Governors Practice Political Distancing In Shifting Blame To Federal Government

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Below is my column in The Hill newspaper on the continued calls for federal takeovers and nationalization of industries. The past commentary often reflects a fundamental misunderstanding of both our constitutional and statutory laws. What is also striking is that a significant number of governors appeared on Sunday shows but not one was asked about the failure of his or her state to prepare for such a public health emergency. Governors are referring to this crisis as if it were a previously unknown meteor from space. In fact, we have been discussing the utter lack of preparation for a pandemic for over two decades and states like New York were warned that they would be dangerously short such items as ventilators. I was part of that debate back in 2002 and 2003 when the model law for pandemic was being adopted by states — reaffirming the primary responsibility of the states to address pandemics.

Here is the column:

New York Governor Andrew Cuomo called on the federal government to take control of the medical supply market. Illinois Governor J.B. Pritzker demanded that President Trump take charge and said “precious months” were wasted waiting for federal action. Some critics are even more direct in demanding a federal takeover, including a national quarantine.

It is the legal version of panic shopping. Many seem to long for federal takeovers, if not martial law. Yet like all panic shopping, they are buying into far more than they need while not doing as much as they could with what they have. For decades, governors tried to retain principal authority over public emergencies, but they did very little with those powers. While many are doing impressive work now, some governors seem as eager to contain the blame as the coronavirus. Call it political distancing.

Even if Trump nationalized the crisis by deploying troops, imposing price controls, and forcing production of ventilators, the Constitution has left most police authority and public health safety to the states in our system of federalism. The Framers believed liberties and powers were safest when held closest to citizens in local and state governments. Elected officials at the local and state levels are more readily held accountable than unknown Washington bureaucrats. Of course, with authority comes responsibility, and the latter notion is not always as welcomed as the former.

Despite all the hyperbole of the last few days, the federal authority of the president to act is much more limited than many appear to believe. Trump cannot, and should not, simply take over the crisis. While he may want to “open for business” by Easter, he has no clear authority to lift state orders for citizens to stay at home. His greatest authority is supplying assistance in the production and delivery of necessary resources such as ventilators. While he can put conditions on some assistance, he cannot commandeer the authority of governors in their responses to the pandemic.

Federal disaster relief and control is a relatively recent phenomenon. The response to the Galveston hurricane in 1900, with some 12,000 dead, was almost entirely by Texas. After the San Francisco earthquake in 1906, with around 3,000 dead, federal troops helped maintain order and establish medical units, but the recovery was primarily an effort by California. The Federal Emergency Management Agency was not created until 1979. Its mandate was to coordinate national responses to assist state and local governments in disasters. It was never meant to shift control.

I was a critic of the Model State Emergency Health Powers Act adopted by states in 2002 as the way to respond to public emergencies from terrorist attacks to pandemics. As a civil libertarian, I was alarmed by the sweeping language giving governors virtually unchecked authority. I objected that they already had significant authority and these laws created “absolute authority” left entirely to the discretion of individual governors.

My objection was that it seemed premised on the idea that the “best cure for terrorism may be a small dose of tyranny.” An author of the model had responded by saying, “You do have to face hard tradeoffs between civil liberties and property rights of individuals against the collective rights of society. We do need to give up a little bit.” The immediate tradeoff is that the authority held by governors is only as effective as each governor. This means that, as I noted in 2003, a state may be “cursed with some dimwit” who fails to take necessary precautions or sufficient measures.

States remain in the best position to address emergencies, and such laws gave governors ample authority to act. But they did relatively little in the next two decades to prepare for public health emergencies. A New York Health Department task force report in 2015 has resurfaced, warning that the state faces a shortage of 15,000 ventilators in a pandemic. While the report did not call for stockpiling supplies, states clearly have not done enough, individually or collectively, to set aside such resources.

Media coverage has referred to the National Emergency Act along with other impressive statutory titles to suggest that the president can order national quarantines and take over management of this crisis. Actually, these laws follow the same model laid out by the Constitution in leaving the responses to state control. The often cited Stafford Act, for instance, merely heightens the authority of federal technical, financial, logistical, and other kinds of assistance to state and local governments.

The Defense Production Act is meant to advance priorities instead of establishing a nationalized industrial base. If companies have agreed to expand production or retool for new products, then there is no need to impose mandates under this law since that process is unlikely to go any faster. Nationalization can slow rather than speed relief in emergencies with replacing existing systems. With indemnifications and large orders, business executives have incentive to expand production. After General Motors failed to meet the expectations on price and production, Trump invoked the act, and that is precisely how it should be handled.

There is one additional misconception on this that is more historical than legal. Many have referred to the need for Trump to use the same authority that Franklin Roosevelt wielded during World War Two. But the situation in this case is different. Back then, there was considerable control exercised over industry, though most companies had voluntarily agreed to retool to make the necessary equipment for obvious business reasons.

It was primarily through the control of raw materials and prices that the federal government could exercise chokepoint control. It could expand agricultural production, not by taking over farms, but by setting the crop prices high to encourage expansion. Even with massive national control, it took about 18 months for a coherent system of production to emerge, and that effort was largely based on price and resource controls.

Our leaders need to play to their strengths to fight the current war. The coronavirus battle must be won in months and not years. The only way to do this is to use existing structures and markets. Vastly different situations are presented in each state, some with relatively small numbers of cases while others like New York face a full fledged pandemic. Indeed, this is precisely where federalism is a strength rather than a weakness.

