How State Attorneys General are Protecting Workers During the Coronavirus Pandemic

(This post was originally published by the Economic Policy Institute)

Attorneys general (AGs) in some states are:

Protecting nonessential workers from the risks of contracting COVID-19 by enforcing or leading implementation of stay-at-home orders.
Ensuring that workers who are misclassified as independent contractors can access the unemployment insurance and paid leave they are entitled to.
Protecting employees from losing unpaid wages.
Protecting workers seeking safe working conditions.
Providing clear and accessible public information about workers’ rights and legal protections.

Much of the coverage of state attorneys general work during the coronavirus crisis has focused on consumer protection, but many state AGs—even those without dedicated workers’ rights units—are helping protect workers facing unprecedented challenges.

These efforts come in the midst of a general increase over the past several years in state attorney general activity to enforce labor laws and advocate for workers.

Five years ago, only three state AG offices had dedicated workers’ rights units: California, Massachusetts, and New York. Since then, six other AGs have created workers’ rights units: the AGs of the District of Columbia, Illinois, Michigan, Minnesota, New Jersey, and Pennsylvania. Other state AG offices, even without dedicated bureaus or divisions, have also become more involved in worker issues in recent years. With or without dedicated worker rights units, state AGs have a range of powers that enable them to advance workplace protections.

Workers’ needs during the coronavirus crisis are urgent and stark. Some workers who are not essential are being required to work despite state or local stay-home orders. Other workers who are unquestionably essential are working without adequate protection.

A record number of workers have lost their jobs; among them are workers who have been misclassified as independent contractors and will struggle to get unemployment insurance they’re entitled to. And workers may require enforcement in order to access any legally required paid sick or family leave. On top of these challenges, there is a serious dearth of readily accessible public information about workers’ rights and legal protections, particularly in light of the rapidly changing legal landscape.

Following are examples of how state attorneys general are responding to these challenges.

Implementing and enforcing stay-at-home orders. Several attorneys general are helping protect workers by implementing and enforcing stay-at-home, quarantine, shelter-in-place, and other similar public health‒related executive orders. For example, Michigan Attorney General Dana Nessel has been particularly active in this area. Her office created a “Know Your Employment Rights” section on its website clarifying which workers are exempt from the state’s stay-at-home order and posted an online video on the subject. Her office also provided guidance to law enforcement (“Suggested Practices for Police and Prosecutors”) in relation to the orders, with a section addressing common issues encountered that include two scenarios of employers that do not fit the guidelines of businesses allowed to stay open under the order. Most recently, her office sent the national retailer JoAnn Fabrics a cease and desist letter based on the office’s conclusion that JoAnn Fabrics retail stores do not constitute an essential business under the state’s stay-at-home order. Her office also sent a cease and desist letter to the home improvement store Menards, based on its business practices that might endanger both customers’ and workers’ health, including marketing and sales designed to increase customer traffic.
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New Jersey Attorney General Gurbir Grewal publicly urged the state’s residents and businesses to comply with the governor’s stay-at-home order and publicized recent enforcement actions statewide of alleged violations of the stay-at-home order. He also issued a public warning that businesses or individuals that violate the state’s retail restrictions or stay-at-home order would face consequences: “If you’re a retail store or an entertainment center and you stay open, or if you’re a bar and you keep serving patrons in your establishment, consider this as your final warning.” New York Attorney General Letitia James issued a press release urging employees to file complaints with her office against employers ignoring New York’s executive orders, and circulating contact information for the office.

Protecting misclassified gig workers. The plight of workers in the so-called gig economy has become increasingly visible in light of the coronavirus; these workers are typically misclassified as independent contractors instead of being treated as direct employees of a business. Because workplace laws, like paid sick leave and unemployment insurance (UI), cover employees and not independent contractors, misclassification often renders these protections difficult or impossible for gig workers to access. Misclassification also means that companies are failing to pay required unemployment insurance taxes which help maintain the solvency of the system. While the recently enacted federal CARES Act created a new Pandemic Unemployment Assistance (PUA) program that will allow some temporary income via the unemployment system for genuine independent contractors, pursuing misclassification is still important because (1) PUA is temporary (expiring December 31, 2020) while regular unemployment insurance is longstanding; (2) PUA is paid by the federal government, thereby allowing misclassifying gig companies to shift their responsibility (UI taxes) to the American people; and (3) virtually all other workplace laws protect employees only.
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Massachusetts Attorney General Maura Healey recently filed amicus briefs in support of an emergency motion by Uber and Lyft drivers seeking a determination that they are employees and thus covered by paid sick leave laws during the pandemic, in order to protect themselves and the public. New York Attorney General Letitia James shared news that her office won a case in the state’s highest court regarding access to unemployment insurance benefits for a Postmates worker, previously misclassified as an independent contractor, and other Postmates workers similarly situated.

