Into The Abyss
At a recent press conference, the President said that he had “total power” to determine when the economy should be restarted. That statement prompted questions about the basis of his authority to do so, both by an outspoken governor and a “nasty” reporter representing a “failing Fake News” organization. In the last two days, however, the President has brought to our attention that there is an important distinction between the authority to act and the power to act. As Neal Katyal, a former Solicitor General, wrote in a New York Times Op-Ed article this week, there is no provision of the U.S. Constitution or statute authorizing the President to rescind a governor’s orders restricting business and social activity to combat a health emergency. Still the President has been trying to prove that he nevertheless does possess certain powers which might enable him to achieve that end.
It is no secret that he has begun orchestrating a “grass roots” movement to convince governors to relax their prior orders. In addition to talking up relaxation of stay-at-home restrictions in his daily press conferences and asserting that at least 20 states should be in a position to do so by the end of this month, he has instigated a series of protest rallies that have taken place in at least nine state capitols and has tweeted to residents of three of those states that they should LIBERATE their state. These rallies, like the Tea Party rallies that took place in 2008-9 preventing President Obama from enacting a more vigorous economic recovery program, are far from spontaneous outburst of frustrated citizens. They are well-planned and well-financed events staged by well-funded organizations that support and take their cues from the President. The protesters at these rallies wore MAGA hats and Trump T-shirts and carried placards complaining that their civil liberties were being violated by their governors’ “stay-at-home” orders. To them, it isn’t a question of the number of lives that would be put at risk by prematurely restarting their state’s economy or even whether doing so would be most beneficial to the state’s economy in the long run. For them, it is simply that they resent being confined to their quarters by a government whose next move may be to take away their guns. By mobilizing these individuals, the President is trying to achieve that which he has no express Constitutional or statutory authority to accomplish.
The President’s decision to “authorize” the governors to make the decisions to restart the economies of their respective states was hardly an act of munificence. If things go wrong (and based upon the President’s past help that’s not an unlikely possibility), the governors will be easy scapegoats for the resulting debacle. However, if they are indeed lucky and are successful in both taming the virus and salvaging the national economy, the President has a strategy for claiming credit. That strategy is built around his new three-phase guidelines (smartly printed in red, white and blue) for governor’s to restart their state’s economies. Unfortunately, those guidelines are premised on each state’s having developed the capacity to detect and trace those infected with the virus, a virtual impossibility for the next two months. It reminds me of my professor in first year economics starting his class by saying “assume perfect competition.” While assuming away an over-riding factor is acceptable as a teaching technique, it is a very bad basis for constructing a governing strategy.
Perhaps the biggest flaw in the President’s Guidelines is the complete absence of any recognition that we still know little about the virus or the extent to which it has already infected our population. In short, the President is not only asking, but pressuring, the nation’s governors to proceed in the absence of information that is absolutely critical to accomplishing their mission. Just picture General Eisenhower giving instructions to a battalion commander on D-Day.
“Eisenhower: Colonel, here is a map of Normandy. I want you to lead your troops along the roads I have marked to the town of St. Mere Eglese where you are to secure the town and LIBERATE its citizens.
Colonel: Yes, Sir. Do you know the strength and location of the Nazi forces in the area?
Eisenhower: No, but you will soon learn that when your troops start taking casualties.”
In case you haven’t noticed, outside of the number of individuals tested for the virus (about 3.4 million), the numbers of confirmed cases of the virus (approximately 740,000) and the deaths attributed to it (almost 40,000), neither the President nor his Coronavirus Task Force has provided any information as to the percentage of the U.S. population that has been infected by the virus or the percentage that needs to be tested as a requisite to reopening the economy. Presumably, this is a mere detail that the states should figure out on their own. What is more disconcerting is that the federal government has shown little interest in even assembling this data. As a result, the data that is currently available is woefully incomplete and inadequate for the nation’s governors to make decisions that could affect thousands of lives.
Specifically, in order to determine the percentage of individuals that need to be tested so their economies can be safely reopened our governors need to know: (1) what percentage of the population is already infected, (2) what percentage of the population is asymptomatic; (3) are individuals who have survived the virus immune to it; (4) what are the ways in which the disease can be transmitted; and (5) what measures are required to interdict each of those methods of transmission. These are not issues that are affected by local conditions; these are issues that are common to all states which is why they are issues for the federal government and not matters to be left to the states that are already struggling on limited budgets to fight the virus.
Just knowing how much additional testing is required is only the first step. Contrary to the President’s assertions, most states currently lack both testing equipment and the supply of reagents needed to process test samples. This is a supply chain problem which the administration has simply passed on to the states so they can bid against each other for their critically needed supplies. As New York’s Governor Cuomo (not so diplomatically) put it, “The President has passed the buck (to the states) without passing the bucks.”
This brings us to another problem; namely that the states have limited resources and are required by law to operate on a balanced budget, a total impossibility when their costs are going through the roof and their tax revenues are rapidly dwindling because of the drying up of economic activity. While Democrats are pressing to have the federal government provide billions of dollars to the states to help them through this crisis, so far the Trump administration has resisted these calls.
Even assuming that the states are able to determine when would be the optimum time to restart their respective economies, I’m having real difficulty seeing how they will be able to resist the political and economic pressures being placed upon them to do so before they are in a position to prevent the virus from resurging. In short, rather than helping the states mount an effective campaign to fend off the virus until a cure can be devised and made available, the Trump administration has actually been compounding the difficulty of their tasks.
All of this leaves me with the question: Why is the Trump administration doing this? The starting point has to be Trump’s overwhelming motivation; namely, to get himself re-elected. In fact, it’s pretty clear that little else matters to him. Even so, one has to wonder what is the strategy behind his trying to force the states to prematurely reopen their economies. My only answer is that the President is more fearful of the political fall-out from a devastated economy than from tens of thousands of unnecessary deaths. This is certainly consistent with his refusal to do anything about gun violence which annually claims roughly 30,000 deaths. Besides, he has a good chance of successfully blaming those deaths on China (which gave birth to the virus) and the W.H.O. (which was slow to sound the alarm warning against the coming pandemic), not to mention the nation’s governors to whom he delegated the responsibility for deciding when and how to proceed.
On the other hand, for the past three years he has been taking credit for a booming economy and stock market, making it just a little embarrassing to be the President who presided over the worst economic collapse since the Great Depression. A devastated economy will certainly not sit well with the members of his base who flocked to him as the successful businessman who was going to drain the swamp and reverse three decades of declining economic fortunes for average Americans. Nor will it sit well with the members of his donor base who have depended on him to deliver economic growth that will translate into outsize year-end bonuses. If things don’t get better fast, they may not even feel in a position to make sizable campaign contributions in the Fall. Even worse, they might even reluctantly conclude that they actually do better under a Democratic administration. God forbid. Perhaps most importantly, the President who tends to shoot for the moon, using borrowed money, in his own business ventures may find himself again at the mercy of his creditors as he did in the 1990s, but this time without his father to bail him out.