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"Trump's statements are haphazard at best and unconstitutional at worst," writes constitutional scholar Jennifer Selin.
Trump versus the states: What federalism means for the coronavirus response
Apr 28 2020
Selin is an assistant professor of political science at the University of Missouri, Columbia.
<p>President Trump recently attempted to explain the complex relationship between the federal government and the states, as outlined by the framers in 1787: "You can call it 'federalist,' you can call it 'the Constitution,' but I call it 'the Constitution.'"<br/></p><p>That statement <a href="https://thehill.com/homenews/administration/492503-trump-claims-he-not-governors-has-authority-on-opening-state" target="_blank">to reporters</a> April 10, and several others of his recently, highlights one of the key issues that has affected America's response to the coronavirus pandemic: <a href="https://www.law.cornell.edu/wex/federalism" target="_blank">federalism</a>.</p><p>In its most basic terms, "federalism" is the Constitution's way of distributing decision-making authority. It grants the national government the power to conduct certain activities and <a href="https://constitutioncenter.org/interactive-constitution/amendment/amendment-x" target="_blank">reserves the rest of governmental decisions to the states</a>. But who does what is not always clear-cut.</p><p>Throughout the coronavirus crisis, the president <a href="https://www.politico.com/news/2020/04/13/trump-governors-decision-reopen-183405" target="_blank">has made contradictory statements</a> about who is responsible for key aspects of the nation's response to the pandemic.</p><p>For example, while Trump <a href="https://www.nytimes.com/2020/04/13/us/coronavirus-updates.html" target="_blank">asserted he has the authority</a> to order the states to reopen the economy, he also <a href="https://www.politico.com/news/2020/04/05/white-house-trump-funding-states-coronavirus-165783" target="_blank">insisted that it is the governors' responsibility</a> to manage coronavirus testing. From my perspective as a constitutional scholar, <a href="https://www.bloomberg.com/opinion/articles/2020-03-19/coronavirus-pandemic-shows-challenges-of-u-s-federalism" target="_blank">Trump's statements are</a> haphazard at best and unconstitutional at worst.</p><p>But what is the president's role when it comes to guiding the nation through the coronavirus pandemic? How much power do governors have? Who is in charge?</p><p>One of the <a href="https://www.congress.gov/resources/display/content/The+Federalist+Papers#TheFederalistPapers-37" target="_blank">most difficult tasks</a> facing those who drafted the Constitution was the proper distribution of power. Experience living under British rule taught them that power centralized in a single executive <a href="https://www.smithsonianmag.com/history/inside-founding-fathers-debate-over-what-constituted-impeachable-offense-180965083/" target="_blank">could lead to oppression</a>. As a result, many were reluctant to grant too much power to a president.</p><p>This was reflected in the <a href="https://www.ourdocuments.gov/doc.php?flash=true&doc=3" target="_blank">Articles of Confederation</a>, adopted after the Declaration of Independence but before the Constitution. They gave a lot of power to the states and almost no power to the national government. Yet governance under the articles illustrated that individual states can fail to work together to overcome big problems, like national security.</p><p>What became clear to the Founders was that a central authority is often necessary to coordinate the responses of individual states to the big economic and security issues that face the nation.</p><p>Their solution was to grant the national government authority to regulate citizens but not to regulate the states themselves. Put in the most basic terms, Congress and the president <a href="https://www.supremecourt.gov/opinions/17pdf/16-476_dbfi.pdf" target="_blank">lack the constitutional power</a> to tell states what to do.</p><p>The Constitution gives the <a href="https://constitutioncenter.org/blog/article-1-the-legislative-branch-the-enumerated-powers-sections-8/" target="_blank">federal government the ability</a> to address national issues like defense, foreign policy and monetary policy. The states retain the power to <a href="https://www.ncsl.org/documents/health/legpowers.pdf" target="_blank">address the well-being of their citizens</a>. This includes setting health and education policy and even regulating elections.</p><p>This constitutional balance between state and federal power is still in flux. Enormous changes in our federal system mean the national government now takes on challenges the framers could not have imagined. For example, the national government <a href="https://www.epa.gov/aboutepa/our-mission-and-what-we-do" target="_blank">protects human health by regulating the environment</a> and helps our ability to communicate by <a href="https://www.federalregister.gov/documents/2017/01/18/2017-00395/information-and-communication-technology-ict-standards-and-guidelines" target="_blank">providing uniform standards for internet technologies</a>.