Hindsight’s 2020

Hindsight’s 2020

Throughout the coronavirus pandemic, strong executives emerged in the President and the country’s many Governors. While the situation required extraordinary measures, expanding executive powers evidence a worrying trend of unchecked, unilateral power. This piece calls for new legislation to automatically impose checks on emergency executive power after a brief interlude, as ‘emergencies’ must be viewed as transient, temporary phenomena.

Introduction

In the 1930s, following the startling rise of fascism in Europe, Sinclair Lewis published It Can’t Happen Here, a dystopian novel that envisioned a similar infection spreading to the United States.[1] Though the events of January 6, 2021—in which armed insurrectionists, goaded by President Trump,[2] stormed the United States’ Capitol—remain fresh in our minds still, Lewis’s text is aptly titled: fascism of the kind, seen decades ago, probably could not fall upon the United States. At the very least, to borrow from another great American author, it would require a prodigious “plot against America.”[3] What sets American governance apart from its ostensible twin in European democracies is what all civics students learn in primary school: the separation of powers and the “co-equal” forces of the branches upon one another are wholly unique to the American democratic system.[4] The most startling difference in governance between the two continents is the executive branch’s independence from the legislature. The American system better protects against the consolidation of power in one individual.[5] The Framers rightly recognized the tendency for a gluttonous executive to err towards monarchical power if left unchecked by a competing branch of government.[6] To combat this, James Madison wrote in Federalist 51:

“All the power surrendered by the people is submitted to the administration of a single government; and the usurpations are guarded against by a division of the government into distinct and separate departments. In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people”(emphasis added).”[7]

Such division of power is essential as no branch—let alone one individual—can undermine the rights of individuals in this republic.

However, a worrying trend is afoot. At present, through both judicial and legislative abdication of authority, the President wields tremendous power not directly given to the office by the Constitution.[8] In particular, the Executive’s exercise of emergency powers has become “virtually unchecked.”[9] For example, the Brennan Center for Justice has identified more than one hundred statutory powers that are bestowed to the President upon the declaration of a national emergency.[10] This is not a partisan issue as “administrations that span the partisan and ideological spectrum have been able to use emergency powers with little to no input from Congress.”[11]

This trend is not just seen at the federal level. The coronavirus pandemic has illustrated how governors in states across the nation have wielded their executive powers.[12]  Putting each governor’s pandemic policies aside, it is important to recognize that such emergency powers are a proxy for any extraordinary—and potentially dangerous—executive action. This deviation from the original intent of the constitutional structure has resulted in an executive that, with the right experience, desire, and intent, could further aggregate power in this branch to the detriment of the American rule of law.

As such, a “New War Powers Act” would protect against overreaching executives by combining two divergent but essential ideals: the necessity for quick decision-making, while preserving legislative oversight.[13] The New War Powers Act would aim to address a growing executive generally and curtailing emergency executive power specifically.

 I. Constitutional Origins

In seeking to run as radically counter to the king, from whose thumb they had only recently freed themselves, the Framers set up guardrails to isolate and check executive power.[14] In the Federalist Papers, James Madison, Alexander Hamilton, and John Jay described a system of governance that would preserve and protect the rights of the people against the King’s tyranny by dividing power among three branches of government.[15] For instance, in Federalist No. 69, Hamilton described some of these differences: while “the President of the United States would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office” the King of England, by contrast, is “inviolable” as there is “no punishment to which he can be subjected without involving the crisis of a national revolution.”[16] While the powers of the President and of the King may seem similar—both are the commander-in-chief of their respective armies and navies—the authority of the President would only be “nominally the same…but in substance much inferior to it.”[17] While power may still be “vested in a single magistrate” under the American system, the explicit checks from the legislative and judicial branches would reign in the executive’s power.[18]

But the will of the Framers with respect to the executive branch is made most manifest elsewhere in the Federalist papers. In Federalist No. 51, Madison writes that the executive must be “independent of the legislature” for “the great security against a gradual concentration of the several powers in the same department, consists in giving…personal motives to resist encroachments of the others.”[19] In plain terms, Madison’s words convey the need for the branches of government to not overlap in power and instead act with some degree of self-interest. Such competition, Madison elucidated, is “essential to the preservation of liberty.”[20]