Unlike highly centralized European countries, our leaders have the ability to make far more tailored responses on a state by state basis. Each state can tailor its response to its individual threats or needs, and look to the federal government for badly needed resources. When the coronavirus shifts, the federal government will have these fully functioning systems with people who are intimately familiar with the local terrain. Simply put, our balanced form of federalism was made for this pandemic.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.

147 thoughts on “Governors Practice Political Distancing In Shifting Blame To Federal Government”

  1. Can we all just be honest for just one minute. If you don’t like Donald Trump, just say I don’t like Donald Trump. Nobody has to go on with multi paragraph diatribes describing their venom for this guy. I’m not an Obama guy but my God I never was as obsessed with Obama as these hate filled liberals are about Trump. Get a grip.

    1. This is how it works Bob.

      Trump is a lying liar and should be removed as President – July 2016
      Obama was the best President ever. He never lied and did not have one scandal or controversy. March 2020
      Trump’s is lying again, just you wait and see. July 2020

      Notice the pattern?

    2. Bob, Trump has made it about himself. His endless personal grievances are still a priority. When a sociopathic narcissist is that determined to make himself the issue, hatred is likely to be intense.

    3. Yes Bob I mildly disliked Obama. I more intensely disliked Hillary. And I like Trump.

      But I find it tiresome and obnoxious both how some people never clam up about Obama or Hillary or Trump. It is as if all certain folks can focus on are personalities. What is in play now are not mere personalities but strategic directions and policies and the interplay of coarse facts like infections or the unknown effect of massive unemployment unfolding before us.

      the blame blame blame game is a perpetual distraction but it fires up the troops. which is why it wont go away. because there is little space or energy now for serious discussion just adversarial competition.

      All this energy dissipated on fighting when the focus should have been on encouraging others with calm factual information to adopt the necessary measures to slow the disease spread and manage the follow-on effects of it.

      Sad, pathetic, wretched American pigheadedness, from both sides.

      I’ll repeat what i have been saying since consistently

      a) this is bad, it has an exponential spread, it will get worse. public health is now an emergency concern. please cooperate, social distancing, masks, whatever

      b) please democrats if you think this is a time to flame republicans it is not. you will be defeating the effort to convince people to adopt social distancing and masks and so forth by antagonizing along party lines.

      i have seen this dynamic play out. my conservative friends have called me a fear monger now since lunar new year. luckily, most of them thought i was paranoid to begin with, so they were not surprised at my reaction to the emergent pandemic. the irony here is that for once it has been my republican friends calling me a fascist instead of my democrat ones.

      and i see these democrats on this website consistently provoking and insulting the very people they should act like they care about, fellow Americans whose lives matter too

  2. Turley’s groveling for a job everyday is getting old, guess what Turley, Trump does not pay back people for anything. All you have left defending Trump, is the knowledge from the public is of being a world class hypocrite on impeachment.

    1. conspicuous lack of civility where Fish joins the daily chorus of people insulting Turley. sad!

      smells like rotten fish

  3. the article had some good content and today’s comments are garbage. Luckily I am still at work and busier than ever.

    Steve Bannon was right years ago when he said undecided votes are not consequential. It’s all just about firing up the troops. Comments like these show the troops, too, have accepted this message and now it’s just about insults.

    The American system is showing its weakness. I feel very disunited with my fellow Americans and when I heard this kind of screeching I care less and less how certain things turn out.

    1. But not upset with the President “screeching” insults and infantile names at others, including threatening to cut off federal help. Is that right Kurtz. Your ears are not the virgins you claim them to be.

      1. i missed the press conference yesterday because i was working and i havent had time to catch up. i have no clue what trump said. but I heard 20 minutes of npr about it and they didnt seem half as exercised as you guys. i find that amazing because they usually pile scorn and contempt on trump as much as they can. seems like you guys have a real bee in your bonnet today. i am not sure i care to figure out why. you’re like a broken record every monday full tilt combat mode. it’s tiresome

        1. As Trump gets better the more they froth at the mouth like rabid lap dogs.

          1. I suppose having a rabid lap dog in one’s lap would present some real danger.

      2. I have seen every press conference by Pres. Trump , since the virus conferences started. I agree that there were some insults hurled at some reporters who were not as interested in the solutions to the pandemic, as they were in trying to sensenalize the problem and focus on themselves alone. I never heard him say that he was, as you intimate, for no reason gong to cut off federal help. You, like most of the left, are still using this American crisis, to discredit and unseat President Trump.
        Your comment shows your lack of concern for the facts, but your total concern for the political images. You need to look in the mirror to see just how ridiculous you sound.

        1. Justice –

          “WASHINGTON – President Donald Trump said Friday he has asked Vice President Mike Pence not to call governors he says have not been “appreciative” enough of his efforts on coronavirus – a group of critics that included a governor he referred to only by gender,

          “Don’t call the woman in Michigan,” Trump said at a press conference while discussing Pence’s work as head of the White House Coronavirus Task Force.

          That governor – Gretchen Whitmer – replied on Twitter that “right now, we all need to be focused on fighting the virus, not each other.”

          “I’m willing to work with anyone as long as we get the personal protective equipment we need for the people of Michigan,” she said…..”

          1. Use your brains. If the President said exactly what they said he said they would have quoted him but the President said something completely different.