</p><p>As a result, the president has more expansive power than anticipated. Yet, <a href="https://texaslawreview.org/administrative-states-beyond-presidential-administration/" target="_blank">a large part</a> of the president's executive and administrative tasks involve managing the relationship between the national government and the states.</p><p>The president <a href="https://supreme.justia.com/cases/federal/us/521/898/" target="_blank">cannot constitutionally issue directives</a> requiring states to address certain problems or commanding governors to administer specific programs. But their administrations can encourage states to adopt certain policies, such as uniform education standards.</p><p>Sometimes this occurs by providing federal funding to states, conditioned on their adopting certain policies. The Obama administration, for example, <a href="https://scholarship.law.wm.edu/wmlr/vol53/iss2/8/" target="_blank">routinely used federal funding</a> to encourage states to adopt his preferred health care policies.</p><p>Federalism is often viewed as a conflict between the national government and the states. Yet there are many areas in which coordinated action between all levels of government occurs on a regular basis.</p><p><a href="https://www.stanfordlawreview.org/print/article/what-is-federalism-in-healthcare-for/" target="_blank">Health care is a prime example</a>. While states have the constitutional power to regulate health and welfare, there is a long history of national government involvement in health policy.</p><p>Historical crises such as the Depression and the two world wars highlighted the fact that not every state has the means to address all the medical needs of its citizens. Every president since Franklin D. Roosevelt has used the national government to expand or improve health care in the states.</p><p>The framers recognized the importance of national government in times of crisis. Both <a href="https://www.congress.gov/resources/display/content/The+Federalist+Papers#TheFederalistPapers-45" target="_blank">James Madison</a> and <a href="https://www.congress.gov/resources/display/content/The+Federalist+Papers#TheFederalistPapers-70" target="_blank">Alexander Hamilton</a> acknowledged the need for unified, national leadership when the country faced threatening circumstances. Madison said in the Federalist Papers, "The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments, in times of peace and security."</p><p>The coronavirus is such an emergency. So what does all of this constitutional history mean for the nation's response to Covid-19?</p><p>First, consistent with constitutional principles, Washington's response so far has largely been directed at providing help to individuals and private entities. The provisions of the back-to-back recovery measures of March and April that do relate to state and local government simply offer opportunities for federal funding.</p><p>Second, the Trump administration retains the authority to administer funds. The president has used this authority to do things like direct <a href="https://foreignpolicy.com/2020/03/20/military-rescue-united-states-coronavirus-trump-esper-navy-ships-reserves-pandemic/" target="_blank">military aid to states</a> and <a href="https://www.cms.gov/newsroom/press-releases/trump-administration-makes-sweeping-regulatory-changes-help-us-healthcare-system-address-covid-19" target="_blank">relax rules that regulate government approval for coronavirus testing</a>. He also has announced <a href="https://assets.documentcloud.org/documents/6840739/Guidelines-PDF.pdf" target="_blank">guidelines</a> for states to use when reopening state economies.</p><p>However, consistent with the Constitution, governors have discretion whether to implement these guidelines.</p><p>This means it is still up to individual states to craft policies that protect their citizens' health and welfare during this crisis. <a href="https://www.nytimes.com/2020/04/13/us/coronavirus-updates.html" target="_blank">Some </a>are working closely with the White House, and others are <a href="https://time.com/5820263/governors-agreements-economic-reopenings-coronavirus/" target="_blank">coordinating their response efforts</a> with neighboring states.</p><p>So if the country's response to the coronavirus crisis will likely remain piecemeal and state-specific, perhaps this is what the framers intended.</p><p><em>This article is republished from </em><a href="https://theconversation.com/us" target="_blank"><em>The Conversation</em></a><em> under a Creative Commons license. </em><em><a href="https://theconversation.com/trump-versus-the-states-what-federalism-means-for-the-coronavirus-response-136361" target="_blank">Click here</a></em><em> to read the original article.</em></p><div class="rm-embed embed-media"><p><img alt="The Conversation" height="1" src="https://counter.theconversation.com/content/136361/count.gif?distributor=republish-lightbox-advanced" width="1"></p></div>
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"While the current battle between Trump and congressional Democrats is newsworthy, it is not entirely new," writes Jennifer Selin.
