TAI Editor-in-Chief Jeffrey Gedmin and Publisher Charles Davidson recently spoke with contributing editor William A. Galston for his perspective on the COVID-19 pandemic. This transcript has been edited for length and clarity.
Jeffrey Gedmin for TAI: As a TAI editorial board member, you’ve told us that the current crisis should focus us on the rule of law, the Constitution, and the possibility of presidential overreach. Can you elaborate?
William A. Galston: Let me give you a concrete example. Earlier this week, President Trump was threatening to, in effect, create a no-go zone around New York, New Jersey, and parts of Connecticut. Query: Does he have the legal or constitutional authority to do so? The governors are quite convinced that he does not. There is some language on the CDC website suggesting that he does, appealing to the interstate commerce clause. Many constitutional scholars that I’ve read think that is not a sound constitutional basis for that sort of quarantine. Fortunately, the President backed off on that idea before it came to a legal confrontation.
A broader issue in the same frame: Suppose the President decides that he wants to “reopen the country,” or at least some states. A governor of one of those states says, “No, in my judgment, we’re not ready to reopen. The rate of infection is still too high.” On my reading of the Constitution, the governors have the ultimate authority in the exercise of what the Constitution calls their police powers—matters having to do with the health, safety, and welfare of their own populations. The President can make recommendations but he cannot issue orders to governors.
These are issues that are popping up in real time, and I think we have to be conscious of the ways in which existing laws can be expanded beyond legislatively intended limits and deployed for purposes for which they were not intended. Regrettably, over the past four decades, Congress has created more than 127 separate emergency powers, many of which are well past their sell-by date but remain on the books. As Alexander Hamilton reminded us, the Constitution creates a strong executive for good reason, but a strong executive is not an unlimited executive. I think it is the responsibility of Congress, the courts, and ultimately the citizens to police those bounds.
TAI: If we get to that moment where the President wants to “reopen the country,” even though authority properly rests with governors on these questions, what would the politics look like—between Trump and his voters, between Trump and GOP governors?
WAG: I’ll give you a weaselly but I think accurate answer: It depends.
Let’s take three Republican governors. Mike DeWine of Ohio has been quite aggressive in telling individuals, businesses, and other institutions within his state that they had to shut down or dramatically curtail their activity. He has put public health and safety first and has taken some heat for doing that, but has also gotten a lot of support from the citizens of Ohio. If the President were to tell Governor DeWine to stand down prematurely, I am pretty sure that DeWine would tell the President to go to some place he’s probably bound for anyway.
Likewise, I’m pretty confident that in a showdown between Charlie Baker and President Trump in Massachusetts, Governor Baker would have a pretty strong hand to play. And the third example is Larry Hogan in my own state of Maryland, who has been increasingly aggressive. He said he was very much afraid that in two or three weeks portions of Maryland would look like portions of Italy, which is not what you want these days. There again, the President would get a lot of pushback.
I’ve surveyed all the polling conducted on this issue. And as things now stand, the American people across party lines think that this is a national emergency and that all of the measures taken by the public sector to address it so far are sensible.
TAI: Some of us have been concerned from the beginning about Donald Trump’s authoritarian instincts, and Viktor Orbán, for example, has revealed himself in this crisis as a true consolidator of power. In the case of Trump, though, he’s been inconsistent and perhaps chaotic, but thus far hasn’t been bent on accumulating power and challenging checks and balances. Do you see that differently?
WAG: I think that’s basically right up to now. I have noted the multiple occasions in which the courts have rendered judgements that infuriated the President, and he has yet to outright violate a ruling of the court. That’s a good sign. I think in this crisis he has not revealed himself as an effective manager of the Federal government’s resources, but he doesn’t seem to have exploited the situation to the ends that Viktor Orban has. It is telling that Orban has now done what Adolf Hitler did just a few months into his chancellorship, which is to put through an emergency law allowing him to rule by decree. I think that would still be unthinkable in United States.
TAI: You have stressed to us the importance of holding elections on time. How should we be prepared to execute on that? And what if circumstances argue for rescheduling or postponing?
WAG: It’s not just important to me, it’s important to the country. It’s one thing for states to postpone primary elections. Those elections are within the state’s power. As state after state has pushed back its primary, there has been very little criticism. Everybody recognizes that conducting a fair and inclusive election under these extreme circumstances will be difficult and trying to do so would probably be irresponsible.
But A, we ought to be in a very different place with the disease by November, and B, a national election is a constitutional requirement. It has constitutional standing and it’s not clear to me whether anybody at the level of the Federal government has the power to change the date of the national election. That’s a constitutional question in itself. I think it would be a tremendous blow to national confidence, and to people’s confidence in our public institutions, if the election were postponed. It would give rise to an orgy of suspicion that it had been delayed for partisan purposes. We do not exactly live in an era of high trust, either in government or one another. It would be Bush v. Gore on steroids.
TAI: How should we make this happen, practically, if people aren’t able to vote in person? Do you have some idea about the logistics?
WAG: Well, I have a very simple idea and it’s already been introduced as a legislative proposal by a couple of senators—namely, that we should move to a system where voting by mail is permitted in every state. My reading of that law is that it is consistent with the constitutional division of powers between the state and the Federal government when it comes to the time, place, and manner of elections. Obviously, the law would have to authorize and direct the several states to set up reliable verification mechanisms. But we know that some states are already using it. The state of Washington is almost entirely a vote-by-mail state and they’ve made it work. There’s no reason why, if we had some lead time, the rest of the country couldn’t too.
That is as close to a silver bullet remedy for this problem as we could possibly devise. No doubt that proposal would become mired in partisan debate, but I would hope that that cooler heads would prevail, and the old patriotism and respect for the Constitution would dominate the proceedings.
TAI: Is there anything else, practically speaking, that needs to be done in terms of ensuring the election? Making vote by mail national seems to be a pretty simple thing. Does Congress have the authority to do that?
WAG: Well, hold on for just a minute. I’m going to walk downstairs and double check my copy of the Constitution. [Pause]
Okay, found it. So in Article One, Section Four we find the following: “The Times, Places, and Manner of holding Elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time by Law make or alter such regulations.” I read that language as giving Congress the power over the particular manner of holding elections. That’s for senators and representatives.
As to the election of the President, let’s take a look at Article Two. Section One reads, “The Congress may determine the Time of chusing [sic] electors and the Day on which they shall give their votes; which Day shall be the same throughout the United States.” So the President has no power whatsoever to determine or change the day of his own election, nor does he have the power to determine or change the time for the election. Both of those powers are given by the Constitution squarely to the Congress—period.