          2. No Trump said that HE wouldn’t bother calling that woman in Michigan! He was talking about the great job VP Pence was doing.. he NEVER directed Pence not to call! Sheesh.. perhaps watching the briefing yourself would help? Context is important.

            1. Missy –

              ““WASHINGTON – President Donald Trump said Friday he has asked Vice President Mike Pence not to call governors he says have not been “appreciative” enough of his efforts on coronavirus – a group of critics that included a governor he referred to only by gender,

              “Don’t call the woman in Michigan,” Trump said at a press conference while discussing Pence’s work as head of the White House Coronavirus Task Force.

              That governor – Gretchen Whitmer – replied on Twitter that “right now, we all need to be focused on fighting the virus, not each other.”

              “I’m willing to work with anyone as long as we get the personal protective equipment we need for the people of Michigan,” she said…..”


  4. “New York Gov. Cuomo holds news conference on coronavirus response”

    March 30, 2020 | 11:54 AM EDT

    “New York’s Governor Andrew Cuomo (D) delivers an update on the state’s coronavirus response. With the coronavirus death toll soaring in the United States and health experts warning that “no state, no metro area will be spared” by the outbreak, President Trump steeled the nation for an extended shutdown, dashing hopes of a quick resumption of normal life. The announcement came hours after Trump was presented with a model showing that the novel coronavirus could lead to 100,000 to 200,000 U.S. deaths, even with the current guidelines in place.”

  5. Our leaders need to play to their strengths to fight the current war.

    The professor describes how Gov. Cuomo for instance is trying to shift blame to the federal government. That is his strength and every other political leader busy pointing fingers towards the President. Democrats may have a short memory, but the American people do not. They just impeached this President over an alleged abuse of power that never existed. Over the last 3 years, they have used the courts on a number of occasions to obstruct his article II duties, only to lose many of those cases in the Supreme Court. Now, all of a sudden, they are apoplectic over the fact he hasn’t exerted (unconstitutional) federal authority. True to form, their time-tested model of blame-shifting is working, but not in their favor. Once again, President Trump has the constitution on his side. The American people see that Democrat leadership is an oxymoron.

  6. Anything, literally ANYTHING to shift blame from Trump and his monumental and lethal failures and onto someone, anyone else, especially since Sunday’s news cycle turned out so badly for the Dotard. Turley is supposed to be a fan of free speech, so why isn’t he commenting on the shameful performance of Fatso in the Rose Garden when he attacked Yamiche Alcindor of PBS for quoting something he said on Hannity’s show? How about when one of the Trump minions wrested the microphone away from her when she refused to be silenced? What about his rejection of the pandemic playbook left for him by the Obama Administration, which is literally causing people to die due to failure to implement the recommendations? How about the obese slob refusing to use Michigan Governor Gretchen Witmer’s name, calling her “that woman”, after she went public with the fact that she was told by suppliers that they weren’t allowed to fill previously confirmed orders for medical supplies, presumably on orders from the White House? How about the con artist with the bad comb-over commenting that he likes to reward people who show appreciation for him. Is that what we’re coming down to–praise for King Donald, or no ventilators, gloves, masks, or gowns?

    Turley says: “reaffirming the primary responsibility of the states to address pandemics.” Really, Jon? States have “PRIMARY RESPONSIBILITY” to address pandemics? Tell me: can the Governor of Ohio stop people from flying to Columbus from China if there is an outbreak of communicable disease in China? How would the Ohio Governor know there is an outbreak that threatens his citizens? Is it the responsibility of the Governor of Kentucky to monitor emerging worldwide communicable diseases, evaluate how they are spread, what the incubation period is, whether there could be any level of herd immunity, which citizens are most vulnerable, when the peak of infection is likely to occur, and how many ventilators will be needed? Are states supposed to individually join the World Health Organization, or set up offices in every country to monitor the spread of emerging communicable diseases? Is it the responsibility of the Governor of California to try to come up with a vaccine? Where would the Governor get materials from which to start culturing COVID-19? No, Jon, you are wrong. These things are the responsibility of the federal government.

    As Governor Cuomo said, because states all need ventilators, they are in a bidding war against each other, which is driving up the cost astronomically. Whose fault is this lack of coordination between need and supply for critically-needed medical devices? Could the one who called COVID-19 a “hoax”, who promised when there were only15 cases there would soon be 0 cases and who added praise for himself for doing a good job, who said there would be a vaccine “very soon”, who said anyone who wants a test can get a test, who lied by claiming there was a “game changing” medical treatment available, who directed Kellyanne and Kudlow to lie by claiming COVID -19 is “contained”–could this person have responsibility for failure of leadership? How about turning what are supposed to be daily briefings into campaign commercials or even being involved at all, instead of allowing scientists to truthfully and honestly answer questions? “Deep State Department”? Really, when Americans are dying? Another sad note: Dr. Birx has sold her soul for politics. She has been coached, probably by Kellyanne, on how to ignore the substance of a question that is asked and instead give a speech. She is pathetic.

    Turley says: “While he can put conditions on some assistance, he cannot commandeer the authority of governors in their responses to the pandemic.” Tell me, Jon, what US companies make ventilators, gowns, masks, gloves, other medical equipment badly needed now? Is there a manufacturer in each state that a state’s governor can command to begin producing these things? More importantly, can the governor of one state command a company in another state to ramp up production of such supplies, and direct where the greatest need is? No. Only the federal government can do this. Trump lied when he said ventilators are more complex than cars–a ventilator has 1,500 parts; a car has about 30,000 parts. There is a more basic ventilator that the military uses and that can run on batteries, which is easier to produce and far less expensive. What company makes these for the military? The bigger question is how are governors supposed to carry out what Jon says is their responsibility to get critically needed items when they have to compete with each other and don’t have the authority to command manufacturers in other states to make or ramp up production? Who is in the best position to coordinate production and supply with need? What does the playbook say about all of this?