Contrary to the Framers’ intent, the use of emergency powers by the executive violates the separation of powers principles. While parliamentary democracies across the Atlantic run the risk of executives and legislatures working as a unit, the current trend in the United States has nearly removed the legislature from legislative questions altogether and instead allows the President or Governor to combat emergencies unilaterally. Notably, when President Donald Trump declared a national emergency in an attempt to secure funding for the construction of a “wall” along the Southern border, he did so under the auspices of a law that Congress passed in 1982.[21] In the intervening years, Congress had not spoken regarding the appropriate extent of the President’s power under this law and, thus, allowed the President to run amok in achieving their respective policy ends using arcane statutes in a modern political arena. To fulfill the framers’ vision, Congress should reclaim its abdicated authority by passing a New War Powers Act.

II. State-Level Trends

Louis Brandeis famously noted that the states in our federal republic are the “laboratories of democracy.”[22] Our tiered system of governance encourages testing ideas or policies on the lower levels of government until, hopefully, they make their way into federal law. Today, however, there is unprecedented power bestowed to the executive branch at the state level. Take New York state as an example in its fight against the coronavirus pandemic: Governor Andrew Cuomo, under the discretion of his emergency powers, wielded immense personal authority over the state’s handling of what was once the country’s viral epicenter.[23] In the spring and summer—during the early months of the pandemic—Governor Cuomo was heralded as a steady leader, guiding the state through immense emotional and economic disaster.[24]

Nevertheless, not all of the measures that Governor Cuomo put in place were worthy of praise. Either out of ignorance or expedience, the Governor sent thousands of patients from the paradoxical safety of a hospital into the buzz-saw of nursing homes throughout the state.[25] Worse yet, it has come to light that the Governor falsified the number of deaths that occurred when the elderly patients were placed back in the care facilities from which they originally came in an effort to circumvent necessary federal intervention.[26] The governor’s arbitrary power was summarized best in Justice Neil Gorsuch’s opinion in Roman Catholic Diocese of Brooklyn v. Cuomo: “New York’s Governor…asserted the power to assign different color codes to different parts of the State and govern each by executive decree…[These] restrictions apply no matter the precautions taken, including social distancing, wearing masks, leaving doors and windows open, forgoing singing, and disinfecting spaces between services.”[27]

Considering these revelations, the state’s legislature has begun to stir. State Senator Gustavo Rivera stated that new legislative efforts are “to remind [Governor Cuomo] that the state government is not one big branch: there’s three of them.”[28] The proposed legislation “would limit the governor’s ability to supersede state laws to combat the pandemic and would establish a 10-person commission, made up of members of the Assembly and Senate, to evaluate any future pandemic-related directives by Mr. Cuomo, as well as suspensions of laws.”[29] State Senate majority leader, Andrea Stewart-Cousins, stated plainly that “the public deserves to have checks and balances.”[30]

While the example of Governor Cuomo is a unique, once-in-a-lifetime scenario, it exemplifies the worrying power that governors hold under the heading of emergency powers. Should a governor deem a situation an “emergency,” by his or her authority, they suddenly hold nearly unrestricted power.[31] Though the Federalist Papers outlined the scope of the federal government, the sentiment should not be lost on an individual state: allowing power into the hands of one individual—without the requisite input of the other branches of government—spells disaster. By analogy, Leon Trotsky summarized fascism as an end result in which “all the organs and institutions of sovereignty, the executive, administrative, and educational powers of the state” are vested in one set of hands.[32] Whether one calls it monarchical or fascistic, is at times maybe more a matter of semantics; however, when power consolidates in one body, it is an immediate cause for concern. This is the power that governors hold, being capable of inhaling the full extent of state power for their use.

