Responses to the coronavirus pandemic may be posing a danger to democracies around the world—as fault lines in constitutional systems are exposed and some authoritarian leaders attempt to grab broad powers. Two experts on constitutional and international law — Professor Kim Lane Scheppele of Princeton University and Professor Deborah Pearlstein of Cardozo Law School — join host Jeffrey Rosen to explore the governmental challenges raised by COVID-19 in the U.S. and around the world. Scheppele – one of the foremost experts on Hungary – sheds light on the country’s dangerous recent slide into authoritarianism, made worse by a “draconian” emergency law passed under the guise of combatting coronavirus. And Pearlstein shares insights from her recent work on how the outbreak can impede elections and how Congress should begin preparing for election 2020.
FULL PODCAST
PARTICIPANTS
Deborah Pearlstein is a professor of constitutional and international law at Cordozo Law, and the Co-Director of the Floersheimer Center for Constitutional Democracy. Her work on national security and the separation of powers has been widely published, and she was previously a research scholar in the Law and Public Affairs Program at the Woodrow Wilson School for Public and International Affairs at Princeton.
Kim Lane Scheppele is the Laurance S. Rockefeller Professor of Sociology and International Affairs in the Woodrow Wilson School and the University Center for Human Values at Princeton University. Since 2010, she has been documenting the rise of autocratic legalism first in Hungary and then in Poland within the European Union, as well as its spread around the world. She’s previously taught at universities around the world including the University of Michigan where she was a tenured political science professor.
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
Additional Resources
- “Other People’s PATRIOT Acts: Europe’s Response to September 11” by Kim Lane Scheppele
- “We Badly Need Congress to Act. We Don’t Need Congress to Act in Person.” by Deborah Pearlstein
- Defense Production Act
This episode was engineered by Greg Scheckler and produced by Jackie McDermott. Research was provided by Michael Markus and Lana Ulrich.
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TRANSCRIPT
This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.
Jeffrey Rosen: [00:00:00] I'm Jeffrey Rosen, President and CEO of the National Constitution Center, and welcome to We the People a weekly show of constitutional debate. The National Constitution Center is a nonpartisan, nonprofit chartered by Congress to increase awareness and understanding of the constitution among the American people.
Over the past few weeks on We the People we've explored, how the coronavirus is affecting the function of government, the exercise of constitutional rights and more. We've been focusing on the US but today we'll broaden the discussion to discuss how the pandemic is impacting the health of democracy around the world. How responses to the virus led the government overreach? If so, what constitutional checks exist, if any? We'll dive into these questions with two of America's leading experts in international and comparative constitutional law. It's such an honor to have them back on We the People, Kim Scheppele is the Laurance S. Rockefeller Professor of Sociology and International Affairs in the Woodrow Wilson School and the University Center for Human Values at Princeton. Since 2010, she's been documenting the rise of autocratic legalism first in Hungary and then in Poland and it's spread around the world.
Kim, it is wonderful to have you back on the show.
Kim Lane Scheppele: [00:01:21] Lovely to be here. Thanks.
Rosen: [00:01:23] And Deborah Pearlstein is professor of constitutional and international law at Cardozo Law and the co-director of the Floersheimer Center for constitutional democracy. Her work on national security and the separation of powers has been widely published, most recently in the National Constitution Center Atlantic's battle for the constitution website. Deborah, it is an honor to have you back on the show.
Deborah Pearlstein: [00:01:46] Thank you. It's great to be here.
Rosen: [00:01:48] Kim, let us begin with the question of electoral disruptions here in the US and around the world. Just this week, the US Supreme Court refused to extend voting deadlines in Wisconsin primary and several European countries, including Italy, North Macedonia, Serbia, Spain, and the UK have postponed national or local elections in the wake of the pandemic.
Tell us about how the US response to the pandemic is similar or different from other countries when it comes to the disruption or postponement of elections.
Scheppele: [00:02:28] Well, yes, this is a very serious problem. So the problem with the pandemic is that we're all supposed to stay home, and the problem with voting is that you usually go out to do it. So the question is how it is the countries now adjust to the fact that people probably shouldn't be going to the polls? It's extremely complicated to organize an alternative to an in-person ballot and it usually takes them a lot longer than most of these countries have had. So putting it charitably, if you're trying to run free- free and fair elections, probably you should try to postpone them until you can get them right.
Now, of course, as soon as elections are a topic that politicians have to make decisions about, there's also an opportunity for gaming them, and unfortunately I think this is what we're seeing in a lot of different places. So this primary that was in Wisconsin today, on one hand, you know, most of the rest of the country looks at what was happening in Wisconsin and they say, "Well, the nomination for the democratic presidential candidate is pretty well settled. There really isn't a competition on the Republican side, so what's the big deal?" And the big deal in Wisconsin was that there was a Supreme Court seat up for grabs and the Supreme Court in Wisconsin has been a very active player in the partisan hardball politics that characterize that state.
I'm not entirely sure why they didn't start earlier by probably should have, but over the last week the democratic governor has been trying to extend the, at least the amount of time that people have for getting absentee ballots in, and the Republican legislature has been vetoing any effort to extend the election. And there's one fact that just shows you exactly why that's happening and that is that it's the rural parts of the state which don't have big lineups at the polls that tend to vote Republican, and it's the cities that have the crowded ballot places that tend to vote democratic. So as the election was about to start this morning, one of the things that we could see was that there were supposed to be five polling places in Milwaukee when normally there had been more than 200.
