Leaders can use crises to push political agendas, some unrelated to the emergency cited, and executive power can expand substantially. That’s true historically, when unilateral changes might have been somewhat logical but still disturbing, from Lincoln’s suspension of habeas corpus to Roosevelt’s incarceration of Japanese Americans.
This spring, local governments struggle to comply with Open Meetings laws at a time of social distancing, states are closing businesses and limiting movement, and the Trump administration is trying to upend many federal policies and even laws. Extraordinary challenges may justify extraordinary responses, but how long will acts such as widespread de-regulation, neighborhood police checkpoints and prohibited religious gatherings last?
Besides FDR and Lincoln, past examples include Nazi’s exploiting the Reichstag fire and George W. Bush using 9-11 as a pretext to invade two countries and enable controversial programs of torture, surveillance and restricted detention of people.
Of various actions the Trump administration has taken in recent weeks, “the one that bothers me the most is Attorney General William Barr’s proposal which, in my opinion, is not understandable, but certainly is troubling,” says Peoria attorney Don Jackson, former president of the Illinois NAACP.
Barr’s provocative proposal to suspend constitutional guarantees met bipartisan outrage on Capitol Hill (conservative Republican Mike Lee said, “Over my dead body” and Senate Minority Leader Chuck Schumer said, “Hell no”), but it’s still alarming, Jackson says.
“His proposal violates our most basic understanding of the concept of due process of law,” he says. “Each defendant is considered to be innocent until proven guilty. Apparently, Barr has no concern over whether the individual is guilty or innocent, but is willing to incarcerate individuals charged with a criminal offense rather than releasing the individual on a court-ordered ‘notice to appear.’
“Barr’s proposal undoubtedly will impact the African American community nationwide the most,” Jackson adds. “During the COVID-19 pandemic, I would agree there may be circumstances which would require the judicial system to act on Barr’s suggestion, but only in extreme cases and/or emergencies.”
Besides domestic effects, foreign relations are being damaged, according to Karen Greenberg, director of the Center on National Security at Fordham Law School. In addition to the administration’s decision to withdraw from the “Open Skies” treaty with Russia to reduce the risk of accidental war (despite allies’ opposition), Greenberg said Trump antagonized China by calling COVID-19 the “Chinese virus,” and heightened tensions with Iran by launching attacks on pro-Iran forces in Iraq and stiffening economic sanctions that make coronavirus responses there harder.
“This historic COVID-19 pandemic has put national, state and local government officials in the new leadership role of issuing extraordinary orders to protect the public good,” says Brad McMillan, Director of the Institute for Principled Leadership in Public Service at Bradley University. “Most Americans are willing to support and follow these orders if they relate directly to curbing the spread of the virus. However, when the White House issues an order declining to reopen the enrollments in the Affordable Health Care Act under the guise that this would be a burden during this crisis, the use of such power becomes dubious. Similarly, when the EPA issues an order telling companies they no longer have to monitor water pollution during the COVID-19 pandemic, the use of such government power seems like an overreach.”
Declaring a national emergency on March 13, Trump invoked the Defense Production Act plus the Stafford Disaster Relief and Emergency Assistance Act, and the National Emergencies Act, granting Presidents many new powers such as deploying the military, freezing bank accounts and silencing broadcasters.
“In passing the Defense Production Act of 1950, Congress implicitly acknowledged that national crises demand executive leadership. Normal governmental processes might fall short of the challenge,” says Frank Mackaman, historian and archivist at the Dirksen Research Center in Pekin. “Seems like a safe assumption even 70 years later, given today’s political quagmire.
On the other hand, the Defense Production Act – which for years has been used mostly for military supplies – hasn’t been exercised to help provide medical supplies to fight the pandemic, except to force General Motors to make ventilators (which it had already announced it planned).
“Granting broad authority to the executive branch to regulate public life raises at least two issues,” Mackaman continues. “First, how to resolve the tension between public good and personal liberty. There is no bright line.
“Second, if in crisis we depend more on presidential leadership than on time-consuming institutional processes, what does his leadership require?” he adds. “Everyone has their own list. Mine includes curiosity (essential to critical thinking), humility (requiring self-awareness), decisiveness, empathy (including respect for opposing views), and trustworthiness. Future historians likely will decide our president fell well short of the mark.
“The president shares leadership with members of Congress even if the buck stops with him,” Mackaman says. “It saddens me when our leaders, in politics and elsewhere, exploit the coronavirus pandemic to promote agendas unrelated to the current challenge. Twenty-five million dollars for the Kennedy Center in D.C.? You must be kidding. Further evidence of failed leadership.”
The challenge may be for citizens themselves not to be stampeded into accepting bad decisions.
“During an emergency crisis unusual powers are given to government officials,” McMillan says. “Whether they use this newfound power prudently and in a limited, focused manner depends on the good judgment of the government official.”
Mackaman expresses optimism.
“I count some bright spots in the pandemic: vigorous leadership at state and local levels, a renewed sense of community, an appreciation for forward-thinking, perhaps even an adjustment of our public policy priorities,” Mackaman says. “There will come a calm after the storm. Some changes will endure. We will correct some over-reactions. There is a certain elasticity to the American experience after all. Old routines, some good, some not so good, will return. A return to normal, when that is possible, should rebalance the equation. We will be grateful for that.”