the public

Safety may require it,”

4

and to “provide for calling forth the Militia to execute the

Laws of the Union, suppress Insurrections and repel Invasions.”

5

Although Article II confers no explicit emergency powers, there are implied

powers accompanying some of its express provisions. Most notably, the

Commander-in-Chief power entails the authority to defend the United States

against sudden attack, even without prior congressional authorization,

6

and to

manage the conduct of war. The Supreme Court has also asserted (somewhat con-

troversially) that the president is the “sole organ of the federal government in the

f‌ield of international relations,”

7

although the scope of this exclusive power in the

international-relations f‌ield remains unclear.

Broader claims that the president has inherent constitutional powers to do

whatever he or she considers necessary in an emergency have been soundly

rejected by the Supreme Court. The government advanced a version of this theory

to justify President Truman’s seizure of U.S. steel mills during the Korean War.

The Supreme Court invalidated the president’s action, and Justice Jackson, in his

famous concurrence, observed: “[T]he Constitution did not contemplate that the

title Commander in Chief of the Army and Navy will constitute him also

Commander in Chief of the country, its industries and its inhabitants.”

8

While the emergency powers available to the president under the Constitution

are thus quite limited, Congress has been generous in its delegation of emergency

powers to the president. Several laws give the president or other executive branch

off‌icials the power to issue emergency declarations in specif‌ied situations, which

in turn unlock resources and authorities as provided in the law. Notable examples

include the Public Health Service Act and the Stafford Act, discussed below.

In addition to these statutes, each of which constitutes a self-contained grant of

emergency authority, there are more than 120 statutory authorities that become

available to the president when he declares a “national emergency.” The proce-

dures for declaring a national emergency are set forth in the National

Emergencies Act, but the law includes no def‌inition of the term, leaving it to the

3. A review of current constitutions reveals that at least 178 countries’ constitutions have provisions

for emergency rule. See CONSTITUTE: THE WORLD’S CONSTITUTIONS TO READ, SEARCH, AND COMPARE,

(June 30, 2020), https://perma.cc/VK8R-P3C6.

4. U.S. CONST. art. I, § 9, cl. 2.

5. U.S. CONST. art. I, § 8, cl. 15.

6. See LOUIS FISHER, PRESIDENTIAL WAR POWER 8-10 (2d rev. ed. 2004).

7. United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319 (1936).

8. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 643-44 (1952) (Jackson, J., concurring)

(emphasis added).

2020] EMERGENCY POWERS, REAL AND IMAGINED 29