Advocating for protections for essential workers. A coalition of 16 attorneys general, led by Wisconsin Attorney General Josh Kaul, sent a letter urging President Trump to fully utilize the Defense Production Act to prioritize production of personal protective equipment (PPE), such as masks, needed by health care workers and first responders across the country, as well as respirators and needed medical equipment.

Protecting workers’ wages. Minnesota Attorney General Keith Ellison is pursuing the owner of multiple restaurants for allegedly withholding wages and tips owed to workers recently laid off because of the COVID-19 crisis. His office also provided guidance to other workers whose wages may have similarly been withheld. A group of 18 attorneys general urged the Trump Administration and the U.S. Department of Labor to suspend implementation of a new rule making it harder to find up-chain companies (like franchisers) liable for complying with wage and hour laws as joint employers. As a statement from New York AG Letitia James explains, the new rule would make it harder for hourly workers to collect back wages.

Advocating for paid leave for at-risk workers. A group of 15 attorneys general, led by Massachusetts Attorney General Maura Healey, called on Amazon and Whole Foods to immediately improve paid leave for employees during the emergency. Although the recently-enacted Families First Coronavirus Response Act guaranteed paid leave for some workplaces, it does not apply to employers with 500 or more employees.

Providing clear and accessible public information. Some state attorney general offices have played an important public education role by providing information on their websites about employee rights and employer obligations. Arizona Attorney General Mark Brnovich issued a press release informing workers of their rights under the state’s paid sick leave law. District of Columbia Attorney General Karl Racine’s office held a tele-town hall about workers' rights. Massachusetts Attorney General Maura Healey posted COVID-19-related guidance for employers and workers, including information about unemployment insurance, paid sick leave, wage payment, and other issues, available in multiple languages. Vermont Attorney General T.J. Donovan issued workplace guidance on COVID-19-related concerns, to help workers and employers navigate a range of issues that arise.
Protecting workers seeking safe working conditions. New Jersey Attorney General Gurbir Grewal and the state’s securities regulator announced an emergency action allowing New Jersey financial services professionals (who presumably usually work in New York City) to work from home (thereby enabling social distancing) by exempting them from otherwise-applicable state registration and filing requirements. And New York Attorney General Letitia James stated that her office “is considering all legal options” in response to the termination of an Amazon worker who organized a walkout to protest the company’s failure to ensure employee safety in a warehouse where workers had tested positive for COVID-19.
Protecting laid-off workers from scams. Pennsylvania Attorney General Josh Shapiro issued a press release warning of scams preying on the newly unemployed: fake unemployment websites created with the purpose of stealing personal information or harvesting the data to sell to others.

The above actions are surely only the beginning. In coming weeks, state attorneys general are likely to use their extensive legal authority and considerable soft powers in many additional ways to protect their states’ workers at this unprecedented moment.

A COVID-19 Signing Statement from the Unaccountable President

In addition to placing his signature on the Coronavirus Aid, Relief, and Economic Security (CARES) Act, President Donald J. Trump issued a March 27 signing statement that confirms two things: He remains convinced of a largely mythical conception of his Article II powers that renders the executive branch all but unaccountable to Congress. And he cannot be trusted to stand behind those Administration officials who negotiate on his behalf.

The most politically provocative claim Trump makes is that the new Special Inspector General for Pandemic Recovery will not issue reports to Congress “without the presidential supervision required” by Article II of the Constitution. The requirement of supervision supposedly inheres in the President’s obligation “to take care that the laws be faithfully executed.”

The CARES Act imposes a specific reporting duty on the Special Inspector General that is the focus of Trump’s objection. The Act authorizes the Special Inspector General to request information or assistance from any department, agency, or other entity of the federal government. Should the Special Inspector General request information or assistance that is “in the judgment of the Special Inspector General, unreasonably refused or not provided,” the Special Inspector General will be required to “report the circumstances to the appropriate committees of Congress without delay.”

