Trump Rewrites the Book on Emergencies

By Christopher DeMuth April 17, 2020

Washington’s response to the Covid-19 pandemic is upending one of the most durable patterns of American politics. Throughout history, national emergencies have led to a more powerful and centralized federal government and to the transfer of federal power from Congress to the executive branch. This time, the federal response rests largely on state and local government and private enterprise, with a wave of deregulation clearing the way. The Trump administration has seized no new powers, and Congress has stayed energetically in the game.

The historical pattern is powerful and might have seemed inevitable. In times of war, natural disaster and economic upheaval, action is king. The president and his officials and agencies can act with much greater dispatch than Congress can. They may be forgiven for crossing statutory or even constitutional boundaries—in a crisis, the test of legitimacy is perceived effectiveness. But emergency actions often set precedents for normal times.

Moreover, crises generate proposals for preventing their recurrence. These typically take the form of an agency that, with the benefit of hindsight, could have nipped the crisis in the bud. Positing an omnicompetent government authority is political misdirection: It elides the profound problems of uncertainty and conflicting information and interpretation that precede every catastrophe. That is a sure recipe for highly concentrated, discretionary power.

These tendencies were dramatically on display in the first two national emergencies of the 21st century, 9/11 and the 2008 financial collapse. In response to the 9/11 attacks, the Bush administration and Congress created two gigantic agencies with extraordinary powers and insulation from congressional control, the Department of Homeland Security and the Office of the Director of National Intelligence. Intelligence was centralized and bureaucratized; federal police powers were extended down to driver’s licenses and much else; the administration established wide-ranging surveillance programs.

In response to the 2008 crisis, the administration arranged corporate mergers and bailouts with only fig leaves of statutory authority. It spent hundreds of billions of dollars without congressional appropriation. These crisis expedients provided the template for the Obama administration’s unilateral responses to mere political frustrations—congressional inaction on its climate change, immigration and other legislative proposals. At the same time, the Dodd-Frank Act of 2010 commissioned an army of new regulatory authorities with unprecedented discretion and autonomy.........To Read More....