Our country was caught flat-footed by COVID-19, and the governmental response at the federal level has been slow, fitful and inconsistent. While a lot of criticism has been justifiably leveled at President Donald Trump for not exercising more of the emergency powers he does possess, a fundamental feature of our political system would inhibit Washington from assuming complete command and control even if the White House were in more competent hands. It’s called the U.S. Constitution.

The Constitution’s framers didn’t devote a single word to epidemics when they drafted this blueprint for a national government in 1787.

Rearview Mirror

It’s not that they were unaware of the phenomenon. A smallpox epidemic broke out in 1776, during the Revolutionary War, in Boston and Philadelphia (where the Continental Congress and later the Constitutional Convention met). To counter the threat, Gen. George Washington barred refugees from Boston from the Continental Army’s camp and took the precaution of requiring his troops to be inoculated against the disease upon enlistment.

It’s just that the framers were concerned about overly concentrating power and, as a consequence, fenced in the federal government, allowing it more expansive authority only in times of war or rebellion. Dealing with epidemics, to the extent it was considered a governmental function at all, would have been deemed a task for the states.  Indeed, the Constitution’s 10th Amendment specifies that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

There’s really only a handful of provisions in the Constitution which can be used to justify federal intervention in an epidemic.

Article I of the Constitution specifies that Congress has the power to “provide for the … general Welfare of the United States,” to “borrow money on the credit of the United States,” to “regulate commerce with Foreign nations, and among the several States,” to “provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions,” and to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.”

Article II makes the president Commander … of the Militia of the several states, when called into the actual service of the United States; ….”  The Fifth Amendment forbids that “private property be taken for public use, without just compensation,” implying that it can be taken for public purposes so long as the owner is fairly compensated.

There’s enough ammunition in these clauses to justify incurring federal debt to provide subsidies to businesses, health care organizations and individuals during an epidemic, to requisition essential health care equipment, supplies and facilities for treating victims, to limit travel to the United States, to restrict interstate transportation, or to call up the National Guard to maintain law and order in the event of civil disorder.

But could  Trump order people to remain at home or businesses, schools and state or local government offices to shutter due to the microbial threat posed by a pandemic? During a coronavirus briefing  April 13, he boasted that he could. “When somebody is the president of the United States, the authority is total, and that’s the way it’s got to be. It’s total. It’s total.  And the governors know that,” he proclaimed

The governors knew no such thing. They understood that this was bluster, but a constitutional showdown was averted when federal guidelines, issued April 16, recommended criteria for reopening but left actual decision-making to the discretion of state officials.

Even the Defense Production Act of 1950 (DPA), which the president has invoked on a limited basis to compel private companies to produce necessary medical equipment (like ventilators) in short supply, is not open-ended and may stretch beyond constitutional limits when applied to an epidemic.

The DPA gives the president certain emergency powers over the economy, allowing him to force businesses to prioritize contracts and orders for, and to allocate, materials, services and facilities that are scarce and essential for the national defense, to take measures to prevent hoarding, and to provide incentives for producing critical components, materials and technologies. “National defense” under the DPA has been rather liberally defined by Congress to include not only war but natural or man-made disasters and acts of terrorism within the United States.

There’s nothing in the DPA, however, that allows the federal government to require businesses to close or people to stay home. Moreover, it’s unclear to me whether the limited powers afforded the president under this statute can be constitutionally invoked in other than war or insurrection, and Americans have not revolted or rioted nor is coronavirus a nation that has attacked us.

In the past, acts of presidential overreach in times of national crisis have been struck down by the courts. For instance, in 1952 President Harry Truman seized control of the nation’s steel mills to head off threatened union strikes, because, he believed, they could lead to steel shortages which would jeopardize the national defense during the Korean War. But the U.S. Supreme Court, in Youngstown Sheet & Tube Co. vs Sawyer, ruled that the president had no right to take over the steel mills, because neither the Constitution nor Congress gave him authority to do so.

When the COVID-19 crisis ends, therefore, it may be time to consider a constitutional amendment to address the reach of federal power during epidemics as well as natural disasters.

It’s a difficult issue, one which deserves careful deliberation. During such crises, a coordinated response is often necessary, and the country may not have the luxury of time to bring all 50 states into consensus on a unified approach. On the other hand, when the presidency is in the hands of someone who is incompetent or unscrupulous, extraordinary emergency powers could easily be misused.

Still, if COVID-19 has taught us anything, it’s that we need to retool our society for 21st century challenges rather than assuming that what’s worked in the past will suffice to get us through the next crisis.   That applies even to something as venerable as the Constitution.