And a lot of that was because the poll workers, many of whom are over 60 and therefore in a high risk group were not showing up. But we know that Milwaukee is one of the big sources of democratic votes in that state. So it's not neutral when the courts refused to allow the absentee ballot deadline to be extended, it has partisan effects and all of the players in this drama have been playing to their partisan advantage. Now, what we're seeing in other places in, in Europe in particular is that elections need to be postponed. And so far because the election machinery is in the hands of independent experts there hasn't been as much gaming of just these postponements of elections.
But there are two places where we really have to worry. So one is that there was a state of emergency declared in Hungary a week ago, and as part of the state of emergency all elections are indefinitely postponed and or canceled for the duration of the emergency, and the emergency has no end point. And then in Poland, which has a presidential election coming up on May 10th the government decided, the government decided because its candidate for president is leading but only just barely in the polls.
The government decided that high risk individuals, namely those over 60, will be permitted to vote by mail, but lower risk individuals, namely those under 60 will have to show up physically at the polls. Now surprisingly, it's the over 60 crowd that votes overwhelmingly for the government so this is hardly a neutral rule when you get down to it. So you are starting to see that when people have to make decisions on the fly, they tend to, to make decisions that go to their partisan advantage. So this is a dangerous situation for democracy.
Rosen: [00:06:28] Deborah, Kim raises a powerful point by contrasting the US decentralized system which puts voting and control largely of the states. And that of autocracies like Hungary and now Poland, which can game the system at the national level. As you look forward to the kind of election controversies that the US is likely to face between now and November what are the big ones you're looking at and, and how might they play out? And you please contrast how the US is decentralized system will deal with them as opposed to other democratic systems around the world?
Pearlstein: [00:07:02] Great. So while it's true that for the most part and indeed to large extent, elections in the United States are regulated at the state level federal elections can be regulated and are regulated at the federal level. So the single biggest hurdle or challenge we have coming up of course is the 2020 presidential election which is in November. Now, that sounds like it's a long way, way in some respects. But in fact for two reasons it's not that, it's not that far off. One is because if you look at the sort of CDC and others who were forecasting the likely trajectory of the virus we're dealing with now, they tend to go in waves and containing them requires making sure that you don't let everybody out of confinement, so to speak, to sooner quarantine too soon and trigger another wave.
In the 1918 flu, it was the second wave of the virus that was really the most deadly. So talking about various restrictions on movement in place, at least in certain places geographically for a long time over the coming months is not out of the question. And the second reason is preparing for big national elections requires a lot of advanced preparation and a lot of times, so if you wanted to do something critical and, and most election experts recommend that we implement mailing voting for the upcoming federal election, which would require a law passed by Congress to mandate.
If you wanted to do that, it requires a lot of time and money to print ballots. And so the need for Congress to act soon, sooner rather than later to mandate that all states allow, for example, no fault absentee balloting. Many states allow you to file mail in ballots for any reason but some states still say, "No, you- you have to have some specific reason before you can be permitted to file a mail in ballot."
Getting Congress moving on that is, is essential and equally funding the states for what will be an enormous additional cost to conduct that election given the cost of mail in ballots and probably also some in-person voting. So we have an enormous logistical challenge ahead. Although the US electoral system has been groaning under various assaults for a while, efforts to suppress votes, foreign interference, a lot of threats.
Here it is going to require an enormous amount of proactive effort, including by the federal government to ensure sort of a baseline level of fairness and legitimacy. And so it's, it's action rather than inaction that, that is going to be required at the federal level. That's what we hope to see in many other countries. And in many ways, right, action is bad. What you want to see is predictability, legitimacy.
And when elections are canceled or postponed, that can be a good thing, particularly if it's in the interest of public safety. But the key there is to look for a date certain that the election has been rescheduled for. And that's what makes it sort of in contrast to what we've seen with some of the primary states here in the United States. Some states have postponed their primaries from the height of the virus until a few months down the road that's a sensible move. What we've seen in Hungary is so concerning because the elections have been postponed indefinitely.
And that's one of the, the key risk factors, I think when you talk about how big of a threat is this to democracy in action where action is required to preserve fairness and equally postponement with no set plan for how elections will ultimately happen. And, and we're seeing some of both.
Rosen: [00:10:52] Thank you for that distinction between action and an action on that helpful contrast between the US and Hungary. Kim, you think it's fair to say, or the America's leading expert on democracy in Hungary and the threats that it's under. And you recently wrote one of several commentaries or bonds emergency in the Hungarian spectrum which describes the new law that Orbán put through the Hungarian parliament that would give them, as you say, dictatorial powers under declaring a state of emergency to fight the coronavirus. Tell us about what Orbán is doing in Hungary and what lessons it presents to the rest of the world.
Scheppele: [00:11:28] Yeah. Well, Hungary is now the poster child for what not to do in a, in a virus. So Hungary Viktor Orbán, has been the prime minister of Hungary for 10 years and that entire time he's been steadily consolidating power steadily removing checks and balances steadily inserting into all the independent institutions, including, for example, the election commission, public prosecutor's office. The whole judiciary has been just filled with people who owe their allegiance to him.
And so even before the virus came along, Hungary was already a very sick democracy. It had just been registered in the varieties of democracy datasets, something political scientists use a lot. It had just switched from a democracy to what's called a competitive authoritarian regime where they pretend to have elections, but the results are never in doubt.
