Abuses of Power Amid Coronavirus
The coronavirus pandemic presents unique and dangerous opportunities for autocrats and heads of state with anti-democratic tendencies to further consolidate power. In March, for example, Hungarian prime minister Viktor Orban directed his country’s parliament—ruled overwhelmingly by his authoritarian Fidesz Party—to provide him extraordinary emergency authority, including an indefinite suspension of the legislature, the freedom to govern with one-man rule, and the ability to impose prison time on individuals violating quarantine or spreading anything the government deems “fake news.”
The coronavirus pandemic also illuminates the life and death consequences of authoritarianism. Authoritarians’ incessant need to control the narrative, disdain for independent institutions, and visceral objection to any restrictions on their power undermine governments’ ability to swiftly, fairly, and effectively respond to public emergencies. President Trump has shown how. He has used disinformation to undersell the coronavirus’s threat to the public for his personal political benefit. He has said governors’ access to him is contingent on how much they compliment or criticize the federal response. And he has intermittently suggested that he would override the prerogatives of governors and the independence of the Center for Disease Control (CDC) to “open up” the economy or ease social distancing measures earlier than the consensus of public health experts recommends.
During this extraordinary public health emergency, it is imperative that Americans remain clear-eyed about the dangers of authoritarianism. The United States may well need to impose some restrictions even more severe than those already in place—like fines for those who flout public guidance on social distancing—in order to save lives. But that only makes it all the more important that we remain vigilant against any attempt to consolidate power. And we must continue to push back against the President’s authoritarian tendencies that have and will continue to undermine an effective response.
For more on our work to protect democracy amid the coronavirus pandemic click here.
Protect Democracy is providing expert analysis of the federal government’s response to the novel coronavirus pandemic. This list will be updated periodically.
- The Dormant Commerce Clause Can’t Override State and Local Lockdowns, Lawfare (May 6)
- Trump Can’t Play Politics With Aid to States, Lawfare (April 22)
- Authoritarian Populists Have Six Classic Moves. Trump’s Response to COVID-19 Uses Five of Them., The Atlantic (April 2)
- Trump Can’t Reopen the Country Over State Objections, Lawfare (March 27)
- Secretary Azar: Use the Truth to Help Save Us From the Coronavirus, The Hill (March 26)
- Trump May Use a Reagan-Era Legal Opinion to Censor Coronavirus Information, Slate (March 9)
Additionally, we recommend these outside resources:
- ‘Coronavirus Coup’? As Outbreak Grows, Authoritarians Around the World Seize the Moment, L.A. Times (March 31)
- Keeping an Eye on the Civil Liberties Impact of Trump’s Coronavirus Response, Just Security (March 26)
- Can the Federal Government Override State Government Rules on Social Distancing to Promote the Economy?, Lawfare (March 24)
The lack of publicly available information about how the federal government is procuring and allocating scarce resources in response to the novel coronavirus pandemic creates a situation that is ripe for abuse. President Trump has repeatedly suggested that he will reward political allies and punish states whose governors criticize the federal government’s response or fail to display sufficient gratitude. Some reporting and anecdotal data suggest that he is following through on this threat. For example, last week, President Trump announced via tweet that Colorado would immediately receive 100 ventilators thanks to a request from Colorado’s Republican Senator Cory Gardner—who is currently up for reelection—weeks after Colorado’s Democratic governor requested 10,000 additional ventilators. President Trump has also made promises over the phone that FEMA has had to accommodate, and a White House official quoted by the Washington Post indicated that President Trump is paying close attention to Florida’s needs in light of its importance to his reelection. Even if the President has not yet directed the distribution of resources based on politics, the appearance that he is doing so is limiting governors’ willingness to risk retaliation by speaking openly about the federal government’s response.
Augmenting these concerns, the President has thus far rejected Congressional attempts at oversight. On March 27, Congress passed the CARES Act, a $2 trillion spending package aimed at stemming the fallout from the coronavirus. To oversee the disbursement of those funds, Congress provided for a new Special Inspector General to conduct audits and investigations and to report to Congress, as well as a Pandemic Response Accountability Committee. In signing the Act, the President issued a signing statement noting that he would not permit the Special Inspector General to report directly to Congress. And on April 6, President Trump summarily removed the dutifully selected head of the Pandemic Response Accountability Committee, Glenn A. Fine.
On April 13, 2020, Protect Democracy, the Project on Government Oversight, Citizens for Responsibility and Ethics in Washington, American Oversight, Public Citizen, and the Constitutional Accountability Center released the following recommendations for Congress and the Pandemic Response Accountability Committee, including (a) legislation and (b) a set of recommendations to each of the relevant oversight bodies aimed at ensuring public access to information about the federal government’s allocation of aid and resources to states and deterring any distribution of resources on the basis of politics or patronage.
An external link to the document is here.
During this extraordinary public health emergency, it is imperative that states remain constitutionally compliant while they impose restrictions — such as banning protests — to protect the health and safety of their residents.
On May 19, 2020, renowned First Amendment attorney Floyd Abrams joined Protect Democracy counsel John Langford in drafting a New York Times op-ed detailing various state government responses to the pandemic and how they violated the Constitution.
The op-ed built upon a letter we delivered to California Governor Gavin Newsom and the California Highway Patrol urging them to reconsider CHP’s ban on protests. The letter was co-signed by a coalition of leading First Amendment organizations, litigators, and scholars; including Mr. Abrams, Lyrissa Lidsky, Laurence Tribe, the Niskanen Center, and the Center for Media and Democracy. It included a series of recommendations aimed at bringing CHP’s policy into constitutional compliance, including issuing a written policy on any limitations on protests, defining the ban’s duration, tailoring the ban to enable protests that meet social distancing guidelines, and exempting in-car protests.
For a full copy of the New York Times op-ed, please click here.