How Trump Amassed Power Battling Coronavirus Pandemic
By Masood Farivar April 08, 2020
In a matter of weeks, U.S. President Donald Trump has assumed extraordinary power and influence at a time of national crisis.
In the fight against COVID-19, Trump has declared a national emergency that has enabled him to deploy military hospital ships to New York and Los Angeles, force carmakers to manufacture ventilators and relax vaccination and treatment regulations.
These and other steps have been hailed as critical public health measures, but they have come with a cost to civil liberties and democratic governance.
After years of frustration in blocking illegal immigration from Mexico and Central America, the administration now has the power to arrest and immediately deport undocumented immigrants based on the need to protect public health.
And in a signal that his administration can spend trillions of dollars as it sees fit to respond to the coronavirus crisis with diminished oversight from Congress or government watchdogs, Trump is waging an assault on a network of federal inspectors general to weaken their investigative clout and mandate.
Kimberly Wehle, a visiting professor of law at American University in Washington, D.C., said Trump's recent firings of two inspectors general appear to be an attempt to "consolidate power" during a national emergency.
"This is a serious affront to the rule of law and an accountable government," Wehle said. "The IGs exist to protect the public from fraud, waste and abuse."
Conservative constitutional scholars say Trump has carefully avoided invoking any inherent constitutional authority in confronting the pandemic.
Saikrishna Prakash, a constitutional law professor at the University of Virginia School of Law, said Trump has taken "a very traditional conception" of executive power, relying largely on powers given to him by Congress.
"He's not stretching and straining, as far as I can tell, to read the Constitution as if it granted him a whole host of authorities," Prakash said.
To be sure, as extraordinary as they are, the Trump administration's actions pale by comparison to the draconian steps taken by some governments around the world.
In Hungary, nominally a European democracy, the prime minister now rules by decree, thanks to a recent act of Parliament passed recently in the name of combating the lethal virus.
In Britain, the government has been given the power to shut down the borders and detain people suspected of being infected with the virus.
While Trump has thus far resisted calls for a national lockdown and other extreme measures, he has invoked virtually every emergency tool provided by Congress. Among them, the National Emergencies Act of 1976, which allows the president to declare a national emergency and make use of an additional 136 laws.
While these actions, along with measures taken by states, amount to a major expansion of executive power and have raised concerns about civil liberties, they have hardly been met with any resistance.
During a time of war or national peril, Americans traditionally have rallied round their president and allowed him to invoke extraordinary powers,such as President Abraham Lincoln suspending habeas corpus during the Civil War, and President Franklin D. Roosevelt sending Japanese Americans to internment camps during World War II.
Still, some warn that the president is using a moment of crisis to expand his power and advance controversial policies.
"COVID-19 is a significant threat to public health, but it should not be a significant threat to civil liberties or democratic government," said Nick Robinson, a researcher with the International Center for Not-for-Profit Law, which tracks civil liberties violations around the world.
Fear that the new powers might outlast the crisis are not unfounded.
After the 9/11 terrorist attacks on the United States, the George W. Bush administration assumed sweeping surveillance and other national security powers. It took Congress and the courts more than a decade to roll them back.
Nowhere has the effect of the administration's newly assumed emergency powers revealed itself more directly than immigration.
Last month, the administration restricted all nonessential traffic across the border with Mexico and Canada in the name of public health safety.
"Our nation's top health care officials are extremely concerned about the grave public health consequences of mass uncontrolled cross-border movement," Trump said.
While Congress rejected an administration proposal to end protections for asylum-seekers, the administration found another way to restrict asylum applications: a designation by the Centers for Disease Control and Prevention that unauthorized immigrants pose a "public health threat."
The designation has enabled the administration to abandon a long-standing policy of not returning asylum-seekers to countries where they might face persecution, according to Sarah Pierce of the Migration Policy Institute.
Now, virtually all Central American immigrants caught at the U.S. border are quickly "expelled" from the country without seeing an immigration officer, while growing numbers of unaccompanied children are turned away, where once they were handed over to a guardian or family member.
Pierce said the COVID-related border restrictions will be hard to roll back, even after the crisis is over.
"This is something that the administration has been working toward for so long," Pierce said. "I don't expect them to walk it back willingly."
John Malcolm of the conservative Heritage Foundation dismissed the notion that Trump's actions are politically motivated.
"I think there's no question that the president and every governor are trying to react to a very, very difficult circumstance," he said.
Indefinite detention power
In the lead-up to the enactment of a $2.2 trillion coronavirus relief package last month, the Justice Department asked Congress for emergency powers that alarmed many rights advocates.
One proposal would allow judges to halt court proceedings during an emergency. Another would allow the Bureau of Prisons to hold detainees indefinitely during an emergency.
Robinson said what made the proposed measure to hold detainees "dangerous" was its potential use in the future.
"That's extreme. It's dangerous. It's unnecessary," he said.
A Justice Department spokesperson said the proposed measure was part of "draft suggestions" made in response to a congressional request and that it did not "confer new powers upon the executive branch."
Challenging inspectors general
Long a critic of government watchdogs, Trump has used the crisis to exert authority over independent inspectors general appointed to ensure government transparency.
Last month, Trump vowed that his administration would not cooperate with a key transparency provision of a $2.2 trillion coronavirus relief package he signed into law.
"I do not understand, and my administration will not treat this provision, as permitting the [new coronavirus inspector general] to issue reports to Congress without the presidential supervision required by the Take Care Clause," Trump wrote in a signing document.
The U.S. Constitution's Take Care Clause states that the president "shall take care that the laws be faithfully executed."
Then in the span of four days, Trump ousted two inspectors general and publicly berated a third.
The first casualty was Michael Atkinson, the intelligence community watchdog who notified Congress about a whistleblower complaint that led to Trump's impeachment last year. Trump fired him last week.
This week, Trump sidelined Glenn Fine, the acting Pentagon inspector general tapped to chair a new coronavirus pandemic accountability committee.
Trump twice criticized the Department of Health and Human Services watchdog over a report that disclosed testing delays and shortages at hospitals. He called the report a "fake dossier" and questioned the inspector general's impartiality.
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