    Trump also lied when he said that no one could have predicted this pandemic and how it would affect us. It’s all laid out in the playbook he rejected.

    I am stumped to understand how Turley can ignore all of the lying, abuse of reporters and to join the chorus of blame-shifting away from Trump when Americans are dying every day, due in part to his incompetence. It’s just like that fat slob traveling to Virginia, with a flurry of flags strategically placed for the photo-op, saluting the navy hospital ship when he lied his way out of military service when it was his turn to serve. After rejecting the pandemic playbook and dismantling the NSC team, lying by calling it a hoax and all of the other lies and downplaying of this crisis, how does this deeply-flawed excuse for a person show up and keep lying to the American people commandeering what is supposed to be a briefing about this crisis and turning it into a vainglory opportunity? As Joseph Welch said: “have you no sense of decency”?

      1. Prof. Turley would be a great judge. If he wanted to be one, I am sure he could have already gotten an appointment. Unfortunately, for people like you, he would make a terrible Judge. He would decide his cases on the Constitution, the facts, and the law. I’m sure that would be a disappointment to you and the rest of the leftists.

        1. I agree, he would make a superb judge and an even better justice. I do not always share his political view but I have enormous respect for his intellectual honesty and legal integrity.

    1. Natacha – I know that you purport to be a lawyer, however you get so much wrong you are a danger to yourself and your clients. One of the things I learned in legal research was go to the original source and read it in context. Yes, I was a legal researcher and a damn good one. Go to the source.

      1. Paul,

        I don’t think she/he has clients and likely is not a lawyer.

        The long and inaccurate screeds smell of a dark cubicle somewhere and payment by the word.

        I have been passing those comments over for awhile now. Not worth reading.

        1. Young – I agree with the payment by the word. She is too wordy by far. Brevity in all.

        2. it likely went to law school and has never really earned its bread with helping clients

          suspect perhaps maybe had some volunteer hours at the sort of clinic which is always looking for landlords to counter-sue on behalf of deadbeat tenants

        3. Agreed, Young. The irony is her rants, if they were true, reflect an historic degree of Democrat incompetence. Clearly, if President Trump were guilty of even 1% of her accusations, a 3.5 year effort to expose him and remove him from office would have materialized by now. Instead, Democrats have been embarrassed time and again, the MSM have been exposed as propagandists for the Democrats and support for this President by the American people is growing. The other irony is instead of being able to rely on the American people to forget how incompetent the Democrats have been, they’re leading candidate for President is showing his incompetence by forgetting everything.

          1. Olly,

            Good points. President Trump has to be the most investigated person in history.and they came up dry. Incredible!

            Also incredible is that the “party of youth” has two contenders enlisted from what could be an assisted living center with sections for the radically demented and the memory demented, and one of them isn’t even a Democrat.

            1. Exactly. The one that is a Democrat has no idea what he is and the one who is not a Democrat is what the Democrats have become.

      2. OK, what, precisely did I get wrong? List the things I got wrong and your source, or just admit that you personally attack anyone who criticizes that chubby fat ass you adore and defend.

        On “Meet the Press”, I saw the video of him attacking Yamiche Alcindor, claiming she got fired by the NY Times, and the minion grabbing away her microphone. She was interviewed by Ali Velshi. I saw the interview with Governor Witmer also on television, in a couple of places, might have been ABC. The video of fatty saying he likes to reward those who show appreciation was shown on all networks who broadcast the fake COVID-19 briefing.

        Gov. Cuomo has a daily briefing, and he disclosed that he is in a bidding war with other states and that this is driving up the cost. He said it a couple of times over the previous 2 days when he called on the federal government to take charge of ventilator manufacturing and distribution. Velshi interviewed a Dr. Gupta who was a military veteran and who gave information on the kind of stripped down ventilators used by the military that can also run on batteries. Ali Velshi disclosed the number of parts for a ventilator and for an automobile, to refute Trump’s claim that ventilators have more parts than an automobile.

        I saw an interview with one of the people who helped put together the playbook, who was a US Attorney at the time. The things Trump has said publicly are widely available.

        Instead of accusing me of being dangerous and lying, why not use your “damn good” research skills and look up these things for yourself?

        1. Natacha – watch the ENTIRE Trump press conference, not just the part MSM puts out for you. BTW, what is your BMI?

          1. BMI? I was wondering that too. Thanks for asking. You won’t get the truth, of course.

            1. Sounds like she/he really is fat. I won’t get that image out of my mind.

          2. I did see the entire “press conference”. Just like Trumpy Bear, who claimed that the hacking of the DNC computers was done by some fat slob with a computer. You cannot respond in substance to the points I raised, so now you are implying that I am fat. Even if I were, does that make what I say wrong? Why won’t you cite me contrary facts?

            Do you do things like this in court when an opponent makes a salient argument that destroys your case, or when a female judge rules against you?

            These attacks say more about Trump disciples than anything else.

