Oftentimes in crisis or emergencies the power and reach of government increases at a cost to individual freedom. An emergency may call for exceptional measures — but by historical comparison the Trump administration has upended one of the most durable patterns of American politics: the centralization of power to the federal government during national emergencies.
In emergencies, power is usually transferred from Congress to the executive branch. This time, the federal response has rested on state, local government and private enterprise, with accompanying deregulation to allow private innovative solutions to emerge. The federal government provides leadership. The Trump ad min is tra tion has seized no new powers, and even though the Democrats have tried to push their own agenda, Congress has stayed involved with the administration on financial relief packages. Diversifying centers of authority to states and governors along the federalist tradition of America can provide resilience and strength in the face of emergencies. This is the route President Trump has followed.
A Bit of History
Through the twentieth century, Congress, by statute, delegated increasing amounts of emergency power to the President. For example, the 1917 Trading with the Enemy Act (TWEA) was an effort that allowed the President to declare a national emergency in times of peace and assume massive powers over both domestic and international transactions. In the global recession known as the Great Depression of 1929, newly-elected President Roosevelt asked Congress for "broad Executive power to wage a war against the emergency, as great as the power that would be given to me if we were in fact invaded by a foreign foe." Congress more or less acceded to his requests and by 1934, Roosevelt had used these extensive new powers to regulate among other things "every transaction in foreign exchange, transfer of credit between any banking institution within the United States and any banking institution outside of the United States."
After evaluating executive overreach in Vietnam and abuses of power in the mid-1970's, Congress increasingly focused on decreasing the power of its partner branch. But following the national emergency of 9/11 much of that power returned, when Congress amended the International Emergency Economic Powers Act (IEEPA) as part of the 2001 USA PATRIOT Act. This brought some of that lost authority back to the President at the request of the George W. Bush Administration. The Patriot Act expanded the government’s surveillance powers and the scope of some criminal laws and has become shorthand for government abuse and overreach.
Further, in 2010 the administrative state expanded again when the Dodd-Frank Wall Street Reform and Consumer Protection Act established a number of new government agencies tasked with overseeing the various components of the act and, by extension, various aspects of the financial system.
In dealing with the Covid-19 Emergency however, President Trump has resisted pressure to use the full power of his office to create new layers of bureaucracy or temporarily turn the private sector into an arm of the federal government via extensive use of the Defense Production Act. \Three initiatives below illustrate this decentralization.
Covid-19 Task Force
One of the first tasks of the Trump administration’s Covid-19 task force led by the vice-President, and sub-unit supply chain team led by Rear Adm. John Polowczyk and Jared Kushner, was delivering supplies across the country. They aimed to procure supplies of ventilators, test kits, and PPE (protective personal equipment) then distribute the goods directly, allocate them through the federal share of purchases or simply turn contracts over to states.
In determining need, Kushner and the supply-chain team required that governors and mayors report how much equipment they had at their disposal, what they can get their hands on independently, and where shortages and vulnerabilities were. Using a formula known as 40-40-20, the White House bought supplies, then provided coordination and leadership in allocating the goods. The first 20 percent is reserved for the federal government's Strategic National Stockpile. The task force directs where the next 40 percent goes, and the company selling the product gets to deliver the remaining 40 percent as it sees fit. Through Project Airbridge the Trump administration would underwrite the shipping costs for protective equipment produced by corporations, in exchange for the right to direct where that 60% of the goods go.
With this arrangement, the federal task force can reroute a shipment that is already on its way to a state, a city or a hospital when a more urgent hot spot lights up, while still leaving time to fill the need of the original destination’s order. The task force has the important power of "adjudication" as well, which in terms of a national emergency response protocol allows it to resolve disputes about where items go when there's a shortage.
Another feature of Project Airbridge is to transport raw materials and hurry along the manufacture of essential items. Using this initiative, the administration teamed with DuPont, of Wilmington Delaware, a global producer of personal protective equipment, including different suits made out of its patented Tyvek material to get PPE to front-line workers. Ordinarily the manufacturing process can take up to three months to ship material from its factory in Richmond Virginia to Vietnam, where it is sewn into body suits, and get it back. Project Airborne sped up this process chartering flights to reduce the round trip for 750,000 items to 10 days.
Hospitals Without Walls
Looking at how to help health facilities across America, the Centers for Medicare and Medicaid Services (CMS) administration and task force member, Seema Verma, announced a series of regulatory relief initiatives to provide the American health care system with maximum flexibility to care for COVID-19 patients and tackle the strain on capacity some hospitals will experience. One component, detailed on April 28th, is the Hospitals without Walls strategy.