So Hungary had already fallen from grace as a democratic country before the virus. And then when the virus hit Hungary has now enacted the most draconian emergency law that I know of anywhere in the world. What the law does is it gives Viktor Orbán unlimited decree power from an indefinite amount of time over an unlimited number of subjects. It essentially sidelines the parliament and it also sidelines the courts. So Orbán can govern literally by himself with no one around to tell him no.
It's been his dream for a long time now he's been able to realize it, but it's an overreach even for him, it's a little surprising that he would do something that's so extreme. So one of the questions is why he's taking that step right now? So one reason is that everybody else is taking steps like this and if everyone in the world is declaring a state of emergency to handle the virus, like what's one more emergency among friends so to speak. So I think he's been a bit surprised that you know, the world is actually paid attention, that this one is different.
But I think actually what's, what's really more going on here is that Victor Orbán's regime is highly corrupt and mu- much of the money that the state has, has gone into private pockets. The National Health System has been really the one of the biggest casualties of the corruption in Hungary. And even before the virus came along, Hungary was showing decreasing life expectancy every year. Hungary had the highest cancer death rate in Europe. Hungary had the highest rate of lots of chronic diseases that it hadn't been able to kick, which is to say the health of the Hungarian population was terrible before the virus came along and the medical system has been crumbling under the weight of underfunding.
So if you add a virus to that, what's going to happen is that the Hungarian health system is going to collapse. And I think Orbán realizes that even though he's been able to exercise near dictatorial powers to date, there's a point at which when your relatives are dying, you no longer give the prime minister the benefit of the doubt.
And so by claiming unlimited decree powers, I think he's getting ready for what happens when the healthcare system collapses, when his party no longer backs him and when he's going to have to rule by force. And if I can say, we almost have a military dictatorship in Hungary already in one week since the law was passed, as soon as the law was passed, they put a military commander in charge of every hospital.
And in fact, they've been, you know, playing funny things with numbers and doing a lot of other things. But also that means they have a military person in the chain of command in every hospital and they've deployed teams of soldiers to at least 150 private companies to "keep the economy going". But in no other country is that being done with the military. So the worry is now that Orbán is pre-positioning troops all over in critical locations so that when and if the protests come and try to topple his regime, he's ready for major repression in return. It's a really dire situation.
Rosen: [00:15:27] Deborah, authoritarian leaders all over the world are seizing the crisis of the virus to centralize power in the Philippines, parliament passed legislation allowing President Duterte nearly limitless emergency powers in Cambodia. There's a new draft law in national emergency that would give the government unlimited access to Marshall power while curtailing fundamental rights. Can you tell us about other examples around the world of the centralization of power and the abridgment of fundamental rights that results?
Pearlstein: [00:15:59] Yeah. So let me here distinguish between countries in which we've seen democ- countries which are nominally democracies but that have been facing troubles or efforts to consolidate power and eliminate checks and balances that well predate the virus and the emergence of the virus and countries that are relatively healthier democracies. So democracies that were already deeply troubled before the virus came along are, as Kim mentioned, Hungary, Poland is another one. India, Israel Turkey certainly have also been struggling with a variety of of assaults on democracy in various ways.
And what do you look for when you, when you say assaults on democracy, what does that mean? Well, efforts to in one way or another, undermine independent governmental structures to undermine the independence of the legislature or the courts or indeed the bureaucracy inside the executive branch that's responsible for expertise in law enforcement. You look for assaults on free and independent media and civil society, nonprofits that, that are advocate in the public interest and you look for, as we were just speaking about free and, and legitimate and fair elections.
And so in a lot of the democracies that I was just mentioning where you had seen already sustained assaults against these independent structures or the media or so forth one, the most common things we're seeing in some countries are efforts to silence or otherwise quash the media, right? So to control speech in some way.
We certainly see this in places like China and Russia where one would expect to see this under normal circumstances. But we're seeing efforts to quiet dissent and, and silence opposition or critics of the government. Even in some of these other places where we might have hoped that had they been more robust in democratic traditions heading into the virus crisis, you wouldn't necessarily see that.
So even in places like India, which has taken a real troubling turn in the last few years under Modi you're seeing that more there, you're seeing it at least attempts at it in places like Israel where we might've otherwise hoped not to see it. So that's I think one set of examples. Are we seeing that yet here in the United States that is efforts for example, to sensor free press, to sensor expertise. I think so far we've seen attempts to do that and the, their attempts that have not ultimately been very successful.
So in the early days, the virus, you saw the administration nor the president filing lawsuits against, you know, large media companies alleging slander and things like that. These are lawsuits that are not likely to succeed at all. But nonetheless, they put pressure on those structures, you certainly see efforts by the president to criticize the, the free press to criticize the media. And you see on occasion, efforts by the president, even in his daily briefings to sort of prevent the experts in the federal bureaucracy, the otherwise independent experts from saying what they think Dr. Fauci from speaking and so forth.
But for the most part, these efforts haven't been successful. I think in the United States, the single most concerning sign has been what we've seen just in the last week with the president's efforts to fire or remove or eliminate the role of internal inspectors general in the executive branch. So silencing and removing and, and sort of marginalizing expertise. We've seen this a great deal in India and we're seeing it here to an extent in the United States as well, where just in the past week, the president has removed the inspector general for the intelligence community, has sharply criticized the inspector general for HHS, Health and Human Services.
And just today fire the inspector general at the Department of Defense who was to be in charge of making sure that the government's efforts to spend the $2 trillion that Congress has recently appropriated for virus response and economic support is spent in a public oriented way. And removing these internal checks and sidelining experts and sidelining independent checks even within the executive branch is one of the signs that I think is most worrisome. I think it's the most troubling sign we've seen so far here in the United States.