              1. Paul,

                Now I am wondering if ‘Natacha’ is Russian for ‘Fatso”.

                N likes calling others fat slobs. Projection perhaps?

                1. Young – she has a thing for Ivanka’s boobs, too. Too perky for her????

                  1. Paul,

                    I didn’t know about the obsession with Ivanka’s boobs.

                    What a loathsome creature.

                2. How about this: we compare cumulative GPAs, GRE and LSAT scores? No, that won’t work: you are Trump Disciples, so you lie, and you would accuse me of lying, anyway. Besides, Karen never went to college. Because you can’t come up with any substantive response to the points and facts I raise, you call me names, accuse me of being fat, of being a failure. Maybe you think you’ll intimidate me into shutting up, but it won’t work.

                  See, I only bring up his weight because he lies about that, too–no way he’s 250 lbs like he claims. He also calls women he doesn’t like “fat pigs”, and insults them for their appearance, while he struts around like a peacock, oblivious to his own obesity, that absurd pompadour covering a bald crown, and the oversized ties that only emphasize his huge gut.

                    1. How much do YOU think Trumpy Bear really weighs? Still waiting on your cumulative GPA, GRE and LSAT scores.

                    2. Natacha – my degree program did not require me to take the GRE and since I did not apply to law school, I did not take the LSAT. However, my score on the Miller Analogy qualified me for Mensa. Sooooooo, I am waiting on your scores now, plus your BMI.

                  1. i peg trump at 275. he’s very tall. 6.3. 250 seems a little light to me for that frame

                    who cares anyhow, does that justify you coming here insulting him every day?

                    no that’s just you showing off your peevishness

        2. Natch taunts another user ( not sure who? inarticulate harridan screeching hard to decipher) thus:

          “you personally attack anyone who criticizes that chubby fat ass you adore and defend”

          by this she insults another user, and refers to the President of the United States in a disparaging way

          these inflammatory insults do not conceal but rather draw attention to, a total lack of substance,and the excessive volume to intimidate others is very disruptive!

          1. She intimidates with the truth. And Trump has a bulbous ass, a rat pelt on his head and vacant lizard eyes.

            That’s where you have to go when dealing with Team Non sequitur on this blog.

            1. She might intimidate someone like you, who doesn’t care about the truth anyway. Your description of Trump is so vulgar and immature, it is embarrassing for anyone other than a comrade of yours.

            2. Plus, I was just borrowing Trumpy’s tactics. He pretends to be POTUS, which is a role model position, so name calling of people who criticize you must be all right.

              Mr. Kurtz: a POTUS does not lie, he does not cheat his way into office with the help of a hostile foreign government, he does not leverage aid to an ally in exchange for dirt on an opponent, he does not brag about assaulting women, does not cage migrants seeking asylum, lie about Mexico paying to construct a wall, does not call a public health crisis a “hoax”, downplay the seriousness or lie about an imminent vaccine or unproven cure.

              Trump has not earned the title: he stole it and sullies it every single day, so don’t imply that the dignity and respect others holding this office earned should apply to Trump.

              1. “Mr. Kurtz: a POTUS does not lie”



                you are naive and the more you complain about this the more clearly insignificant it becomes

                with heads of state the question is not did he lie it is what is the specific lie that supposedly is the problem? they’re all lying constantly almost by necessity.

                also most of what you people call lies, are usually just oversimplifications.

                here’s a lie, not sure where it came from, but i’ve heard it a lot:

                YOU DONT NEED TO WEAR A MASK

                now that’s a lie and a consequential one

                wearing masks, not just n95 ones or surgical masks but even scarves, can reduce spread of droplets and transmission of the virus. that is fact.

                so why the lie?

                clearly they did not want to encourage hoarding. that much was understandable.

                but at some point the issue of hoarding is less important than the issue of getting people to stop spread by use of masks.

                so who’s propagating this lie? i have heard it a lot. not clear to me where it came from at the start. but if Trump has propagated the lie then he should stop

                but we know it’s all complicated. don’t rush to judge every fib or white lie as part of an overall pattern of blah blah blah. let’s be specific and then there can be a conversation

              2. Natacha – if you are a lawyer, and I use the term loosely here, then you will have taken at least one course in Constitution Law. Two things about the Constitution and Trump: 1) there is no “model” in the Constitution to be President and 2 ) he earned the job by getting the most Electoral votes.

                1. Paul,

                  Absolutely on target with an interesting point worthy of more analysis than is found in typical constitutional law classes.

                  The President is the executive. What that means has been left open to the demands on the nation and the office and to some of the boundaries created in English law and by the powers granted to the other two branches of government and left to, not granted, to the states. That said, one can find examples in which presidents have gone over those boundaries by a wide margin.

                  Almost out of sight, but more apparent in this crisis, is the encroachment of administrative law on all branches of government, what Gary Larwson has called “The Return of the King” in an article and which Professor Hamburger has called unlawful in his great book, “Is Administrative Law Unlawful”.

                  1. Young – I have always contended that administrative law is unlawful. Put me down as a believer. 🙂

                    1. Hamburger’s book is not easy reading but it is thorough, very interesting and persuasive.

                      I wondered, for example, about the Sweet Cakes bakery case in Oregon. An administrative law judge imposed a monetary judgment against the business. Where did he get that authority? An enforceable judgment should come from a judge, not a member of the executive. The procedure also bypasses the Oregon constitution’s right to a jury. An entire, ancient system of law has been pushed aside by autocratic bureaucrats lodged in the executive.

