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Saikrishna Prakash column: Washington, Trump and pandemics
Presidential Power

Saikrishna Prakash column: Washington, Trump and pandemics

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In the midst of our dread about the coronavirus, we are learning about social distancing and the physics of cough droplets. We also are discovering the limits of presidential power and witnessing how public expectations shape the presidency. But this hardly is the first time that a president has confronted a pandemic. The differences in how the first president handled the first pandemic and what some of us expect from our president today reveals quite a bit about how the founders envisioned the presidency and what it might yet become.

The first pandemic after our nation’s founding occurred during the administration of George Washington. In 1793, Philadelphia was struck by a deadly yellow fever. In a city of more than 50,000 residents, some 20,000 fled. More than 5,000 died, meaning that more than 10% fell victim to the plague.

Philadelphia was the nation’s capital at the time and Congress, in the midst of that pandemic, was set to reconvene there. Washington fretted that legislators would return, and many would become ill and die. What would the sagacious Washington do?

The presidency then was a rather different institution. In that era, nothing was expected of Washington. No one asked the executive to coordinate the response. The first presidency was not responsible for finding medical supplies, a cure or for imposing a quarantine. The fever was a state issue. For its part, the federal government had no authority over quarantines, as Chief Justice John Marshall would confirm much later.

Washington did have the power to convene Congress on “extraordinary occasions.” He thought it made sense to convene Congress elsewhere, thereby ensuring that legislators did not return to a plague-ridden city. Because Washington was ever cautious, never wishing to exceed the limits of his constitutional authority, he solicited opinions from Alexander Hamilton, James Madison, the House speaker and many others about whether he could summon Congress to some city outside Philadelphia.

Washington concluded that he lacked constitutional authority to summon Congress elsewhere. This was a sound reading. A power to summon Congress early was not a power to summon it elsewhere. But based on the guidance of his clever advisers, Washington informed the legislators of the outbreak, with the suggestion that they ought to meet him in nearby Germantown. Lacking legal authority to convene Congress elsewhere, he merely suggested a safer venue. At the time, no one complained that President Washington was timorous or that he did not rise to meet the challenge.

Times have changed. Americans expect far more of their presidents. We expect them to protect us from external threats and keep the economy humming. In the wake of natural disasters, we expect them to supervise billion (and now trillion) dollar responses to hurricanes and pandemics. Presidents are seen as problem solvers for national crises, and a deadly outbreak from coast to coast certainly seems like it requires national stewardship.

President Donald Trump has asserted that he could order an end to the state shutdowns. But he is unlikely to push the point and, if he does, many state governors might ignore him. At times, he seems paralyzed, fearful of a declining economy and apprehensive of a renewed upswing in deaths.

In the next disaster, a future president might conclude that he or she cannot remain as passive. That president might conclude that if you are going to be blamed for the outcome no matter what, passivity or constitutional modesty makes little sense. Bold leaders might be criticized, but at least they are acting. So eventually, an incumbent will be tempted to expand the presidency, to handle problems that many believe ought to be resolved by our nation’s chief problem solver. And if the president has enough allies in the press and the public, this boldness might prevail.

This is how our living presidency accretes, adding a little power here and there. Each president takes actions and successors build upon those deeds, creating precedents. Eventually the constitutional claims that undergird these precedents come to be taken as conventional wisdom by enough politicians and the public. So, what was alien to the presidency at the founding, or even today, eventually is seen as an integral part of the executive office. That eventually could happen with pandemics, just as it already has happened in war powers and foreign affairs. Presidents today claim vastly greater authority in both of these areas than at the founding.

We cannot say with certainty what future changes are in store for the presidency. But if the past is prologue, we can be confident that presidents often will rise to the challenge of solving national problems. If we are going to expect great crisis responses of our presidents, we can expect them to assume great crisis powers to fulfill our great expectations. Trump might be the surprising exception to the more general rule.

Saikrishna Prakash is professor of law at the University of Virginia and a senior fellow at UVA’s Miller Center of Public Affairs. He is the author of “The Living Presidency: An Originalist Argument Against Its Ever-Expanding Powers.” Contact him at: sp5mm@law.virginia.edu

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