Emergency Powers and the Election

Alan Zendell, April 10, 2020

Much has been written about Donald Trump’s leadership or lack of it during the COVID-19 pandemic. But as has been the case throughout this administration, we must be careful not to get distracted and miss a more general menace. In coming months the most serious threat we face may be to our basic freedoms.

From the outset, the President has disdained anything that limited his personal power, and he continues to do so during the pandemic. He has effectively purged his administration of anyone who disagreed with him or tried to limit his sphere of action until, much like Richard Nixon in the waning months of his presidency, he is surrounded by yes-people. He recently removed two Inspectors General who in the course of fulfilling their statutory obligations, rendered decisions inconvenient to Trump. Most recently, he nullified the provision of the $2.2 trillion stimulus law that required independent oversight of a $500 billion relief fund, stating clearly that he intended to ignore that provision.

We’re entering a time when Trump’s lack of respect for law and the Constitution may be the most important issue we face. A few weeks after his inauguration, I posted an article titled: ”Is it Fair to Compare Trump’s Rise to Power with Hitler’s?” It was relevant then, and still is. I did not suggest that Trump intended to lock his enemies away in concentration camps and gas them. I (and many others) examined the ruthlessly efficient manner with which Adolf Hitler dismantled the Weimar Republic’s Constitution and replaced it with one of the vilest tyrannies in modern history.

Specifically, I addressed the striking similarities between Trump’s style of politics and leadership, and Hitler’s. The comparisons were easy: extreme populism, scapegoating of targeted minorities, contempt for the legislature, attacks on the press and judiciary, and zero tolerance for disagreement and dissent. They remain valid today as nothing in Trump’s demeanor or actions has changed.

Hitler solidified his personal power by using emergency declarations to force the Reichstag (parliament) to grant him virtually complete supremacy for the duration of the perceived crises. Hitler never relinquished that power. The issue became relevant this week when the U. S. Supreme Court upheld Texas Governor Greg Abbott’s suspension of abortion services for the duration of the pandemic, ostensibly to conserve medical resources for COVID-19 patients. The Court based its decision on Jennings vs Massachusetts, a 1905 case in which a private citizen challenged the right of the city of Cambridge, Massachusetts to fine him for refusing a smallpox vaccination.

The issue was when the State (in that case Massachusetts, but the concept applies to the federal government as well) has the right to restrict the liberty of a citizen to protect the health of the general public. To understand the implications of Jennings vs Massachusetts in the context of COVID-19, I turned to a study by the National Center for Biotechnology Information in the National Institutes of Health.

According to the study, ‘the Court recognized that some aspects of liberty … which were deemed “fundamental,” were subjected to the “strict scrutiny” test: the Court determined (1) whether the government could prove that challenged law served a purpose so “compelling” that it was justified in taking action and (2) whether what the law required or forbade was “narrowly tailored” to achieve that purpose and did so with as little interference with individual liberty as possible.’ That is of great interest now, because the Court went on to specify that voting was a fundamental liberty.

There is currently much controversy over the general applicability of Jennings vs Massachusetts to our current health emergency, particularly with respect to the coming election.  We saw the first shot in that skirmish fired last week in Wisconsin, when Governor Evers attempted to postpone the presidential primary to avoid violating social distancing rules, but was overruled by the Supreme Court in a clearly partisan decision. We’ve seen more disturbing evidence of what is likely to occur in coming months as the President declared war on House proposals to allow only mail-in voting so the election is not affected by public health concerns.

Many people fear that Trump will be unconstrained in his attempt to consolidate and retain power. Will he try to use emergency powers to influence, postpone, or cancel the election? I believe without fear of exaggeration that this is a pivotal moment in our history. It’s no time to get lost in the weeds. If there was ever a time to be vigilant, it’s now.

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