Implemented under President Trump’s National Emergency Declaration, it to a large degree redefines what constitutes a hospital for the duration of the Covid-19 emergency.
Under normal CMS rules and regulations, hospital treatment has to occur within their buildings, but the high demands associated with hot spot surges in Covid-19 severely stresses capacity. This can cause long waits in the Emergency Department, and delays or postponement in diagnosis and treatment for other illnesses.
Under the new Hospitals without Walls rules, health care systems and hospitals can now establish temporary hospital treatment sites to expand their capacity and safely separate patients infected with COVID-19 from those who are not. This allows Medicare-enrolled hospital systems to use surgery centers or other health care settings to provide the patient care normally done in a hospital. Surgery centers can contract with their local hospital to pick up the over-spill of essential surgeries or treatments as part of the hospital or they can temporarily enroll and bill as a hospital.
A hospitals main facilities are thus preserved for Covid-19 patients while care is still given to other patients or those whose non-essential elective surgeries had been delayed in the early phases of the crisis.
The CMS plan also allows hospitals to deliver their services at other non-hospital buildings, so long as the location is approved by the state. That will include locations like college dormitories, hotels, and gymnasiums. According to Seema, “if such sites can safely be used to care for patients during this unprecedented time, federal regulations shouldn’t get in the way”. The reopening of America REQUIRES regular hospital services to resume and reassure non-Covid patients too.
The 3-Phrase Reopening
The White House’s 3-phase guidance on safely reopening, overwhelmingly devolves decision making to the states and governors. More recently, Trump said the federal government won’t extend its social-distancing guidelines when they expire at the end of April, citing the work of governors in their states.
The role for the federal government moving forward HHS Secretary and task force member Alex Azar said, is to “support every state and territory in reopening”. He says “CDC is deploying field teams tailored to the needs of states, as requested, to assist with contact tracing plans and advise on tools like digital technology and serologic testing, and disbursing funds to support hiring new workers and contractors for health departments and other needs on the ground”.
The task force will keep track of the best and worse practices that emerge at the state and local levels and provide leadership so awareness, learning and innovations can be shared. Conditions are not ubiquitous across the country so what works in one place may not work in another. For example, as of April 24th, New York continues to be the worst affected state, but consider the variegated stats: There have been more Covid-19 fatalities in Nassau County, New York, population 1.4 million than in all of California, population 40 million. There have been 989 fatalities in Westchester County, New York, but only 1 in Monroe County, Georgia. Population density in New York City is 27,000 per square mile, compared with 68 per square mile in Monroe County.
On an average day, New York has commuters crowding trains, tourists flooding the museums, diners swamping restaurants. No other American city has the same kind of crammed pedestrian life as New York. Restrictions should not be applied indiscriminately. It is no surprise much of America is losing patience with the idea of prolonging lock down conditions much further.
A policy which makes sense for Monroe County Georgia would be a nightmare in New York City. America is a huge country, and there are many different characteristics depending on where you are and what you are doing. Having a Washington bureaucrat decide when every restaurant, hair salon, cinema and zoo in America could open is inappropriate in such a diverse, varied country.
For the Trump administration, the principle of Federalism reigns supreme. Local conditions will guide reopening. So, while New York will likely be one of the last to loosen restrictions, some states, like Colorado began on April 27, where some retailers resumed business via curbside pickup. In-store sales can resume May 1 with social distancing. One-on-one personal services hair salons, tattoo shops, personal trainers, dog groomers, dental offices and other elective medical services will restart on May 1st.
A further consequence of federalism and the Constitutional principle of individual liberty, is that state legislators and Governors who have seen protests against prolonged restrictions are realizing that it is an error to try and define all things that are forbidden versus permitted in terms of what is essential. How can liquor stores and Marijuana retailers in Denver be allowed, but Easter Sunday Church services are not?
So, contrary to Democrats and media commentators who call for greater use of the Defense Production Act and a comprehensive national directed one size fit all plan, the people coming to the rescue in this emergency are Governors (but certainly not all of them!), Mayors, health care officials, epidemiologists and private enterprise. This is a very different kind of emergency response than we have seen in the last century.
Carol King received a first class BA (honors) in History and Politics from Stirling University, along with an exceptional commendation for a study on US public opinion and Foreign Policy. She also completed a year of study at University of London before taking up a Graduate Proctor Fellowship at Princeton University. She further completed a MPhil in American Politics at Dundee University. Aspiring to be a writer/commentator on American politics, she now writes for UncoverDC.
Twitter: @CarolKing561
