Last week, Hungarian President Viktor Orbán used the coronavirus as an excuse to secure emergency legislation giving him permanent dictatorial powers. President Trump has long admired Orbán and emulated the democracy-undermining strategies that brought Hungary to this point — demonizing opponents; seeking bogus corruption investigations against opposition politicians; using vicious rhetoric, economic pressures, and licensing threats to undermine independent media; and whipping up hatred of immigrants.
President Trump also has copied Orbán in destroying the rule of law and honest government by subjugating the executive branch of government to his will. He has made it clear to every government employee that standing up for the law or truth in opposition to Trump triggers dismissal. For example, he's conducted a campaign of retaliation against executive branch employees who dared testify truthfully to his corruption during the impeachment process, and just last week, fired the intelligence community's inspector general who followed the law by forwarding to Congress the original whistleblower complaint about his "perfect call" with Ukrainian President Volodymyr Zelensky.
Trump's autocratic approach to expertise has facilitated the spread of the coronavirus, as he dismantled the apparatus in place to prepare for and deal with a pandemic and caused leading experts to resign, and he has repeatedly used White House coronavirus briefings to blunt needed public health warnings by substituting his imagined "common sense" for the advice of actual experts.
Even more importantly, President Trump has proven quite willing to exploit this crisis to undermine our democracy by dividing Americans and subjugating political opposition. When epidemiologists began warning us that the coronavirus posed a serious public health threat, Trump labeled the disease outbreak a Democratic hoax. When governors besieged by the COVID-19 outbreak pleaded with him to use powers to procure life-saving ventilators, he responded by suggesting that they must praise him in order to get them. These are the actions of an autocrat, not an American president.
We seem unable to adapt to the new autocratic reality. Commentators and ordinary citizens keep focusing on the president, urging him to suddenly become competent and interested in serving the public. But Trump is only interested in serving himself and augmenting his personal power, and that will not change. In this context, the old habit of granting the president additional power to deal with an emergency will not work. He will not use that power responsibly to combat the coronavirus and its effects. Instead, he will exploit it to further undermine American democracy.
To the extent Congress has already delegated authority, it must exercise vigorous oversight. But going forward, it should recognize that Trump administration defiance of oversight authority has made it extremely hard to secure sound and lawful administration through that approach.
Congress should not grant the president any discretionary authority. Indeed, it should avoid, as much as possible, merely authorizing expenditures. Instead, it must mandate specific government employees known to be trustworthy to spend monies in very precise ways by dates certain whenever possible, with strict enforcement provisions in place to make sure the mandates are carried out.
Congress should, whenever possible, circumvent the federal government entirely and empower state governments. For example, it should amend the Defense Production Act of 1950 to authorize state governors to require production of needed health supplies at cost, perhaps with consultation requirements among states to minimize conflicts. Absent an act of Congress, states probably lack the constitutional authority to order businesses outside their borders to produce anything. But a congressional act can grant this power to states under its Commerce Clause authority, at least during an emergency. Indeed, the Founders expected states to take the lead in enforcing federal law because they did not foresee the growth of the federal bureaucracy. Still, Congress should provide that lawsuits against state use of Defense Production Act authority must wait until after the supplies are delivered and paid for in this emergency, as extraterritorial state action may trigger constitutional challenges. Congress should consider delegating to states in many situations in which it would normally delegate power to the executive branch of the federal government.
The governors of at least the most hard-hit states could band together to create a purchasing consortium to secure needed hospital supplies. They can do this informally, but if they create a formal interstate compact, Congress should ratify it.
It is very hard to face up to a health crisis, a financial crisis, and a political crisis at the same time. But Hungary teaches us that this is what we must do.
