Similar to the observation in HL 99, that the viral plague has ironically produced collateral benefits (e.g., less pollution) the ongoing political plague has been a boon to scholars of the Constitution. Trump has not merely flouted or challenged numerous familiar constitutional provisions – dealing with subjects like freedom of and from religion, privacy/bodily integrity and assertions of broad/plenary executive power, but also many arcane and obscure provisions. Such as those dealing with emoluments (HL 14, Emoluments, Legal Prostitutes and Tax Law 101), the byzantine rules involving the power to adjourn Congress and the brooding, if not obsessive, consideration of the never invoked fourth section of the 25th Amendment.[1]
Trump and Mad King Ludwig
This week after Trump claimed total authority to lift social distancing and other COVID-19 restrictions imposed by the states’ governors “when somebody’s the President of the United States the authority is total . . . and that’s the way it’s got to be” he was rebuked by Democratic governors, certain Republican chief executives and apparently even some in the Bavarian-style bunker he’s turned the Whitehouse into. He backed off the next day, but then returned on April 15 with an I could do what I want but I’ll let the governors do what they want and then blame them.
And while this was going on the de facto national COVID-19 fighter, Andrew Cuomo, joined forces with six other northeastern governors in a manner that brought into play a constitutional provision that seemingly was written for this terrible moment and to protect the people from a/this terrible President:
The compact clause of Article 1, Section 10, Clause 3 states:
No State shall, without the Consent of Congress . . . enter into any Agreement or Compact with another State . . . unless actually invaded, or in such imminent Danger as will not admit of delay.
Andrew Cuomo
When the governors realized there was no one at home in the Whitehouse to effectively fight the pandemic, they aggressively asserted the powers reserved to them by the 10th Amendment, to defend their respective states. Their right to do that was the basis of the near unanimous and bipartisan rebuke of Trump after his April 13 assertion of “total” authority. But in adeptly leading the formation of an agreement among seven states (simultaneous with a three state effort among California, Washington and Oregon) Andrew Cuomo not only raised his game and prominence (as he has daily) but brought the Compact Clause into play. That clause was meant to prevent groups of states from usurping or encroaching upon federal authority – that is unless Congress authorized it or unless the states binding together found themselves “in such imminent Danger as will not admit of delay.”
As an American and New Yorker – state, city and county – HL increasingly appreciates his governor and continues to marvel at just how wise the framers were in anticipating dire situations and dangerous presidents.
HL remembers well when he led the effort of State Attorneys General to organize a multi-state working group to enforce the antitrust laws broadly in an era when the federal agencies demurred. The states also wrote guidelines for analyzing mergers, vertical trade restraints, and to coordinate sharing information that still operates today. It was a nonpartisan project – cooperative, thoughtful, dedicated to enforcement and not unlike the cooperation described in this post (although, importantly, not a constitutional compact). That’s federalism.
Thank you Professor Farmer who knows all this because she was a major player in that previous adventure in babysitting and federalism. In those days we often turned F Frankfurter’s famous quote on its head saying “federalism is not a suicidal pact” that has so much more resonance today. HL