Who has the Power?

Talk about your ironic twists of fate.  We may soon see one national emergency clarify whether another national emergency is real.  That’s important.  

In the name of public health, governors and mayors have claimed extraordinary powers over citizens and abrogated Constitutional rights due to the threat of the Covid virus.  Our schools have been closed, our interactions with fellow citizens regulated, our economy destroyed, and our health system put on life support.  And overlaying it all, have been given rules to live by under the rubric of “Social Distancing.” Every citizen in the United States, now knows what that means.  Get too close to someone in the Grocery Store and you are liable to get yelled at.  

But then the death of a black man by a white police officer led to Days of mass protests in venues far and wide.  It also led to Nights of Looting, Arson and Mayhem in cities in every region of the Country.  As to the later, few events in recent history have reinforced the wisdom of the Framers in enacting the Second Amendment.  The Unilateral disarmament of the police over the last decade, coupled with local and state government’s unwillingness or inability to protect its citizens underline the prudence of our founders in preserving our ability to defend ourselves from marauding savages, be it on the frontier of the eighteenth century or in more modern urban environments.

That aside, these mass gatherings and actions were many things: what they were not were exercises in Social Distancing.  If preachy rhetoric about the unacceptable dangers of congregants praying together in a pew are true, and, so bad Freedom of Religion can be trashed, then in a few weeks our nation may be brought low by mass infections and thousands, maybe millions of deaths.  That’s what the “experts” told us. Guess we will just have to wait and see.

From a Constitutional perspective, a common issue has arisen in how government may respond to both emergencies. There have been claims of power to act by the President on the one hand contradicted by claims of power to act by the Governors of the States on the other hand.  

Who has the power?  A legitimate question. Is it the one, both or neither?  

The answers I have seen in mass media and legal journals have been unsatisfying.  For sure, the answers are all over the place because of the overlay of politics.  The studied lack of interest on behalf of the media in accurate reporting also contribute to the confusion.  But there is another reason.  And that is because the Constitutional lines of authority to act are blurred by our system of Federalism.  That’s intentional.  The Framers of the Constitution wanted it that way and decades of tinkering by Presidents and the Supreme Court have fogged the lines of authority even further.  Why?  

Federalism is about Power.  Federalism is about the danger of too much power in too few hands.  And Federalism is about the intentional dilution of that power by dividing it among different levels of government.  

After the Revolution, our country’s first governmental system was not based on our revered Constitution. Rather it was organized under Articles of Confederation.  (Our first Confederacy!).  

While the States had fought together and thrown off the yoke of the Crown together, they had their own parochial interests and did not want to cede their power to other States much less to a Central Government.   Under the Articles of Confederation, the Federal government had no power to raise revenue and States even had their own standing armies and navies.  Ironically it was an insurrection of sorts, Shay’s rebellion, that made it apparent that a weak central government that was powerless even before a bunch of angry farmers had to be replaced.   

The Articles were cast aside, and a Constitution was drafted and submitted to the States for ratification.  The Bill of Rights followed closely thereafter. 

As the Constitution was drafted, there were still strong interests in maintaining the authority in the States as well as a general distrust of the power of centralized government born of the experiences and learning of the Framers.  In a sense while the Framers created a central government powerful enough to survive the challenges posed by foreign powers as well as conquering the Frontier, their innate distrust of power led them to dilute it in two distinct ways.  

The first is Horizontal.  There is a Separation of Powers between the Executive, Legislative and Judicial branches. And within the distribution of those powers, the Framers incorporated Checks and Balances to dilute the individual powers even more.  (See previous posts.)

The other way power was diluted was along a vertical axis; a division of powers between the Federal government and the States.   While we naturally think of a top down chain of command, that is not how it works in our system adhering to Federalist principles.  

The Tenth Amendment, provides, “The Powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the People.”

The Federal government is, therefore, a government of Delegated Powers.  It has only those powers delegated to it by the Constitution.  All others are retained by the States or, and (this sometimes is glossed over), the People.  There is nothing in the Constitution, for example, that delegates to the Federal government power over public health issues.  Tradition, it is said, left matters of public health to the States. Problem is, that has not the been the practice either as to health issues or other issues. The lines have been blurred.  

 Another National Emergency, the Great Depression was the major event in history that removed many issues from strictly State control and made them Federal.  

During the Depression, the country was teetering, about to fall into a socialist abyss when a fresh, “can do”, populist President was elected.  Franklin Roosevelt. 

He started like wildfire, putting forward new programs to get the government and economy going again. Problem was the programs assumed powers the federal government did not have. And an old guard on the Supreme Court kept striking them down. And the Tenth Amendment was repeatedly relied upon.

In just a few months, The Court found over a half dozen of Roosevelt’s programs unconstitutional.  In private he accused the Supreme Court of adopting a “horse-and-buggy definition of interstate commerce.” And it appeared his new Social Security and National Labor Relations Acts would soon suffer the same fate.

Roosevelt reacted. He came up with a plan.  A Court Packing Plan.  Within two months of his second inauguration, he struck.  In a surprise move he asked Congress to authorize him to appoint a new justice to the Federal Courts for every justice over the age of seventy.  The average age of the Justices was seventy-one.  His plan would give him six new Supreme Court appointments and over forty new lower court Justices. 

The results of the Court Packing Scheme and what commentators called the “Switch in Time that saved Nine” are noteworthy from a constitutional perspective as well as the impact the proposal had on the decisions of the Supreme Court and traditional Federalism.

Regardless of later revisionist history, it was clear that the Supreme Court and at least some justices switched how they were ruling out of political expediency.   They sensed that they had gotten severely out of step with the Public and a President sent to the Washington to get things done.  And in this confrontation with the Executive Branch, they saw they were going to ultimately lose.  They switched their rulings to save their institution from change.

From that point forward, no other New Deal program was overturned by the Supreme Court.

And for the next sixty years the Supreme Court never once struck down an expansion of federal power into areas traditionally reserved to the States.  Federal regulations and laws today govern almost every aspect of our lives in areas not specifically delegated to the Federal government, including health.  

I have previously posted about the extraordinary powers of the President in an emergency.  Probably the two most famous examples are Lincoln’s suspension of habeas corpus during the Civil War and Roosevelt’s Internment of American Citizens of Japanese descent during the second World War.  

If the Covid virus is indeed the existential threat it has been purported to be, there is little doubt that the President could assert power to act on the crisis over that of Governors. 

One further note.  There is a little referenced clause in the Constitution that is extremely relevant, given the unilateral actions of many Governors, including California’s.  This is the Guarantee Clause.  Article IV, Section 4 states: “The United States shall guarantee to every State in this Union a Republican Form of Government . . . .” 

One thing is clear Governor’s taking it upon themselves to suspend civil liberties and govern by fiat, is not the exercise of a Republican form of government.  A Republican form of government may not require two houses in the legislature, but it does require a legislature. Governor’s don’t get to ignore their legislatures in propounding laws.

The United States, in the form of Presidential action has the power act to require the States return to a Republican form of government. 

So far both sides have avoided a direct conflict. As a recovering politician of sorts, I would ordinarily say that is good.  But though we don’t want to admit it, these two emergencies have put our nation is on its knees.  The longer that goes on the more we are apt to welcome decisive federal action whether it fits with tradition or not.