Rosen: [00:20:29] Kim help We the People listeners understand how different democracies respond differently to the crisis. I recall a wonderful article that you wrote after 9/11 called Other People's Patriot Acts, it was published in 2004 and we people listeners should check it out. And in that piece you argued that the response of Britain and Germany to 9/11 deferred and it was consistent with their previous response to emergency situations.
Britain continued its past practices of treating terrorist offenses is an exceptional matter in the past, violated the standards of the European Convention and Human Rights while Germany maintained careful constitutional protection which should had also done before the attacks. Are we seeing a similar pattern in the wake of the virus and as you can trust the US with different countries in Europe such as France or Germany or whatever else you think is instructive is the past prologue?
Scheppele: [00:21:26] Yes. Well, I certainly think that in an emergency you see a country's values frame much on display. And so when a country is already in democratic trouble, as we've discussed before, that trouble is going to magnify in a time of emergency. And when a country has a really solid and highly respected and fully constitutionalized democracy then you tend to see that on display. So I think it's not surprising, for example, that the country that is beginning to look like the one that has the most successful response to the virus, both in terms of lowest death rate, lowest spread rate, et cetera, is Germany.
And a lot of that was because as soon as they saw that the problem had arisen, they started testing like crazy contract tracing. They didn't overreact. In fact, even now they don't really have a full lockdown, they just closed all the places people might go to [laughs] and they have limited the size of gatherings.
But it- it's not as repressive a general policy as you know it has been in other places and yet Germany has the lowest death rate and the lowest spread rate. A lot of the lowest death rate also has to do with the fact that they take every case seriously and they treat them. So- so here we don't have the hospital capacity, so people are sent home and it's only when they get really, really sick at home and have to be taken in an ambulance to the hospital that we then do these massive interventions and then it's often too late.
In Germany, they take the cases much more seriously, much earlier in the process so they can head off the serious turns that tend to happen, you know, midway through the course of this disease. So Germany, you know, has just put together a really sane, evidence-based, no drama system. [laughs] and yet what we see in a lot of other places is a system that falls apart, that is using emergency measures that is using really extreme repressive activity.
So not only our whole populations locked down but they're find when they go out, they, you know, military are policing the streets and things of that kind. You get that in places where people won't just follow a government suggestion because they trust the government, you know, and so you start to see that, you know, some emergency powers are just overreactions.
Now, you know, again, I keep coming back to Hungary because it's the worst case, but one thing I didn't mention earlier is that another feature of this Hungarian emergency regime is that anyone who spreads false or distorted information during the course of the pandemic, actually it's not even that clear that it's not just a general criminal law ban on false and distorted facts.
Anyone who spreads those can be found guilty of a criminal offense and punished by up to five years in prison. And last year there's this coronavirus soar in Hungary that sort of shows up and tells you how many cases there are. And the last time he announced this, in the first week, there were 32 cases brought against people for spreading false and distorted facts. Now, those are what it's done is they, so far haven't gone after journalists. They're going after the people who are getting quoted by journalists.
So all the sources have dried up. So it's, I work a lot with foreign journalists on Hungary and right now no foreign journalists can get a doctor to talk to them about what's happening in the hospitals because all the doctors have glammed up because of this law. So again, that's completely unnecessary in general to deal with a virus. What you've got is a kind of full scale political lockdown. And you know, a virus response ought to be a virus response. It ought to be a response to the way viruses spread, the way that, you know, we know about the things we know about vectors of transmission and the minimal efforts that it will take to control the virus while keeping civil liberties intact.
So strong and confident democracies do that with a relatively light touch and they don't need to have these draconian orders, because people trust that the government is acting on evidence based policy and they do, you know, what makes sense. But it's in these governments which have lost credibility with their publics or that are overreaching in other ways that you see these really extreme emergency powers now being used.
Rosen: [00:25:37] Deborah, do you agree that a democracy's response to past crisises will determine its response to the corona crisis? And if that's the case, how will the US constitutional system there in comparison to European democracies?
Pearlstein: [00:25:54] So I think without making sort of broad historical conclusions or coming to broad historical conclusions, I certainly agree that whatever tendency an existing government has had is likely to be magnified when facing a crisis. So you saw, for example both in Britain and the United States, the leaders, president, prime minister resisting the rapidly emerging consensus of scientists that this was an enormously serious threat, it needed to be taken seriously, quickly and to, in the United States president's case, call it a hoax, right? In Prime Minister Johnson's case, sort of downplay the initial threats.
And those early decisions which are consistent with tendencies that those leaders have right to say, "Fake news, this is not real, I'm going to deal with the facts that I want to deal with." Those decisions have had as Kim was suggesting, pretty catastrophic consequences in virus response, where Germany and, for example, South Korea have succeeded, is in early on responding the way they tend to in technocratic fashion in which fact-based, evidence-based, process-based reason based policymaking still prevails.
And they're able to take narrower steps by implement and fewer burdens on civil liberties by implementing widespread testing early with testing. You can isolate those cases not entire populations where you don't have testing or haven't begun at early enough, as was the case in Britain and the United States you've lost that option. That horse is already out of the barn, so to speak, and you can no longer, right, once the virus is being spread generally in the community, you can no longer through testing, just isolate individual people and hope to contain the virus that way, you have to impose these very widespread and burdensome lockdowns.