                      On a different track, I think that the limits of the police power are too seldom explored–or used. It is not a limitless power. Some coercive laws are enforced even though one would struggle to find any justification for them in the police powers available to government. California, for example, has gotten in the habit of passing rather stupid laws that could not stand if examined carefully enough in court.

                    2. Young – it probably doesn’t make you feel any better, however administrative law in Canada seems worser; 😉

                    3. Paul,

                      I am not familiar with Canadian administrative law but I will take your word for it. I do know that some of their “rights” agencies operate like a Star Chamber with Stalinist ornaments. Shocking in a country with common law (except Quebec) that should protect an open judicial system following ancient precedent.

                    4. Young, follow Ezra Levant (Rebel News) in Canada and see how his freedom of speech and other freedoms have been abridged.

                    5. Allan,

                      I recall some video that Ezra Levant caught of the Mounties interrogating him because of his book about Trudeau.

                      I wondered when the RCMP turned into the Stasi.

                      Frightening that a common law country (except Quebec) could begin to look like East Germany in “The Lives of Others”. Too much administrative law subverting the course of ommon law tradition, I suppose.

                      Mark Styeyn had his round with one of their Kafkaesque administrative trials. He prevailed because he managed to open the proceedings to public view.

                      Progressives are destroying Canadian freedom and they aren’t helping much here.

                    6. Young, the one you mention was both funny and horrifying at the same time. I remember one from years back where the government went after him badly and he did nothing but tell the truth.

                  2. Young, we learned in admin law class that Schecter Poulty case put an end to ultra vires or constitutional restrictions separations of powers challenges to agency rulemakin and enforcement… if i remember the case name.

                    as lawyers we dont have to like the law just know it

                    1. Kurtz,

                      You are likely correct. I don’t remember the case, but I suspect it was argued along conventional lines and doomed to fail. That was what I was thinking when Sweet Cakes was going on, the lawyers were offering a very competent conventional defense that was doomed to fail. They had to go much deeper as Hamburger does, into the foundations of the system.

                      Ask yourself, can the governor simply declare that someone owes a sum of money without judge, jury or true trial and then collect it? No, he does not, or should not, have that power. How then can a lesser officer whose powers derive from the executive power do what the greater power cannot?

                      It is less a question whether the agency acts were ultra virus than whether they should exist at all in that form.

                    2. Second look and I don’t think the poultry case means what you think, but subsequent cases have vastly and erroneously extended administrative law. It needs to be pulled back. That, of course, would require judges to recover some judicial authority and for Congess to be more jealous of its legislative powers. Our current Congress doesn’t appear to have the intellectual wattage to see the problem, much less correct it.

                    3. here is the chicken case. i was wrong, it upheld the separation of powers doctrine against agency formation, but, the case was not followed, see NLRB case mentioned below


                      here is what wiki said about this case, very good entry

                      “A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935), was a decision by the Supreme Court of the United States that invalidated regulations of the poultry industry according to the nondelegation doctrine and as an invalid use of Congress’ power under the commerce clause.[1] This was a unanimous decision that rendered the National Industrial Recovery Act of 1933, a main component of President Roosevelt’s New Deal, unconstitutional.

                      The regulations at issue were promulgated under the authority of the National Industrial Recovery Act (NIRA) of 1933. These included price and wage fixing, as well as requirements regarding the sale of whole chickens, including unhealthy ones. The government claimed the Schechter brothers sold sick poultry, which has led to the case becoming known as “the sick chicken case”. Also encompassed in the decision were NIRA provisions regarding maximum work hours and a right of unions to organize. The ruling was one of a series which overturned elements of President Franklin D. Roosevelt’s New Deal legislation between January 1935 and January 1936, until the Court’s intolerance of economic regulations shifted with West Coast Hotel Co. v. Parrish.[2] The National Industrial Recovery Act allowed local codes for trade to be written by private trade and industrial groups. The President could choose to give some codes the force of law. The Supreme Court’s opposition to an active federal interference in the local economy caused Roosevelt to attempt to pack the Court with judges that were in favor of the New Deal.

                      There were originally sixty charges against Schechter Poultry, which were reduced to eighteen charges plus charges of conspiracy by the time the case was heard by the U. S. Supreme Court.

                      Among the eighteen charges against Schechter Poultry were “the sale to a butcher of an unfit chicken” and the sale of two uninspected chickens.

                      Ten charges were for violating codes requiring “straight killing”. Straight killing prohibited customers from selecting the chickens they wanted; instead a customer had to place his hand in the coop and select the first chicken that came to hand. There was laughter during oral arguments when Justice Sutherland asked, “Well suppose however that all the chickens have gone over to one end of the coop?”[3]

                      Chief Justice Hughes wrote for a unanimous Court in invalidating the industrial “codes of fair competition” which the NIRA enabled the President to issue.[4] The Court held that the codes violated the constitutional separation of powers as an impermissible delegation of legislative power to the executive branch. The Court also held that the NIRA provisions were in excess of congressional power under the Commerce Clause.

                      The Court distinguished between direct effects on interstate commerce, which Congress could lawfully unregenerate, and indirect effects, which were purely matters of state law. Though the raising and sale of poultry was an interstate industry, the Court found that the “stream of interstate commerce” had stopped in this case—Schechter’s slaughterhouses chickens were sold exclusively to intrastate buyers.[5] Any interstate effect of Schechter was indirect, and therefore beyond federal reach.

