US presidency: how Trump has exploited the Covid-19 crisis and how he hasn’t

Michael Goldhaber, IBA US Correspondent

Elizabeth Goitein, Director of the Liberty & National Security Program at the Brennan Center for Justice, has long sounded the alarm over the executive’s vast emergency powers. Congress has let its post-Watergate restraints atrophy. And that leaves each President’s devotion to democracy as our main protection.

At least rhetorically, this President enjoys raising doubts about democracy. In a typical riff, at a pre-lockdown rally where he called the virus a Democratic hoax, he free- associated about his tenure as President: ‘Five years or nine years or 13 years. Or 18 years! 10 more years. Nah. Oh, they go crazy when you say it. When you say to them five more years, so it’s five, but you then say maybe nine, maybe 13, maybe 17, maybe 21, or not, maybe 21. Let’s do this. Let’s term-limit ourselves at 25 years. No more than 25 years.’ The crowd met the President’s joking-not-joking musings with cheers and applause.

Perhaps the President’s most antidemocratic action came in April and May, when he purged three important independent voices in his administration. Inspector General of the Intelligence Community Michael Atkinson had informed Congress of the Ukraine complaint that led to impeachment. Principal Deputy Inspector General of the Department of Health and Human Services' Office of Inspector General Christi Grimm had critiqued the President’s handling of the Covid-19 crisis. Principal Deputy Inspector General of the Department of Defense Glenn Fine was poised to oversee Covid-19 relief.

On signing the $2tn relief bill, the President vowed to disregard any oversight, because, he said, ‘I’ll be the oversight’. The House chairs protested that the President was ‘retaliating against [the Inspectors General] for telling the truth’ and ‘following the law’. Walter Shaub, who resigned as Director of the US Office of Government Ethics in 2017, tweeted grimly: ‘This is a late-stage move in an authoritarian coup against the rule of law.’

But Aziz Huq, Professor of Law at the University of Chicago Law School and co-author of How to Lose a Constitutional Democracy, has a more hopeful take. He sees increased pushback by members of the President’s own party, historically crucial in halting autocracy. Five Republican senators denounced the purge. When the press reported that the Justice Department was planning to ask Congress for the power to suspend all court proceedings and court rules, the libertarian Senator Mike Lee tweeted: ‘OVER MY DEAD BODY.’

After the President claimed ‘total’ authority to end state lockdowns, he was rebuked by at least three Republican members of Congress and a Republican governor. A group called Republicans for the Rule of Law even aired an advert on Fox News depicting the President wearing a crown, concluding: ‘No Mr President, you don't have total authority. You're a president, not a king.’ Uncharacteristically, the President swiftly abandoned his claim of total authority.

Despite the autocratic drift of the President’s rhetoric and personnel moves, the hallmark of his pandemic response has been passivity. Paradoxically, the President’s default lockdown strategy has been to fob off all responsibility onto the states, even as he undermines the governors on policy, and cheerleads the protests against them. Indeed, the President has primarily been attacked for failing to use federal powers during the crisis. The President has made scant use of the Defense Production Act, which allows him to commandeer civilian industries. He has failed to build national capacity in testing and contact tracing, to produce or procure medical and protective equipment, therapeutics and vaccines.

‘He has claimed these sweeping powers that include quarantining states, opening and shutting businesses, and the power to adjourn Congress,’ says Goitein. ‘At the same time that he’s claiming very sweeping powers, he's not using them. The reason is that he very much wants to pass the buck, because things might go south, and he doesn’t want to be held responsible coming into the election. Instead he’s blaming the governors. But I would not say that the situation is without danger, because part of blaming the governors is an effort to foment political resistance and even foment violence.’ 

Eric Posner of the University of Chicago Law School, the politically moderate author of The Executive Unbound and The Demagogue’s Playbook, makes a similar observation. ‘I'm optimistic that our democracy will survive this crisis,’ he argues. ‘A notable fact about Trump is that he actually did not want to declare an emergency. He has dragged his feet, he has not exercised the powers he’s been given, and he seems to want to get the country back to economic status quo as soon as possible. He’s doing a very bad job but he’s not trying to destroy democracy. Contrast that with someone like Viktor Orbán in Hungary, who used the crisis to obtain dictatorial powers and once the pandemic is over will still have those powers. That didn't occur to Trump. He’s just governing badly.’

Short of threatening democracy, the President has gone beyond neglecting the health crisis to pursue unresponsive policies. ‘What you see throughout history is the exploitation of emergencies to push through other agendas,’ says Goitein. ‘The first question is, “Is this measure a public health measure to treat Covid-19?” If the answer is no, be very suspicious.’

A number of agencies have taken steps that seem to fail Goitein’s test dramatically. The Occupational Safety and Health Administration agency has granted permission to 15 vast poultry processing plants to speed up their assembly lines – and reduce the space between workers – even as meatpacking facilities have emerged as notorious Covid-19 hotspots nationwide. The Environmental Protection Agency has broadly and indefinitely stopped enforcing all routine rules – regardless of their effect on respiratory health – so long as the regulated company can argue that its failure was ‘caused’ by the health crisis.

A new Federal Labor Relations Authority rule makes it easier for bureaucrats to skip union dues. Far from helping those (unharmed) workers, the head of the American Federation of Government Employees says the move aims to impoverish a Democratic-leaning union in advance of November’s election.

The Department of Health and Human Services has sealed America’s land borders, ostensibly to protect the US from foreign germs. Yet when it pulled up the drawbridge, the US had 100 times as many confirmed cases as Mexico, and nearly 500 times as many as Central America’s Northern Triangle. Dozens of US deportees in Guatemala have contracted Covid. But never mind who’s infecting whom. The anti-immigration aide Stephen Miller reportedly wants the President to enforce border closure with the military under the 1807 Insurrection Act. Miller explained his thinking long before the pandemic gave him a pretext: ‘The powers of the President to protect our country are very substantial – and will not be questioned.’

In The Executive Unbound, written after 9/11 and the Great Recession, Posner posited that each crisis raises the baseline of executive power, by attuning the public to a fresh set of threats that only the President has the capacity to handle. As Congress showers the executive with trillions in lightly-specified relief funds, Posner sees powerful confirmation of his old thesis. But in the Trump era, he finds executive power to be newly troubling. The Demagogue’s Playbook reflects rising anxiety even among intellectuals allergic to alarmism. ‘If the public is capable of electing people like Donald Trump,’ asks Posner, ‘can the country tolerate a powerful, president-led, crisis-driven administrative state with weak institutional checks?’