Trump, Ukraine and a whistleblower: Ever since 1796, Congress has struggled to keep presidents in check
Oct 02 2019
Selin is an assistant professor of Constitutional Democracy at the University of Missouri-Columbia.
George Washington, hero of the American Revolution and the country's first president, in 1796 withheld documents the House of Representatives had requested from him regarding treaty negotiations with France.
Washington thought that giving the House papers respecting a negotiation with a foreign power would be to establish a dangerous precedent.
Washington's reluctance to hand over these documents has echoed through time, in conflicts between Congress and Presidents Monroe, Jefferson, Adams all the way to Presidents Coolidge, Kennedy, Nixon and Reagan, among others. For the most part, members of Congress still must rely on the president and his administration for information in the areas of foreign relations and intelligence.
In the latest version of that long-running tension between Congress and the president over power, Acting Director of National Intelligence Joseph Maguire appeared before the House Intelligence Committee last week.
The testimony is part of a chain of events that began in August when an anonymous whistleblower filed a complaint with the inspector general for the intelligence community, who is tasked by Congress to identify problems in the national intelligence agencies. The complaint related to reports that President Trump pressured Ukraine to investigate former Vice President Joe Biden and his family. The developing conflict between Trump and Congress has involved, among other aspects, a struggle over who can have access to crucial documents.
<p>
The Intelligence Committee will no doubt use Maguire's testimony as a preliminary step in the formal impeachment inquiry
<a href="https://www.nbcnews.com/politics/trump-impeachment-inquiry/pelosi-announce-formal-impeachment-inquiry-trump-n1058251" target="_blank">announced</a> by House Speaker Nancy Pelosi, a Democrat.
</p>
<p>
Questions about the degree to which the
<a href="https://theconversation.com/trump-vs-congress-the-emergency-declaration-should-not-be-resolved-in-court-112118" target="_blank">legislative and executive branches of the government should share power</a> have arisen throughout the nation's history. While a simple view of the American Constitution revolves around the idea that the federal government is divided into three coequal branches, this understanding is incomplete.
</p>
<p>
The Founders
<a href="https://theconversation.com/separation-of-powers-an-invitation-to-struggle-110476" target="_blank">struggled with problems related to the separation of powers</a>. The text of the Constitution, combined with subsequent legal analysis, shows tension between a desire to separate the branches and the need to integrate the federal government's core functions.
</p>
<p>
Foreign relations and national security issues like those underlying the Ukraine conflict only exacerbate this tension.
</p>
<p>
<a href="https://www.reuters.com/article/us-usa-trump-whistleblower-text-idUSKBN1W935Q" target="_blank">Pelosi's announcement</a> relied heavily on references to the Constitution. At one point, she said, "Our republic endures because of the wisdom of our Constitution enshrined in three coequal branches of government serving as checks and balances on each other."
</p>
<p>
Yet, what exactly does the Constitution say about the relationship among these three branches?
</p>
<p>
<a href="https://caselaw.findlaw.com/us-supreme-court/539/396.html" target="_blank">Over time,</a> the Constitution's language has been interpreted to grant the president <a href="https://www.cfr.org/backgrounder/us-foreign-policy-powers-congress-and-president" target="_blank">broad authority</a> in the conduct of foreign affairs. Many recognize <a href="https://doi.org/10.1007/BF02810961" target="_blank">presidential power is greatest</a> when the president directs foreign policy.
</p>
<p>
The president's broad power is partly by design. Imagine if the president had to publicly broadcast his strategy and build a legislative coalition every single time he communicated with a foreign leader.
</p>
<p>
And part of the president's power is a result of the accumulation of laws granting policy authority to the executive branch over time.