                      Though many considered the NIRA a “dead statute” at this point in the New Deal scheme, the Court used its invalidation as an opportunity to affirm constitutional limits on congressional power, for fear that it could otherwise reach virtually anything that could be said to “affect” interstate commerce and intrude on many areas of legitimate state power. The court ruled that the law violated the Tenth Amendment. According to Supreme Court historian David P. Currie, the court believed that “to permit Congress to regulate the wages and hours in a tiny slaughterhouse because of remote effects on interstate commerce would leave nothing for the tenth amendment to reserve.” Currie added that “it can hardly have escaped the Justices that apart from its limitation to business there was little to distinguish what Congress had attempted from the 1933 legislation authorizing Adolf Hitler to govern Germany by decree … the delegation decision in Schechter was a salutary reminder of the Framers’ decision to vest legislative power in a representative assembly.”[6]

                      Justice Cardozo’s concurring opinion clarified that a spectrum approach to direct and indirect effects is preferable to a strict dichotomy.[7] Cardozo felt that in this case, Schechter was simply too small a player to be relevant to interstate commerce.

                      This traditional reading of the Commerce Clause was later disavowed by the Court, which after threats from Roosevelt began to read congressional power more expansively in this area, in cases such as NLRB v. Jones & Laughlin Steel Corp.[8] However, more recent cases such as United States v. Lopez[9] perhaps signal a growing inclination in the Court to once again affirm limits on its scope. In a unanimous 2011 decision, Bond v. United States, the Supreme Court cited Schechter as a precedent.[10]

                      Speaking to aides of Roosevelt, Justice Louis Brandeis remarked that, “This is the end of this business of centralization, and I want you to go back and tell the president that we’re not going to let this government centralize everything.”[11]

                      In Hyde Park a few days after the decision, Roosevelt denounced the decision as an antiquated interpretation of the Commerce Clause.[12]

                      After the decision was announced, newspapers reported that 500 cases of NIRA code violations were going to be dropped.[13]

                      Glen Asner, a descendant of the Schechters, said that the brothers probably voted for Roosevelt in all four of his presidential campaigns. Their main political concern in the 1930s was anti-Semitism. The Schechters felt that without the New Deal, America could have taken the route of Nazi Germany.[14]”

                    4. Kurtz,

                      You were not entirely wrong on the chicken case. I like being wrong when I remember the general topic of a case even when I don’t get the ruling right the first time around. That type of error is great when trying to do research on a subject. Makes things go much faster when you can remember anything associated with the issue.

                      The wiki comment you added was great for review. This is an area where an enormous amount of study would be required to be ready for litigation or appeal.

                      I think that some research on the scope of executive power vested in governors could use some study as well. I am concerned some governors will be left with the impression that they have no significant restrictions on their executive powers. Same with the mayors of some major cities.

                      Could be a lot of post-crisis litigation.

                2. PCS, the “model” for President in the Constitution is “natural born citizen” which was clearly defined by the legal text and reference of the era, the Law of Nations, 1758. The fraud who failed, juxtaposed against the model, was Barack Obama. NUTCHACHA, focused solely on killing babies and obtaining undeserved benefits and entitlements, will never admit of the facts and the truth regarding a traitor who so hated America, he threatened its existence, proposing its “fundamental transformation”:

                  Barack Obama will NEVER be eligible to be U.S. president.

                  Barack Obama’s father was a foreign citizen at the time of his birth.

                  – A “citizen” could only have been President at the time of the adoption of the Constitution – not after.

                  – The U.S. Constitution, Article 2, Section 1, Clause 5, requires the President to be a “natural born citizen,” which, by definition in the Law of Nations, requires “parents who are citizens” at the time of birth of the candidate and that he be “…born of a father who is a citizen;…”

                  – Ben Franklin thanked Charles Dumas for copies of the Law of Nations which “…has been continually in the hands of the members of our Congress, now sitting,…”

                  – The Jay/Washington letter of July, 1787, raised the presidential requirement from citizen to “natural born citizen” to place a “strong check” against foreign allegiances by the commander-in-chief.

                  – Every American President before Obama had two parents who were American citizens.

                  – The Constitution is not a dictionary and does not define words or phrases like “natural born citizen” as a dictionary, while the Law of Nations,1758, did.


                  Law of Nations, Vattel, 1758

                  Book 1, Ch. 19

                  § 212. Citizens and natives.

                  “The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens. As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights. The society is supposed to desire this, in consequence of what it owes to its own preservation; and it is presumed, as matter of course, that each citizen, on entering into society, reserves to his children the right of becoming members of it. The country of the fathers is therefore that of the children; and these become true citizens merely by their tacit consent. We shall soon see whether, on their coming to the years of discretion, they may renounce their right, and what they owe to the society in which they were born. I say, that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for, if he is born there of a foreigner, it will be only the place of his birth, and not his country.”


                  Ben Franklin letter December 9, 1775, thanking Charles Dumas for 3 copies of the Law of Nations:

                  “…I am much obliged by the kind present you have made us of your edition of Vattel. It came to us in good season, when the circumstances of a rising state make it necessary frequently to consult the law of nations. Accordingly that copy, which I kept, (after depositing one in our own public library here, and sending the other to the College of Massachusetts Bay, as you directed,) has been continually in the hands of the members of our Congress, now sitting, who are much pleased with your notes and preface, and have entertained a high and just esteem for their author…”


                  To George Washington from John Jay, 25 July 1787

                  From John Jay

                  New York 25 July 1787

                  Dear Sir

                  I was this morning honored with your Excellency’s Favor of the 22d

                  Inst: & immediately delivered the Letter it enclosed to Commodore

                  Jones, who being detained by Business, did not go in the french Packet,

                  which sailed Yesterday.