A moment’s reflection reveals why the President’s signing statement actually turns the “Take Care” obligation on its head. The CARES Act explicitly requires the Special Inspector General to report agency noncooperation to Congress “without delay.” By definition, “faithful” execution of this—or any—law requires that implementation be diligent, honest, and consistent with the limits of the law. To bar or even to postpone the required reports to Congress in the name of presidential supervision would be the exact opposite of carrying out the letter of the law. It would be faithless execution.

What the signing statement seeks to invoke is a conception of executive power that entitles the President to control how every officer of the executive branch exercises whatever legal discretion Congress has vested in that officer. It is the vision now-Attorney General William Barr set forth in his June 2018 letter to two Justice Department officials regarding Robert Mueller’s investigation of Russian interference in the 2016 presidential election. It is a theory Barr has championed throughout his government service, including in a 1989 memo entitled, “Common Legislative Encroachments On Executive Branch Authority,” which he wrote as head of the Justice Department’s Office of Legal Counsel. Under that theory, “the President alone constitutes the Executive branch,” and any delegation of decision making authority to anyone in the executive branch is, constitutionally speaking, a delegation of power that the President alone controls.

This conception of the presidency would have shocked the founding generation. The very first Congress, which included over half of the Constitution’s signatories, imposed tight controls over the nation’s finances and significant reporting obligations to Congress. George Washington, who had presided over the Constitutional Convention, signed these provisions into law without any apparent objection from Alexander Hamilton, among the Framers most protective of executive power.

An Act of September 2, 1789 created the new Department of the Treasury and provided for a number of statutory officers, including, of course, the Secretary. Among the Secretary’s legal responsibilities was a “duty” to “make report, and give information to either branch of the legislature, in person or in writing (as he may be required), respecting all matters referred to him by the Senate or House of Representatives, or which shall appertain to his office.” Hamilton, as the first Treasury Secretary, was so engaged in this reporting activity that, during his tenure, the House of Representatives did not bother having its own Ways and Means Committee. No one deemed his reporting obligation to be an infringement on presidential authority.

The First Congress’s belief in a legislature’s special tie to the treasury, and the treasury’s reciprocal obligation of accountability, was not an idiosyncratic constitutional view. Almost all the states that drafted constitutions around the time of the federal Constitution excluded the state’s treasurer from close gubernatorial supervision and made the treasurer subject to legislative control. This singling out of state treasurers for legislative appointment confirms the late eighteenth century view that requiring financial overseers to report to Congress was not viewed as intrusion into executive power.

Trump’s topsy-turvy view of his faithful execution obligation, however, is fully consistent with other claims made in his signing statement limiting any required communication with Congress. Trump’s view—like Barr’s—is that Congress has no right to mandate any conditions at all with regard to how a president exercises Article II power. Thus Trump’s statement objects as well to the requirement of consultation with members of Congress regarding the selection of an executive director and deputy executive director of a new Pandemic Response Accountability Committee. Trump objects, even though the requirement of “consultation” literally imposes no obligation of acquiescence in Congress’s preferences.

Trump also objects to provisions of the CARES Act that require the Secretaries of Education, and of Health and Human Services, to make reports to Congress recommending possible changes to legislation. Trump insists no such requirements can be binding because the Constitution authorizes only the President to recommend to the “consideration” of Congress “such Measures as he shall judge necessary and expedient.” Again, there is literally no conflict between the CARES Act and the Constitution. The secretaries are not barred from clearing their recommendations with the president. This is objecting just for the ritual of objecting.

By way of contrast, consider that the immediate model for oversight of the CARES Act’s Coronavirus Relief Fund is the Troubled Assets Relief Fund enacted through the Economic Stabilization Act of 2008. President George W. Bush, whose enthusiasm for signing statements exceeded those of all his predecessors combined, signed the TARP statute into law without any signing statement at all.

But the potential damage wrought by a signing statement like Trump’s goes beyond the mere utterance of dubious constitutional theorizing or inventing conflicts where none are posed. Oversight of the Coronavirus Relief Fund was a critical point of contention between Democrats and Republicans in Congress in negotiating the terms of the CARES Act. On behalf of the administration, Treasury Secretary Steven Mnuchin signed off on that agreement. The President's insistence that he can now limit how the Special Inspector General reports to Congress says, in effect, that no one but Trump can speak for Trump. Administration sign-off on a compromise is not final if he does not want it to be, even if he cleared that signoff.