III. Federal-Level Concerns

At the federal level, presidential power has consistently expanded without consequence. Most notably, the president has accumulated war powers that likely far exceed what is guaranteed in the Constitution.[33] The legislature has granted the President even more unlimited powers to initiate conflict over the years. More recently, in February 2020, President Biden called for a drone strike in Syria with no clear imminent threat. Yet, the latest Congressional input as to the power President Biden exercised was found in a law passed nearly twenty years prior during George W Bush’s administration.[34]

Congress is not the only culpable entity. The Supreme Court, through its Chevron doctrine, also granted the President the ability to both make and interpret the law.[35] Chevron dictates that when courts are faced with an ambiguous statute, they are to defer to the judgement of the executive agency charged with carrying out various regulations. In short, then, the Court has deferred to Congress which has deferred to the President. If a law is ambiguous, executive agencies decide what the law says, not the judiciary. As a result, political tides will violently rock stakeholders and the President will assume the role of the judiciary. [36]

Both forms of deference, from two branches of government, drive the underlying thematic concerns: unchecked Presidential power can muscle out the other branches of government and upset the longstanding constitutional balance.

IV. Possible Solutions

To return to the ideals of the Framers and balance divergent political interest, I propose a two-pronged approach. First, Congress should adopt a New War Powers Act. This law, as the original War Powers Act did too, would make clear that Congress is to eventually insert itself into the decision-making process in the face of an emergency. There would be no more proverbial “blank check” that an executive may exercise. This legislation would ensure the needed ability for executives to respond quickly and decisively to emergencies (without the inherent deliberation required by legislatures) while curbing the ability for this power to reign in perpetuity. The original War Powers Act was passed in light of the Gulf of Tonkin Resolution and allowed the President to “to take all necessary measures to repel any armed attack against the forces of the United States and to prevent further aggression.”[37] Consequently, Congress passed the original War Powers Act (50 U.S.C. § 1541) in order “to fulfill the intent of the framers of the Constitution of the United States and insure that the collective judgment of both the Congress and the President will apply [to armed conflicts]” (emphasis added). Much like the ability to wage war, one branch alone cannot solely provide input: altering the geopolitical landscape is a monumental decision which rightly calls both branches into action (the President acting as Commander-in-Chief and Congress using its power of the purse to fund such a conflict). While quick action is, at times, essential, the prolonged reliance on one branch removes the delicate balance of power that our government has relied on for several centuries.

Second, the judiciary must remain true to the Constitution. Challenges to executive authority do not de facto mandate courts to adopt the same view out of passivity. Indeed, such an ingredient in the form of the judiciary’s willingness to accept the will of the other branches has spoiled the recipe of judicial power. The logic that the judiciary ought to acquiesce to the face of democratically passed laws grounded what is perhaps one of, if not the worst, decisions in the history of the Supreme Court: Judicial deference to the legislature was the motivation behind, the Plessy v. Ferguson decision.[39] Deference alone did not produce Plessy’s abhorrent judgement; however, in its majority opinion, the Court wrote that “laws permitting, and even requiring [separation] in places where [people of different races] are liable to be brought into contact, [does] not necessarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the competency of the state legislatures in the exercise of their police power” (emphasis added). [40]  The Court did not assess whether the legislatures were acting in good faith but, instead, defaulted to the judgement of the nefarious actors who sought to maintain segregation.

Anything but an active judiciary would violate the Framers’ intent. The success of America’s “experiment” in self-governance, Hamilton wrote in Federalist No. 16, “would require not merely a factious majority in the legislature, but the concurrence of the courts of justice and of the body of the people. If the judges were not embarked in a conspiracy with the legislature, they would pronounce the resolutions of such a majority to be contrary to the supreme law of the land unconstitutional, and void.”[41] By contrast, a judicial branch which takes a blasé approach towards questions of constitutionality would only aid and abet infringements upon citizens’ liberties. The framers demanded that the courts serve as a bulwark against tyrannical exercises of power and called to judges to skeptically approach legislative or executive authority.

When the courts punt on legal questions and leave them for the other branches to resolve, they abdicate their authority at the expense of the people. By contrast, the originally outlined role of the judicial branch is clearly deferential not to the text of legislation but the Constitution alone. Challenges to these executive actions conducted under “emergency powers” must be actively tested against the Constitution’s limits rather than passively accepting the judgement of the legislature or executive agencies.

Conclusion

Each individual action taken by a governor or president represents the reach of an executive’s power. While executive powers may advance causes we care deeply about, they may also erode the norms and policy ends that we hope to see. Limiting executive power—by definition, power that already rests in one set of hands—better limits the devolution of democracy towards tyranny.

