Presidential Pandemic Powers: The President the Founders Gave Us for the Era of COVID-19

• Author: Haley Peterson Denler
• Position: J.D., Georgetown University Law Center, 2022; B.A., Brigham Young University, 2018
• Pages: 779-803

Presidential Pandemic Powers: The President the

Founders Gave Us for the Era of COVID-19

HALEY PETERSON DENLER*

ABSTRACT

In Federalist No. 47, James Madison warned, “The accumulation of all

powers, legislative, executive, and judiciary, in the same hands, whether of one,

a few, or many, and whether hereditary, self-appointed or elective, may justly

be pronounced the very definition of tyranny.”In 1793, only six years after the

ratification of the Constitution, yellow fever waged war in Philadelphia, the de

facto capital at the time. Then-President George Washington was concerned

about the balance of power between the presidency and Congress and wished to

avoid the appearance of a king, or even worse, a tyrant. He asked Madison for

advice as to whether he could call Congress to meet in a place outside of

Philadelphia. Madison took a strictly textualist approach: the President could

change the time, but not the place, of congressional meetings, regardless of the

emergency facing the nation’s leaders.

Almost 250 years later, the United States is facing the COVID-19 pandemic,

an emergency not unlike that faced by the first President, but concern for the

separation of powers and the avoidance of tyranny has seemingly evaporated.

On September 9, 2021, President Biden, in one of the broadest strokes of power

claimed by a U.S. President, announced a plan to mandate vaccination and test-

ing in private businesses with more than 100 employees. The original meaning

of Article II suggests such action may lack constitutional support; especially in

times of crisis, the President was expected to and still should keep within the

bounds of the Constitution’s explicitly delegated authority and allow Congress

to legislate in response to emergencies facing the nation. This Note will argue

that, in addition to the Supreme Court’s findings in National Federation of

Independent Business v. Department of Labor, the Biden Administration’s vac-

cine mandate goes beyond the scope of the original powers of the President, as

demonstrated by the early American Presidents’ responses to epidemics of their

day and the Youngstown framework of emergency powers.

TABLE OF CONTENTS

I. INTRODUCTION........................................ 780

* J.D., Georgetown University Law Center, 2022; B.A., Brigham Young University, 2018. I would

like to thank Professors Paul Clement, Lisa Blatt, and Matthew Rowen for their comments and guidance

on earlier versions of this Note during their Fall 2021 Separation of Powers Seminar. I also give my

thanks to the editors and staff of the Georgetown Journal of Law &Public Policy for their suggestions.

©2022, Haley Peterson Denler.

779

II. ORIGINAL POWERS OF THE PRESIDENT IN EMERGENCIES ......... 782

A. The Framers Rejected the Crown’s Prerogatives . . . . . . . . . . 782

B. Emergency Powers at the Founding Were Limited to Wartime 784

III. EARLY AMERICAN EPIDEMICS ............................ 788

A. General Washington (Pre-Constitution). . . . . . . . . . . . . . . . . 788

B. President Washington (Post-Constitution) . . . . . . . . . . . . . . . 789

1. 1793 Yellow Fever Outbreak . . . . . . . . . . . . . . . . . . . . . 789

2. An Act Relative to Quarantine . . . . . . . . . . . . . . . . . . . . 791

C. President Adams . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 791

D. President Jefferson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 792

E. President Madison. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 793

IV. PRESIDENT BIDEN’SVACCINATION MANDATE................. 795

A. President Biden’s Mandate is Not Within the OriginalPowers

ofthePresident .................................. 795

B. President Biden’s Mandate Also Falls Outside His Emergency

Powers Under Modern Jurisprudence . . . . . . . . . . . . . . . . . . 797

V. CONCLUSION ......................................... 802

I. INTRODUCTION

James Madison warned in Federalist No. 47,“[t]he accumulation of all

powers, legislative, executive, andjudiciary, in the same hands, whether of one, a

few, or many, and whether hereditary, self-appointed, or elective, may justly be

pronounced the very definition of tyranny.”

1

In 1793, yellow fever waged war on Philadelphia, the de facto capital at

the time.

2

Then-President George Washington was extremely concerned about

the balance of power between the presidency and Congress and wished to avoid the

appearance of a king, or even worse, a tyrant. He asked James Madison for advice

on whether he could call Congress to meet in a place outside of Philadelphia.

1. THE FEDERALIST NO. 47, at 216 (James Madison) (Mary Carolyn Waldrep & Jim Miller eds.,

2014).

2. Sarah Pruitt, When the Yellow Fever Outbreak of 1793 Sent the Wealthy Fleeing Philadelphia,

HISTORY (Jun. 11, 2020), history.com/news/yellow-fever-outbreak-philadelphia [https://perma.cc/

V2U5-ZKT2]; Yellow Fever Breaks Out in Philadelphia,H

ISTORY (Oct. 9, 2020), https://www.history.

com/this-day-in-history/yellow-fever-breaks-out-in-philadelphia [https://perma.cc/EM9Z-GADG].

780 THE GEORGETOWN JOURNAL OF LAW &PUBLIC POLICY [Vol. 20:779