Such presidential waffling is accountable neither to the law, nor to the demands of good governance. Senate Republicans should be no less alarmed than Senate Democrats at what could be viewed as presidential duplicity. The CARES Act will not be the final piece of legislation Congress will be required to enact to help America through its current crisis. Yet getting to yes on any future deal will be immeasurably harder if the president plays fast and loose with the Constitution and with negotiators.

When a Public Health Crisis Becomes a Threat to the Rule of Law

Recent reports that the Department of Justice is asking Congress for new emergency powers to combat the COVID-19 pandemic was the news many of us have been fearing.

Among the authorities sought by DOJ, according to news reports, are the power to detain people indefinitely without trial, the power to request that federal judges pause trials already in process, and to pause the statute of limitations for certain offenses so that the government can pursue its claims up to one year after the national emergency is over. The upshot of these proposals is that someone charged with a crime, rightly or wrongly, could be detained for an unlimited amount of time and never given the opportunity to challenge the accusations against them.

If any of this sounds like it might not be consistent with our system of law, that’s because it’s not. The Sixth Amendment to our Constitution guarantees to all those accused of a crime “a speedy and public trial,” and the constitutional “great writ” of habeas corpus provides those detained a mechanism for challenging their detention before a court. The Constitution specifies that habeas corpus cannot be suspended “unless when in Cases of Rebellion or Invasion the public Safety may require it.” While President Lincoln famously suspended the writ during the Civil War, experts of varying ideological persuasions now agree that this is a power for Congress solely to exercise, and only in extraordinary circumstances.

Any attempt by this administration to enlarge its power at this time of crisis should be seen for the opportunism that it is. We’ve feared this could happen because we’ve been here before. In the wake of the horrific terrorist attacks on September 11, 2001, the “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism,” better known as the USA-PATRIOT Act, greatly expanded the federal government’s surveillance authority in the name of national security. The powers granted to law enforcement under the Act had long been on the FBI’s wish list, and 9/11 presented the precise moment to grant those wishes, and quickly.

Unfortunately, fear and panic led to a hurried process that ignored the constitutional problems and the serious risks that the over 200-page PATRIOT Act posed to our civil liberties. Today, DOJ’s requests pose the same risks. It makes no difference whether the enemy be human or viral.

Moreover, while this virus plainly presents a new and dangerous threat, it is far from clear that the powers needed by the government to meet it are new. They may already exist in a handful of emergency powers at the federal government’s disposal, such as the De fense Production Act, the Stafford Act, and the Public Health Service Act (not to mention the traditional police powers of states and localities pursuant to which they can take measures to address the welfare of their constituents). Yet these authorities have not been fully utilized. I strongly suspect that the same is true of the current powers available to the Department of Justice.

As the only U.S. senator to vote against the PATRIOT Act in 2001, I clearly recall the legitimate concerns that take hold in a crisis. At the time of that vote, however, my concern was that this appeared to be an attempt to insert an old and unrelated wish list into the new anti-terror legislation. This had the potential to fundamentally change our democracy and unnecessarily curtail American freedoms. Those of us who believe in the rule of law must defend it and stand up to this administration when it seeks to opportunistically and unnecessarily expand its powers at the expense of our liberties.

A Pandemic Is No Time for Secrecy

During a public health emergency such as the coronavirus pandemic, information about the government’s actions isn’t just necessary to maintain a functioning democracy — it also saves lives. But as the nation learns more about the Trump administration’s costly failures to prepare for the pandemic, there is another danger that could exacerbate the outbreak, and that is a lack of transparency.

Among the multiple missteps, missed chances, and questionable decisions of the Trump administration during the early days of the U.S. coronavirus outbreak was the order to make top-level coronavirus meetings classified. That decision hampered the government’s response by restricting key information about travel restrictions or the scope of infections and excluded top experts who lacked the necessary security clearance.

Officials told Reuters, which first reported on the series of classified meetings at the Department of Health and Human Services, that the order “came directly from the White House.” Another official said, “It seemed to be a tool for the White House — for the [National Security Council] — to keep participation in these meetings low.” Such a motivation tracks with the White House’s excessive focus on message control and political fallout. And, according to Reuters, the classified discussions were held beginning in January, a time when the president and his allies were dangerously downplaying the coronavirus threat.