So in that respect, I think we're certainly seeing governments act according to their tendencies. The particular dynamic that happens in in pandemic control as a national security matter is that the longer you wait to take any action the more burdensome on individual rights the action the government ultimately has to take is going to be. And where the democracies that have failed, have fallen down is in waiting too long to act.
And the democracies that have succeeded like Germany, like South Korea and others allowed science to, to lead the way. And in that we're giving voice to still effective independent checks of expertise and, and public health information that our democracy in recent years has really, has really compromised.
Rosen: [00:28:32] Kim, on the subject of under reaction, you have a forthcoming piece under reaction in a time of emergency America as a nearly failed state in that piece you say in the United States today in the middle of the coronavirus pandemic, we're witnessing an appalling lack of emergency measures deployed at the federal level. You note a series of federal authorities that the president has at his disposal from the 1950s defense production act to the pandemic and all hazards preparedness act, but you say that the Trump administration is wrongly failing to utilize those powers. Tell us how you think we are under reacting and why.
Scheppele: [00:29:11] Well, this has been actually one of the sort of exceptions to my general principle that an emergency brings out what a state is already like. You know, we've had a president now for the last three and a half years who has not exactly honored constitutional norms as he found them, and he's found many excuses to stretch them and to do quite dangerous things. I agree with Deborah that the firing of these inspectors general who are really the watchdogs in our federal agencies who are supposed to be able to be the, the neutral, fact-based folks who call out when they see that laws are not being followed within these agencies for Trump to fire them is really pretty terrible.
That said, what you would guess watching, you know, President Trump's other activities is that he would love this emergency, right, because he could take all these powers, he can do all these things, it enlarges the scope of the presidency. And instead what you've seen is this odd shrinking of presidential responsibility by basically refusing to do the things that a president should do in an emergency.
So this is kind of the flip side of Viktor Orbán doing all these things that are actually aren't required by the emergency and have nothing to do with it at all. Instead, you know, what we see with Trump is that he takes the emergency and he acts like it's none of his business. You know? So we have a national stockpile of equipment to be used in a pandemic that has included ventilators in masks and you know, protective personal, personal protective equipment, I guess it's called.
And yet the federal government was refusing to, to distribute that. There was the center for disease control, which we're supposed to be creating a test for the pen, you know, for this particular virus. And the government could have given permission early on for states and private companies to also develop parallel tests that order never came.
And we could sort of go through a whole series of other these other powers that the federal government has, that the states don't have. For example, ordering private companies to redirect their production to producing masks and ventilators and the other things that we need. None of that was done at federal level. So instead what the president did was to turn this thing into the hunger games, right? And say to the state governors, "You're on your own."
Now, there's a reason why we don't usually have the states doing this, first of all, because they compete with each other and bid up the price. And that at a time of when we're going to have a massive economic catastrophe following on the health catastrophe is really crazy. Also because most state constitutions do not permit states to do deficits spending, whereas of course the federal government can. So I don't know what states are doing but they are just out there spending money and they are probably going to be in violation of their own constitutional balanced budget requirements as they do this.
But what else can a governor do? This is where you need the federal government with its possibility of countercyclical spending to be able to buffer this kind of massive cost. And finally, if you have governors out there competing with each other, it doesn't guarantee that the scarce resources we need actually get to the places where they are most needed right now. So this is a set of rolling waves that's going to hit its peak at different times in different states. But any rational governor who is after or only elected by the citizens of their own state will want to over prepare and get out ahead of the curve when that may actually make it much more difficult to fight the pandemic in the neighboring state.
So this is absolutely not a situation in which you really want to push this responsibility down to the lowest level. And so this is something where the federal government should have stepped up and tried to coordinate this to make it a more effective response. So that's why it's just puzzling that Donald Trump, despite you know, taking all the air time and having these daily press conferences full of misinformation, nonetheless refuses to use the powers that he has, which makes me wonder just because you know, your podcast series is to think about big constitutional questions.
You know, how is it that, I mean, is there, is it possible in a constitutional system to force a chief executive to do the things he's supposed to do? Right? We've had this problem throughout the Trump presidency where Trump has refused to fill high offices, you know, particularly at the state department but also otherwise, he's appointed acting directors of things, which means they don't have either Senate confirmation or job security.
He's done a whole series of things that are failures to act in prescribed ways. And so we've often, and I'm as guilty of this as the next person, we worry about state overreach and we worry about the Viktor Orbán type of executive who grabs all the powers that he can. But what if you have an executive that undermines the constitution by refusing to use the powers that he should? It's actually something that we don't have a lot of law about, we don't have a lot theory about and, but it's now something I think we really do have to think about.
Rosen: [00:34:16] Deborah, do you agree with Kim's extremely provocative claim that the president is not exercising powers that he should? Do you have any thoughts about whether he could be forced under the constitution to exercise those powers? And it's especially interesting to hear your answer because you've written so powerfully about executive overreach in wartime and have argued that congressional support or lack of support is enormously consequential in shaping our president's willingness to exercise a force abroad. To what degree is congressional response crucial in shaping the president's behavior in the time of the crisis?
Pearlstein: [00:34:56] Great. Well there's a lot to say there. And let me first start with the... I- I completely agree with Kim that from a public health public policy point of view the administration's response to the crisis has been catastrophic in, in any sort of standard term right? So the United States heard beginning at the very beginning of January when the Chinese counterpart, head of the CDC in China called, our CDC head here in the United States literally in tears and said, "This virus has broken loose, we have not contained it." it was two months really between that phone call and the time that the federal government, the executive branch began taking any really dispositive action or even most importantly acknowledging the existence of the, the virus and the nature of the threat it posed.
