Many new books are appearing drawing various lessons from the COVID-19 pandemic. Conspicuously absent, however, is any analysis of how weaknesses in U.S. law allowed COVID-19 to become the dominant issue in the 2020 presidential election.
Whether or not one believes that the 2020 presidential election was tainted by fraud, Biden political adviser Anita Dunn was clearly correct when she said that “COVID is the best thing that ever happened to him [Biden].” Prior to COVID, Trump appeared to be a shoo-in for re-election. Even CNN concedes that voters’ perceptions that Trump had mishandled COVID resulted in Biden becoming president. The resulting chaos in our economy, open borders, and our perceived weakness internationally that invites aggressive actions by China and Russia were all predictable based on Biden’s record. Biden ran for president from his basement by arguing that Donald Trump was personally responsible for every single death from COVID-19.
Some of this is Trump’s fault. As a former CEO and reality TV star, Trump could not resist the temptation to go on live TV every day at 6 p.m. for weeks to show that he was “in charge.” By doing so, he owned the COVID pandemic in the public mind.
Any time a president goes on live TV unscripted, there is a risk of a slip of the tongue. Trump never actually recommended drinking bleach to prevent or treat COVID, but the false statement that he had done so was repeated so often — including by both Biden and then-New York Gov. Andrew Cuomo — that many other sensible people actually believe that Trump made that idiotic suggestion. Biden supporters even posted yard signs saying, “He Won’t Put Bleach In You.” (READ MORE: Joe Biden and the Fine Art of Political Lying)
A century after the creation of the administrative state, it is still unclear whether the president has the authority to overrule individual decisions delegated to administrative agencies by Congress.
More experienced politicians, including Eisenhower with polio, George W. Bush with HIV, Obama with Ebola, and, yes, Biden with COVID, have been wiser to put experts in charge as the public face of the government’s response. This mistake wasn’t caused by a lack of planning. The official national plan for dealing with a pandemic under the 2006 Pandemic Preparedness Act called for putting the Assistant Secretary for Pandemic Preparedness and Response of the Department of Health and Human Services in charge of the government-wide response. He was a well-qualified career expert, having spent 20 years as an Air Force physician, then was staff director of a subcommittee on bioterrorism in the Senate, director of biodefense on Homeland Security Council, and a special assistant to the president. Trump took over personally when he probably should have left designing the response to the experts under his general supervision.
The underlying problem is that we have two competing governments in America today — an “administrative state” of career government officials like Dr. Anthony Fauci and another of elected politicians like Donald Trump — but the power relationship between the two is unclear. A century after the creation of the administrative state, it is still unclear whether the president has the authority to overrule individual decisions delegated to administrative agencies by Congress.
There were at least two crucial moments when decisive actions by then-President Trump might have resulted in a different outcome. In both instances, he hesitated to act because his authority to act as president was unclear under existing law.
The first was in not postponing the 2020 presidential election. Trump thought about doing so, but the reactions were uniformly hostile. He backed off because his legal authority was unclear and acting on an ad hoc basis when he was behind in the polls would have appeared self-serving.
Unlike many other advanced countries such as the UK and Germany, our law does not give the chief executive pre-existing authority to postpone elections for a limited time in the face of a national crisis or set up a standard by which the legitimacy of such an action can be tested in the courts. Many localities in the U.S. do provide such authority. For example, in 2001, the New York City mayoral primary was postponed due to the 9/11 attacks, but no one contended that was the first step toward dictatorship.
The second fateful decision was the decision by the administrative state to keep secret the existence of effective vaccines until one week after the election. As early as July 2020, four months prior to the November 7 election, an article in the online version of a scientific journal reported that the Moderna vaccine had been shown to be safe and effective against COVID in small-scale trials. Based on similar small trials, China and Russia got their vaccines out months before ours because they were more concerned about preventing the spread of the disease than the risk of side effects. Between July and November, while our FDA required additional studies to look for side effects, which turned out to be either nonexistent or minor, thousands of people died from COVID.
Again, President Trump thought about ordering the FDA to get the vaccines out earlier — or at least put out the word that effective vaccines were just around the corner prior to the election. But he hesitated to act because his authority to overrule the FDA was unclear and doing so would have produced a legal, and perhaps even a constitutional, crisis. Again, a law passed in advance could have clarified the power of the president to overrule the FDA in a crisis.
Lincoln famously said that “A house divided against itself cannot stand.” Today our government is a house divided against itself as it is unclear whether the permanent bureaucracy or the president is running the show. This problem is exacerbated when a president — usually a Republican — is unpopular with the career bureaucracy and they do everything within their power to undermine him. They often view themselves as the permanent government and elected officials as mere interlopers because the careerists serve without term limits and are very difficult to fire.
Scholars as far back as Tocqueville have noted the multiplicity of competing power centers in the United States. During normal times, our separation of powers serves as a bulwark against tyranny. But it does not serve us well in a national crisis like COVID-19 when decisive actions are required.
The defining legal issue of our times is the relationship between the administrative state and democratically elected politicians. We should learn from COVID and enact a statute giving the president clear authority to overrule the bureaucracy as necessary during times of national crisis.
A longer version of this article was prepared with financial support from the C. Boyden Gray Center for the Study of the Administrative State of the Antonin Scalia Law School of George Mason University for a roundtable on lessons learned from COVID-19. The longer version is available here.