As of this writing, the administration has not released a defensible justification for its decision to classify these meetings. Indeed, the power of the federal government to withhold pandemic-related information from the public is legally tenuous at best, especially if, as Reuters’s sources implied, the classification order came in a White House directive.

Analogizing this situation to a Freedom of Information Act (FOIA) request highlights the questionable reasoning behind the government’s decision. When the government responds to a FOIA request, it may only withhold information that falls within one of nine statutorily permissible exemptions. For instance, confidential information that would constitute an invasion of privacy or endanger law enforcement personnel may be lawfully withheld.

But, presumably, these coronavirus briefings do not contain personally identifiable information of individual patients, nor are they likely to contain information that could endanger law enforcement professionals. In fact, these briefings implicate only one of those exemptions — exemption 1, which protects classified information from disclosure. That is, because the briefings are classified, they may be kept from the public. But why are the briefings classified at all?

As national security experts have noted, it is unclear whether the information in these briefings merits classification in the first place. In order to be considered “properly” classified, information must meet certain requirements: The government must give a plausible and logical reason as to why disclosing the information would damage national security. So far, the Trump administration has provided no such reasoning, presumably arguing that disclosing this information could harm national security. But by failing to state its reasons, the administration undermines the legal basis for its decision to keep these briefings secret.

Given this administration’s history of restricting information, it appears that classification here is intended not to protect national security but to limit public scrutiny of the government’s response to the outbreak. Indeed, a bioterrorism threat is the more appropriate situation in which public health implicates national security, justifying classification. That is not the case here.

This isn’t the only example we’ve seen of the government withholding information from the public related to coronavirus. When it was announced that Gilead had secured “orphan-drug” status for a potential treatment for coronavirus — a designation that provides market exclusivity for drugs that treat rare diseases, which Gilead subsequently asked to be withdrawn following public outcry — the Food and Drug Administration refused to disclose the date Gilead had filed for this status, contending, questionably, that it was confidential commercial information.

These actions raise serious concerns about the administration’s potential to hide important information at a time when government transparency is vital. Americans self-isolating and caring for loved ones can already see the dramatic effects public health decisions have on our day-to-day lives. Holding officials accountable for their actions is critical, particularly during emergencies when governors, the president, and agency heads are exercising broad powers without facing the normal checks and balances. And with states now being forced to compete for limited resources thanks to inadequate federal assistance, transparency in how state and local public health officials are responding to the crisis is just as important.

For records that haven’t been legitimately classified, the Freedom of Information Act and state open records laws can provide a valuable window into the government’s actions. Our organization, American Oversight, has already filed more than 100 federal and state public records requests to shed light on the administration’s failed testing rollout, its troubling communications strategy, and the impact of the virus’s spread on vulnerable communities. Where necessary, American Oversight is also prepared to fight legally questionable redactions and withholdings, including those based on the administration's abuse of the classification process.

Of course, the current crisis may present some severe limitations on the ability of offices, particularly smaller state and local offices, to meet their transparency obligations. Some are to be expected; for instance, we have inserted language in our requests to make it clear that we should not expect offices that lack dedicated staff for searching records to respond to requests during the peak of the crisis, and are engaging with records officers to accommodate reasonable concerns. But there remains the danger that officials could use the current emergency to skirt those obligations and prevent the public from knowing how its government is responding to the crisis.

We are already seeing worrying signs that this might be happening at the federal level. Perhaps most notably, the FBI has closed its FOIA office through (at least) the end of March and is seeking indefinite stays of deadlines in litigation. In addition, the State Department is requesting at least 60-day extensions on production deadlines, as well as indefinite litigation stays in some of its cases. Short-term extensions for agencies to adjust to changing circumstances, or longer ones where justified, are not necessarily objectionable. But what is unacceptable are long-term delays absent any explanation other than citing the coronavirus. While an agency in a FOIA lawsuit may request that a court issue a stay allowing a delay in processing the request, the burden is still on the agency to seek and justify such a stay. And as these disruptions extend into the longer term, ultimately it is the responsibility of federal agencies to figure out how they will meet their legal obligations, including FOIA, and not just continue to make excuses to evade them.