So there is simply no question in my mind that, that the federal response has been inadequate that, that it, that the executive branch response has been inadequate. But two caveats I want to pose there. One is the executive is not the only branch of the federal government. And when Kim says, is there a way of forcing the executive to take actions that it should be taking? The answer is yes, absolutely and it's called Congress.
And while Congress has been in the habit over the last certainly 70 years and really last century of delegating power to the president directly, not even just to agencies but to the president, giving the president enormous discretion to use powers if the president believes that it's in the national interest to do so. Most of those laws and laws like the Defense Production Act, which is incredibly important that Kim was mentioning that the president has the most part not used laws like the Defense Production Act are exactly that kind of discretionary delegation of power.
The president can use it if he determines it's necessary or not, but Congress is also entirely capable of constitutionally and otherwise passing laws that simply mandate certain steps be taken. And those actions, there's some bills pending on the Hill or that were pending on the Hill before Congress departed, which is something we should talk about separately. The president doesn't have to dissolve parliament, the parliament here just left.
But there are measures like that pending and there is an enormous amount more that Congress could be doing and certainly has the constitutional power to do, to compel action in the federal government that it hasn't yet done. The other point I wanted to make here is just on the question of how to think about the nature of the executives response or non-response here which is fascinating and indeed right, not what one would necessarily predict would happen if the president had an anti-democratic agenda.
Right? And many people have criticized the Trump administration for for trying to disable independent checks on and, and I have been among them to disable independent checks on the executive. So if one were expecting to see that happen here, one would have imagined more efforts along those lines or more efforts to assert power rather than simply standing back. And here I want to be careful because I think we're just now beginning to see emerging what the nature of the executive responses and it's not inaction or it's not just vast claims of power but it's doing two things that I think can be equally undermining of democratic interests.
One is inaction where action is essential for protecting democracy and the election example, the protecting election example we talked about before, taking actions to protect the integrity of the November 2020 elections, taking actions to prevent states from suppressing the vote, failing to address those problems which everybody can see coming and indeed we're witnessing unfold today in Wisconsin.
Failing to take those actions is indeed anti-democratic of itself. The second way in which we're seeing, I think really concerning anti-democratic tendencies emerge in the executive is in what appear to be steps to make corruption fraud, graft in the federal government easier. So it's not that the president hasn't mentioned the defense production act at all, but what the president has done with it is use it as against particular individual companies, not to assess United States capacity to produce, for example, respirators across the board and then promote the production and allocate those respirators where they best and are needed, allocate those respirators where they are needed most when they are needed.
But instead to mention the Defense Production Act in the context of particular negotiations with particular companies like GM, like 3M and at the same time to disempower and reject inspectors general and even congressional oversight efforts to supervise the expenditure of the $2 trillion in funds Congress just appropriated. And that combination of using laws strangely and not in the way they were intended and lifting constraints and oversight on the executive branch exercises those laws also raises a lot of alarm bells from, from corruption and the integrity of institutions which are just as essential to democracy as free elections.
Rosen: [00:40:32] Fascinating. Kim, your thoughts on Deborah's very interesting suggestions that both the misuse of laws for purposes for which they weren't intended in the removal of oversight functions may lead to corruption in the United States. And in the course of comparing that corruption to some of the corruption we're seeing in the wake of the virus around the world, of course, I'm curious about your own thoughts about whether or not the president could be compelled by Congress to exercise the powers he's refusing to exercise.
Scheppele: [00:41:04] Well, this is the, I- I think Deborah's right to say that the, one of the ways the president can be compelled is that Congress can pass a law of compelling it, but of course he can veto that. So, you know, it depends on how determined he is not to be compelled. And I think this is a president that has decided that he will do what he wants, he does not exactly think like a lawyer. So you know, he might even sign a law compelling him to do something and then forget to do it.
So, you know, we're not really dealing with somebody who takes legal advice very easily or someone who really considers the constitutional consequences of what he's doing. That said, you know, I think one, among the many reasons why we worry about checks and balances, you know, one is just to maintain the connection between the democratic public and their representatives but the other is to prevent corruption. And the more that the executive branch comes out from under all of the controls that, that are attendant on the spending of federal money, the easier it is for federal money to be spent in such a way that, you know, goes to friends and cronies and whatever because who is there to tell them not to, right?
And so this is one reason why the firings of these inspector generals, especially the one that defense today, just when this massive and, and health and human services just when this massive amount of money is going to come sluicing through those channels I think is really, really dangerous here. And also of course, the Congress tried to build in this classic example of commanding the president to do something. The president is supposed to appoint an inspector general to oversee these funds, and the first thing the president did was to issue a signing statement that said he didn't see why he should do it.
You know, now he's actually named somebody, but nobody actually knows whether that's, that person's really gonna take the job seriously in light of the signing statement. So, presidents in this, in this country have more theo-, more theoretical than real constraints when it comes to others ordering them, you know, how to pow and what to do. So, you know, what I'm very concerned about also is that there's sort of a bandwidth problem. And this is something that I see in common between the two places, I, I, I look at most closely, the US in Hungary where both Trump and Orbán have just so flooded the airwaves with so many horrible things at once that, you know, when, when Trump and fired the inspector general of HHS last week, it wasn't a page one story because there were so many other things that were going wrong on the same day.