Copyright © 2022 James J. Bernstein, J.D., Georgetown University Law Center (2024); B.A., Columbia College, Columbia University (2020). With gratitude and appreciation for Begonia El Koury who must deal with my being wrong more than any other person. The DOI for this article is at https://doi.org/10.15779/Z38ZP3W178.

[1].       Sinclair Lewis, It Can’t Happen Here (1935).

[2].       See Olivia Rubin, Alexander Mallin & Alex Hosenball, ‘Because President Trump Said to’: Over a Dozen Capitol Rioters Say They Were Following Trump’s Guidance, ABC News (2021), https://abcnews.go.com/US/president-trump-dozen-capitol-rioters-trumps-guidance/story?id=75757601; see also CBS Balt. Staff, ‘We Love You, You’re Very Special’: President Trump Tweets Message, Later Removed, to Rioters Storming the U.S. Capitol, CBS Balt. (2021), https://baltimore.cbslocal.com/2021/01/06/its-time-to-go-home-now-president-trump-tweets-message-to-supporters-storming-the-u-s-capitol/.

[3].       Philip Roth, The Plot Against America (2004).

[4].       Justice Antonin Scalia, On American Exceptionalism to the Senate Judiciary Committee (Oct. 5, 2011), https://www.americanrhetoric.com/speeches/antoninscaliaamericanexceptionalism.htm.

[5].       See id.

[6].       See id.

[7].       The Federalist No. 51.

[8].       See Dylan Hedtler-Gaudette, Congress Must Reclaim Its Role as a Check on Executive Power, Project on Gov’t Oversight (Nov. 07, 2019), https://www.pogo.org/analysis/2019/11/congress-must-reclaim-its-role-as-a-check-on-executive-power/.

[9].       See id.

[10].     See A Guide to Emergency Powers and Their Use, Brennan Ctr. for Just. (2020), https://www.brennancenter.org/our-work/research-reports/guide-emergency-powers-and-their-use.

[11].     See supra note 8.

[12].     See Trip Gabriel, State Lawmakers Defy Governors in a Covid-Era Battle for Power, N.Y. Times (2021), https://www.nytimes.com/2021/02/22/us/politics/republicans-democrats-governors-covid.html.

[13].     See The Federalist No. 70 (“[w]herever two or more persons are engaged in any common enterprise or pursuit, there is always danger of difference of opinion. If it be a public trust or office… there is a peculiar danger of personal emulation and even animosity.” which may result in “a feeble Executive” and, in turn, “a feeble execution of the government.”).

[14].     See supra note 7.

[15].     See The Federalist No. 69.

[16].     Id.

[17].     Id.

[18].     Id.

[19].     See supra note 7.

[20].     Id.

[21].     See supra note 10.

[22].     New State Ice Co. v. Liebmann, 285 U.S. 262 (1932) (“a state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”).

[23].     Jesse McKinley & Luis Ferré-Sadurní, Cuomo Faces Revolt as Legislators Move to Strip Him of Pandemic Powers, N.Y. Times (2021), https://www.nytimes.com/2021/02/17/nyregion/cuomo-nursing-homes-deaths.html.

[24].     Id.

[25].     Id.

[26].     Id.

[27].     Roman Cath. Diocese of Brooklyn v. Cuomo, 592 U.S. (2020).

[28].     Id.

[29].     Id.

[30].     Id.

[31].     See Gabriel, supra note 8.

[32].     Leon Trotsky, Fascism, What Is It and How to Fight It (1993).

[33].     See Jonah Shepp, What Were the Legal (and Strategic) Grounds for Biden’s Syria Airstrikes?, Intelligencer (2021), https://nymag.com/intelligencer/2021/02/the-legal-and-strategic-grounds-for-bidens-syria-strikes.html.

[34].     See id.

[35].     See James J. Bernstein, Abandon Judicial “Neutrality”: Why Chevron Deference Stifles Technological Innovation, 27 Rich. J.L. & Tech., no. 1, (2020).

[37].     The Tonkin Gulf Incident; 1964, Avalon Project, http://avalon.law.yale.edu/20th_century/tonkin-g.asp#joint.

[39].     163 U.S. 537 (1896).

[41].     The Federalist No. 16.

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