Ultimately, transparency is just as, if not more, important now than it ever has been, with the government at all levels taking actions that will have grave impacts on the public’s health and civil rights, actions that have already intruded deeply into daily lives. The public has a right to know what government officials knew and when, to whom they were talking, and what decisions they made behind the scenes. What’s more, with an election approaching in November, it is critical that this information come to light in a timely manner so that when voters cast their ballots, they can be fully informed about what their government has — or has not — done to protect them.

Trump Cannot Command States to Stand Down on COVID-19

As the number of confirmed COVID-19 cases continues to climb across the United States, President Donald Trump “would love to have the country opened up and just raring to go by Easter,” which is April 12—just 18 days off. Two things stand in his way: the disease itself and federalism.

As of March 25, according to a New York Times database, “at least 59,502 people across every state, plus Washington, D.C., and three U.S. territories, have tested positive for the virus.” Using that database as it stood on March 13, a group of Columbia University researchers released several models showing that those parts of the U.S. not already marked by large clusters of cases could still “avoid the worst of the outbreak,” but only by imposing strict limitations on social contact. The researchers concluded: “Even if the country cut its rate of transmission in half—a tall order—some 650,000 people might become infected in the next two months.” Under a model produced by researchers at the Imperial College London, the pandemic could yield over two million deaths in the U.S. unless America takes measures sufficiently restrictive to “flatten the curve.”

Given these numbers, the idea of an America “open for business” in 18 days rivals the Easter bunny as a fairy tale. There simply cannot be a strong U.S. economy if workplaces are awash in the novel coronavirus and the health care sector is overrun by the spread of COVID-19.

By and large, America’s governors know this. Across the country, both Democratic and Republican governors have stepped up to the challenge with politically difficult, but socially imperative, orders to get Americans to stay at home and limit social contact. Trump cannot command a relaxation in these state precautions because it is an elementary principle of U.S. federalism that there is no freestanding federal police power. The general authority to regulate for the protection of Americans’ health, safety, and welfare belongs to state and local government, not to Washington.

Of course, no constitutional debate is more enduring in the U.S. than the scope of Congress’s discretion to use its constitutionally vested power over interstate commerce in ways that impinge on the scope of state police power. In theory, that authority would permit Congress to require, by law, that businesses affecting interstate commerce remain open or risk takeover by some national authority. It is impossible, however, to imagine any such regime being practicable. Nor is it politically plausible that Congress would ever enact such a muddleheaded scheme. In any event, the power at issue is congressional authority, not presidential power. Without a statute to enforce, the President simply has no compulsory power in the domain of public health.

Congress does have all but unlimited constitutional power to spend federal funds for the general welfare. Using that power, it has enacted a wide range of statutes authorizing federal assistance to the states to protect public health and to respond to public health emergencies. Congress may, consistent with this power, impose conditions that states and localities have to fulfill in order to qualify for assistance. Again, however, it appears politically inconceivable that Congress would condition federal public health assistance on state forbearance from taking stringent measures to control a pandemic. It is unclear what Trump meant when he said states receiving federal aid “have to treat us well also,” but again, he has no authority to impose conditions on the receipt of aid other than those authorized by Congress. There is no legal obligation of gubernatorial etiquette in the face of federal delay or incompetence.

The danger is not whether Trump has power to command governors in their exercise of state executive authority. He does not. But his misdirection about the seriousness of the pandemic or the appropriateness of relaxed vigilance could make it politically more difficult for governors to do what is necessary and lead individual Americans to be unduly complacent. Fortunately, there is heartening evidence that the partisan gap in worrying about the pandemic is narrowing. Where local leaders are slow to react, the public may actually be ahead of them. Although Trump is now enjoying something of a rally-around-the-flag uptick in his handling of the crisis, a recent poll demonstrates that Americans are giving their governors higher marks than the federal government in dealing with the crisis.

In Federalist 17, Alexander Hamilton anticipated that, within the new nation, “the people of each State would be apt to feel a stronger bias towards their local governments than towards the government of the Union.” That bias could be undermined, he thought, only if federal administration proved so far superior to that of the states. With Trump in charge of the federal response, we can only be grateful for our governors. There will be no Trumpian Easter miracle.