And so one thing that, that executives can do if they're trying to get out from under oversight is just to blatantly go ahead and do whatever but to do so many whatever's at once that, you know, everyone has to pick their battles and some of those whatever's are going to get through. So, so I think that's another strategy that we see happening, that's certainly what Viktor Orbán stun Kaczyński in Poland has done the same Modi, has done this and in, in India. That basically, you know, the journalists can't keep up, the journalists are also sort of under threat, they're being badgered and harassed and threatened in various ways.
So literally you can overpower the system of checks and balances. I also wanted to other to say, say one other thing about this in the context of the virus in particular. One thing we've seen because Boris Johnson has now gone into the hospital, you know, because he's been infected and obviously the infection is a serious one where you know, he's being, you know, fed oxygen and they say he's not on a ventilator, but you know, it's not so clear that the, that number 10 is, they say has really been very straightforward with the public about exactly what his health situation has been.
It's really interesting to look at the different responses of the three leaders that have been exposed and tested. So [inaudible 00:45:49] actually was exposed because a doctor that treated her just gave her a vaccine was found to be positive. And what she did was she announced it right away, she went into self-isolation, there were regular reports about her health condition and after two weeks she came out and she was fine and nobody, it didn't rattle the country because everybody knew exactly what was happening and she was modeling the behavior that she told everyone to engage in.
And that's another reason why Germany has been just pretty effective in this regard. Boris Johnson on the other hand, like Trump, you know the two of them were denying this was an issue for a long time and the British government floated this, you know, crazy concept of herd immunity. I mean it's not crazy as a biological question, it just takes a very, you know, you're willing to kill off a lot of your citizens to achieve it. And by the time Boris Johnson sort of got religion on this, he had been so careless in his own personal conduct that he was infected, the health secretary was infected, a whole series of people in his cabinet have been either under observation or tested positive.
And when he went into isolation because he had the disease, all the reports coming out of number 10 were not to be believed. And sure enough, he's hospitalized, it shocks everybody. I mean, so basically the untrustworthiness of his government has been just exemplified in the way he's handled this. So then you turn to Trump, and Trump himself was also pretty careless and shaking hands and touching microphones and you know, not really honoring social distancing in his briefings and all that kind of stuff.
And of course there've been people around him who have tested positive. So Trump's response has been, or at least the White House response has been to say, Trump is going to have everybody who comes into his presence tested to make sure that Trump can't get it from anyone. And you look at that and you think, "That's the behavior of a King, right? Who wouldn't want that for themselves or their loved ones?"
And especially when we're in a context in which testing kits are in short supply, why should it be the case that every single person who comes in contact with Trump gets tested? But lots of people with major symptoms around the country can't get a test, you know, it's like having a taste test or who will decide whether there's poison in your food and it doesn't matter what kind of consequence for the taster or everybody else around you.
It really is this kind of kingly behavior that I think really exemplifies the Trump administration, and it's something that also I think exemplifies corruption at the highest levels.
Rosen: [00:47:18] Deborah, in the course of discussing congressional oversight, you raise the important question of how Congress could exercise it. And in a recent piece in just security, you've talked about whether or not Congress can vote remotely you have argued that it's essential for the constraining of executive power that both the house and senate majority leader are able to allow remote voting, they've resisted calls so far on the grounds that house leader Pelosi thinks there may be constitutional problems. I think you do not believe there are constitutional problems with remote voting. So tell us why you think Congress should vote remotely.
Pearlstein: [00:47:57] Great. So, yeah. One of the first things or indeed the first thing Congress did after it passed this $2 trillion stimulus bill was leave. And, and it's not entirely clear when they're coming back and congresses being there is essential for two reasons, right? One is to force the kind of action that we think is so important for protecting democracy and for that matter, for, for protecting basic public health where the executive is not acting.
And the second is to be there to supervise the executive and to oversee executive action to make sure that it is not corrupt and consistent with congressional desires. And while Congress has, over the years, and especially in the wake of 9/11 thought a lot about contingency operations, continuity of congressional operations, the expression goes. What it has never done is make provisions for voting remotely and there are variety of objections that get raised to this.
But one of the most common objections is to me a, a sort of puzzling one, which is and, and you heard the speaker of the house raise it, but you hear it from many quarters that I'm not sure the constitution permits Congress to vote remotely. And it is certainly true that the constitution has, for example, a quorum requirement. So both house and senate cannot take action to legislate unless a quorum is present which is defined as a majority of each chamber.
But the constitution at the same time also says that both houses can make their own rules of procedure, and the constitution gives each house an enormous amount of leeway and discretion in designing how it's going to conduct its operations with very few exceptions, like you have to record, you have to keep a journal of what you do right and make it public periodically.
So there are a few exceptions. But so for example, the quorum requirement, it has been years and years and years since there has in fact been account to make sure every time before say the house of representatives takes a vote, that there are in fact a majority of members of the house in the chamber when the vote takes place. Instead, the vast majority of what is done in the house and for that matter, the senate as well is done under rules that the house and senate have adopted providing for something called unanimous consent. That is when it is recognized that there is a majority of all members who support particular legislation, all members simply consent to assume that a quorum is present and proceed to the vote so that you don't actually have to insist that a majority of individuals are all in the house floor up for a particular vote.
The problem with unanimous consent or one key problem with unanimous consent is that it requires unanimous consent. And so we saw the $2 trillion stimulus bill that I've mentioned, the last major piece of legislation Congress passed. That was clearly supported in a bipartisan way by large majorities in the house and the senate be nearly torpedoed by a single member or representative from Tennessee who refused to give his consent to the vote without an actual, it's often called quorum call. That is with actually establishing that a majority of members are present to vote.