</p>
<p>
Regardless, there is no question that the Founders intended for members of Congress to exercise oversight of presidential conduct in foreign policy. In fact, Congress
<a href="https://www.justice.gov/file/23246/download" target="_blank">first established</a> a congressional committee to request executive branch documents relating to foreign relations in 1792.
</p>
<p>
Yet then, as now, lawmakers struggled to obtain the requested information.
</p>
<p>
Because voters in contemporary politics reward or punish the president for issues that arise in foreign relations, presidents have a
<a href="https://doi.org/10.1017/S0022381607080061" target="_blank">reason to control</a> the narrative when it comes to national security.
</p>
<p>
Congress often has little incentive – or ability – to do much about it. There is waning congressional
<a href="https://press.princeton.edu/titles/10514.html" target="_blank">interest</a> in oversight of foreign policy. Reelection concerns encourage members of Congress to focus their energies on domestic affairs and constituent service.
</p>
<p>
When legislators do get involved in foreign policy, they are often in a reactive position. Because of the president's constitutional freedom to initiate contact with foreign powers, the
<a href="https://academic.oup.com/jleo/article-abstract/15/1/132/827394" target="_blank">president has an advantage</a> over Congress.
</p>
<p>
Furthermore, the
<a href="https://onlinelibrary.wiley.com/doi/abs/10.1111/ajps.12066" target="_blank">nature of the oversight system</a> can hinder legislators' responses to presidential action. It takes time and resources to coordinate a response, not to mention agreement among a majority of members of Congress.
</p>
<p>
So what makes the crisis involving Trump, Ukraine and the whistleblower different from other foreign policy power struggles between Congress and the executive branch?
</p>
<p>
Perhaps this is a Trump issue, not a foreign policy issue. More constituents are
<a href="https://www.huffpost.com/entry/impeachment-summer-august-recess_n_5d6c3030e4b0cdfe0571f71f?guccounter=1" target="_blank">pressuring</a> their Democratic House members to pursue impeachment than ever before. This straightforward conflict may provide a <a href="https://fivethirtyeight.com/features/impeaching-trump-on-russia-was-unpopular-will-ukraine-be-different/" target="_blank">clear story</a> for Democrats to tell.
</p>
<p>
Yet, despite providing
<a href="https://int.nyt.com/data/documenthelper/1848-unclassified-phone-call-transcript-Trump-Zelensky-Biden/249ed692ce978e413641/optimized/full.pdf#page=1" target="_blank">a written record of the call between Trump and Ukraine's leader</a>, the president and his administration still control much of the information about the events.
</p>
<p>
And Congress has limited time and resources to force the executive branch to relinquish this information, particularly if Congress wishes to do so before the 2020 election.
</p>
<p>
While Congress can
<a href="https://www.nytimes.com/2019/08/13/us/politics/trump-house-lawsuits.html" target="_blank">appeal to the courts</a> to compel disclosure of documents it needs in its investigation of the Ukraine affair, it is unclear whether the courts would do so.
</p>
<p>
Separation of powers issues and what is called the
<a href="http://www.aulawreview.org/the-political-question-doctrines/" target="_blank">political question doctrine</a> – which says some disputes are too political in nature for the judiciary – makes courts reluctant to interfere in political fights between Congress and the president, particularly about national security.
</p>
<p>
The situation is further complicated by the fact that
<a href="https://www.cnn.com/2019/09/25/politics/donald-trump-nancy-pelosi-impeachment/index.html" target="_blank">Republican support for Trump appears intact</a>, making coordination across the chambers of Congress quite difficult.
</p>
<p>
While the current battle between Trump and congressional Democrats is newsworthy, it is not entirely new. The fight for information over the president's negotiations with foreign powers is an inevitable consequence of the U.S. constitutional system.
</p>
<p>
<em><em>This article is republished from <a href="http://theconversation.com/" target="_blank">The Conversation</a> under a Creative Commons license. <a href="https://theconversation.com/trump-ukraine-and-a-whistleblower-ever-since-1796-congress-has-struggled-to-keep-presidents-in-check-124146" target="_blank">Read the original article</a>.</em></em>
</p>
<p>
<img alt="The Conversation" height="1" src="https://counter.theconversation.com/content/124146/count.gif?distributor=republish-lightbox-advanced" width="1">
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