When Defense Production Act Delegation Fails

Of all the heartbreaking stories already emerging surrounding the coronavirus pandemic, few have been as powerful as those from Italian and Spanish doctors forced to choose which patients to allow access to scarce ventilation equipment – choices that in some cases amount to deciding who lives and who dies. As COVID-19 cases skyrocket in the United States, a result in part of tragic delays in testing, state governors, public health officials, and countless doctors on the front lines of the illness have warned that the United States will soon be in the same position. New York officials, dealing with one of the country’s worst outbreaks, have estimated they are likely to be short as many as 25,000 ventilators essential to treating patients in the state.

What should follow in the coming weeks is news of a government success story – of a president who successfully invoked authorities delegated to the Executive under the Defense Production Act (“DPA”), a statute on the books since the Korean War enabling the president to harness America’s vast technical and production capacity to help meet emergency or wartime demands. Among its provisions, the DPA empowers the president to access information necessary to assess existing industry capacity to produce essential materials; instruct American industry to prioritize fulfillment of, for example, U.S. government contract orders over, for example, equally desperate orders from abroad; and enable the federal government to allocate goods produced to the areas where they are needed most when they are needed.

Deploying these authorities should be a no brainer. Yet, like many such statutes delegating power to the Executive in the event of war or emergency, it delegates power not to any particular federal agency, but directly to the president alone, unconstrained by expert guidance or necessary processes that might otherwise produce some action. Indeed, the DPA authorizes, but does not require, the president to act at all. And so far, the president has balked from using any of these powers, reportedly under pressure from the Chamber of Commerce and other corporate interests who have evidently urged the White House to, in essence, let the market work it out for itself. There is, to date, no indication this approach has worked, and multiple indications it has not. As the New York Times reports:

“In interviews with participants in the process, from business executives to government officials, there is still widespread confusion about how much and what exactly each firm is supposed to produce. Corporate executives say they face a bewildering number of requests from dozens of nations around the world, along with governors and mayors around the country, for scarce supplies. The White House has not said who will set the priority list for deliveries. And it is not clear that any of it will arrive in time for the cities and the states that are hit the hardest, including New York.”

In short, Congress’s preferred approach to doing its business for the better part of the past century – delegating discretionary authority to some other institution to make key decisions – cannot solve the current problem.

Fortunately, the Constitution has preserved all the old-fashioned tools of Article I power: Congress can legislate directly to require all the assessments, production, and distribution this crisis demands. Today, Monday, thus brought a hopeful sign with the announcement of two separate bills in the Senate to do just this, the bills variously requiring, for example, the identification of private sector capacity; issuance of immediate purchase orders; and direction for the distribution of these supplies to the places they are needed most. The House should move quickly to introduce analogous legislation.

But especially at a time when it is already apparent that Executive Branch agencies have been hollowed out, internal criticism of the president can result in firing or worse, and ordinary norms of presidential behavior do not apply, it is critical that any final legislation use all the tools of drafting and oversight available to make sure Congress’s directions are actually carried out. As I recently testified before a bipartisan hearing of the House Rules Committee, Congress has a host of tools – through sound drafting, regular oversight, and robust enforcement – for accomplishing this under ordinary circumstances. These tools have never been more vital here.

First, draft specifically. Where past congressional emergency legislation has relied on vague terms, broad definitions, and presidential discretion – think “necessary and appropriate force” to respond to the attacks of 9/11 – this legislation must have numbers, supply specs whenever possible, and engage not the President himself but specific, expert agency heads and other officials in carrying out the necessary actions. Second, preserve oversight. Whether by requiring regular status updates through weekly, published reports, or direct testimony (even if in virtual form) by named public or private sector officials – any legislation should anticipate the ongoing need for Congress to watch closely that its mandates are fulfilled. Third, provide for enforcement. Congress can – and very often has – directed the Executive Branch to provide reports or status updates about its compliance with legislative initiatives, only to see reporting deadlines breached with little apparent consequence. It is in this context essential to ensure Executive Branch actors have all the incentives they need to comply promptly. Here, too, Congress can select from a range of enforcement mechanisms – from requiring particular, named officials to certify and/or report publicly about their compliance, to attaching professional or financial penalties for failures to act.

Decades of delegating to the Executive the power to hold the wheel of governance may have left Congress rusty in remembering how to take its full Article I powers out for a spin. That is understandable. But there has never been a more important time for Congress to relearn how to drive.

Attorneys general (AGs) in some states are:

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