And what we saw there was the house leadership for- forced to an impossible choice either allowed the clear majority will in the country of its representatives to be subsumed by the interests of this single house member from Tennessee or coal scramble to call their members back to Washington many of whom had already gone home at the height of a pandemic putting their own health and the health of their constituencies and communities at risk. And what the leadership ultimately had to do in that circumstance to preserve the ability to pass the legislation was forced members of Congress to come back physically and vote against the instructions of the CDC and against all public health instructions about both not traveling and not congregating in large groups.
There is a way to just like unanimous consent has a void the the quorum requirement by the adoption of a particular rule, there is a way to define what counts as present, for example, for purposes of casting a vote. And so for example, the house could pass a rule saying so long as a member can't express their vote through a reliable technology that is independently confirmable and that has sufficient number of security checks attached to it. That, that might count as presence for the purpose of casting a vote under these emergency circumstances, and Congress can define the emergency circumstances quite narrowly and impose a time limit.
In other words, this is entirely constitutionally doable and Congress is failure so far to do it I think poses the much greater constitutional risk that we face by Congress's absence, which is the risks, the constitutional risks attached to an unchecked executive and an insufficiently vigorous federal response to a national emergency.
Rosen: [00:53:22] Well, it's time for closing arguments in this completely fascinating and rich and wide ranging discussion. It's hard to sum up, but Kim, I'll ask you for your closing thoughts, including the question of whether among the many possible overreactions and under reactions we've talked about in the United States you believe that the constitution is likely to save us?
Scheppele: [00:53:45] Well, usually the kinds of emergencies that we don't worry that much about are the ones caused by natural disasters, which includes diseases. Those are usually not the ones most dangerous to constitutional systems because presidents don't decide when they happen, it's pretty visible when they're over, it's pretty visible what powers you need in the course of such emergencies and those aren't usually the ones that topple governments. You worry much more about the kind of invisible conspiracy where the opposition is rounded up when some strange charges or where you get an overreaction to a, to an actual attack as after 9/11. And we're still reeling from some of the legal effects of that.
This should not have been a danger to democracy anywhere, this kind of pandemic, precisely because it has these kind of clear outlines and it's really not under political control. But I think what we're seeing is that the virus is infecting not only people and spreading but the virus has been infecting democracies that have weak or damaged constitutions. And so if you have a system already in place that isn't robust, that hasn't been maintained, that has weaknesses or that has the possibility of political gaming, then the kind of extraordinary powers that somebody needs to, to control a pandemic are precisely the kind of powers that you see undisciplined president's grabbing or weirdly in some cases undisciplined presidents simply letting go because they just don't seem to care about the health of the general public.
The virus actually shows which constitutions are sick, and the question is how it is that we fix those constitutions? Are they going to be like this virus where you see that it comes in waves and you don't just get over it, but you may have to go on for a long time? And to maintain the metaphor, it seems to me that one of the things we start needing to talk about is what looks like a constitutional vaccine so that this doesn't happen the next time.
Rosen: [00:55:50] Deborah, your closing thoughts about whether in the many overreactions and under reactions we've talked about in the age of the virus, the constitution of the United States is likely to save us?
Pearlstein: [00:56:04] So I think even the framers would caution that parchment barriers that mere laws written on paper aren't likely to be adequate to protect assaults against democracy when they're under threat. And that is certainly true today as much as it was 220 years ago. The particular threat today is heightened because this pandemic is coming at a time, not just in the United States, but around the world when we have seen democracies under threat worldwide from a variety of sources, right?
So the problems in Hungary, in Turkey, in India, in Venezuela that we are seeing play out now in response to that pandemic were there before the virus was born and they will persist after we bring the virus under control. My hope is, I suppose, that the pandemic and government's response to it help expose and highlight the problems that democracies worldwide are now facing.
And that we recognize the importance of preserving independent institutions like Congress because you don't want to put all of your eggs in one institutional basket in the event that institution fails to respond as it should. That it highlights the importance of preserving an independent press and free science research. Because those are the most important warnings that we might get of serious threats that face us, that it highlights the importance of having a solid and legitimate system of elections that are free and fair because in the end that's the most important check democracy has on governments that are inadequately protecting the public interest.
My hope is that it'll help us pay more attention to those issues, not less. I think we've got months yet of crisis management to get through before we do.
Rosen: [00:58:01] Thank you so much Kim Scheppele and Deborah Pearlstein for a dazzling discussion of the complexity of the challenges that face constitutional democracy in the US and around the world in the wake of the virus, and thank you for opening the minds of We the People listeners to the range of challenges that we face. Kim, Deborah, thank you so much for joining.
Scheppele: [00:58:29] Thank you.
Pearlstein: [00:58:29] Thank you.
Rosen: [00:58:38] Today's show was engineered by Greg Sheckler, produced by Jackie McDermott. Research was provided by Michael Marcus and Lana Orrick. Homework of the week, Kim Scheppele's article, Other People's Patriot Acts 2004, you can find it online, a fascinating study of comparative constitutionalism.
Please rate, review and subscribe to We the People on Apple podcasts and recommend our show to friends, colleagues, or anyone, anywhere who is hungry for weekly constitutional illumination and debate. And always remember that the National Constitution Center is a private nonprofit, these are such challenging times<