                  Permit me to hint, whether it would not be wise & seasonable to

                  provide a strong check to the admission of Foreigners into the

                  administration of our national Government, and to declare expressly that the Command in chief

                  of the american army shall not be given to, nor devolved on, any but a natural born Citizen.

                  Mrs Jay is obliged by your attention, and assures You of her perfect

                  Esteem & Regard—with similar Sentiments the most cordial and sincere

                  I remain Dear Sir Your faithful Friend & Servt

                  John Jay

    2. Presumptuous harridan calls Professor Turley “Jon” as if they are friends. How rude!

      Endless screeching. Dripping with obnoxious contempt. Nauseous !

        1. mockery is rude among people who wish to have a serious conversation. it deteriorates badly every weekend and I lose interest. but that’s the purpose of all the trolling and mockery, yes? To drive people away from the comments section so you can monopolize it with a narrow but unified viewpoint.

          there is no debate here now, at a time when it should have been more feasible than ever,.

          1. Suggestion: begin your antithesis with something other than “presumptuous harridan” and take it out of the realm of personality for a true discussion.

            1. the screeching harridan is the one tossing around all the most invective. nobody else even comes close. there is no conversation possible with this level of inflammatory trolling

      1. NUTCHACHA and the communists shall not be kept from their objective: The right to kill babies and evermore “free stuff.”

        Their communist covetocracy is the end that justifies any and all means.

        Americans desire freedom.

        Communists demand abortion and benefits-cum-entitlements.

    3. Natch refers to a fat slob, who is that?

      oh, POTUS Trump she means

      this is one of our “fellow Americans” talking here folks

      one who says she is a nurse but is not very busy helping patients at a time of critical need for qualified health care providers

      instead she defecates her steaming verbose dungheap of insults on the comments page day after day

    4. Well, Natacha rained facts on your heads, accurately captured the head of a pin Turley is attempting to dance on, so most of you respond in a truly Trumpian way…

      You ignore the facts entirely and character assassinate.

      And you’re the noble ones???

    5. Amazing that you can use so many words, to say absolutely nothing. Your hatred of everything Trump is the only message I got from this long winded post.

  7. No use talking sense to the panic stricken, JT. We’ve got 136 Virginians sick enough to be hospitalized and Gov. Blackface shut down the Commonwealth. Welcome to Amerifear!

    1. “It is always possible to bind together a considerable number of people in love, so long as there are other people left over to receive the manifestations of their aggressiveness.”

      – Sigmund Freud, Civilization and Its Discontents

  8. Professor, I’ve been deeply disappointed in you before but this current defense of Trump is really pathetic. Of course the President must be the one in charge of a country wide response to a pandemic! I realize that the current occupant of the office isn’t capable and you know it but that doesn’t excuse his obligation and his reckless disregard for the lives of Americans while he stuffs his pockets and the pockets of his cronies! For gods sake he disbanded the Pandemic Response Team! It’s hard to fathom how blind you are to the limits of a governors power to order a national response or even to act to obtain medical supplies and equipment particularly when the man who should be helping is making calls to manufacturers telling them not to sell or ship to certain states because the governors haven’t shown him enough fawning love and praise. Watching this is nauseating and yet you want us to say no problem, not his responsibility!

    1. +1

      We know the President is an infantile scumbag without the ability to lead the nation (we use to expect them to lead the western world as well). Do we need academic apologists for this deficiency? Fox might.

    2. So the law should be ignored? The state authorities have been inept in protecting their citizens and ignoring warnings about shortfalls in years past. You obviously did not read Prof. Turley’s column. The state governments are specifically responsible for such emergencies and the federal government can only assist upon a request from the state (recall Gov. Blanco and Mayor Nagin refusing federal assistance until only after N.O. became submerged under 10 feet of water?). As the professor states, the country was founded where states controlled such matters, and more, within their border, they were individual states and feared federal intrusion. And ever since then, the states have gained even more authority. Based on your theory Cana and Mexico might also be blaming Trump and the federal government

  9. After realizing that he screwed up by buying votes instead of the 16,000 ventilators that NY needed, as usual, the Democratic leader blamed someone else for the lethal mistake.

    He wanted all the federal supply of ventilators leaving the cupboard bare for all the other states because that is how socialism works. Others share with you but you don’t share with them.

    Cuomo was caught and bailed out by the President before he even tried to get unused ventilators from his own state that might never be needed. Did he say “f**k” like one of our list mates does after being caught or did he learn from the experience? One has to wait and see.

  10. NY Gov. Cuomo & NYC Mayor Bill De Blasio are top talkers when it comes to pandemic cash relief.

    The dollars will be part of Gov. Cuomo’s casino. It will be cherry picked & go into a gray cloud. Get familiar with 2 phrases:

    “The house always wins” & “what goes on in NY, stays in NY”

  11. The democrat fascists are at just trying to justify federal takeovers because that is their dream and it’s a good look at how they will govern if they are elected. They don’t understand the constitution and are even afraid to take the action in their own states that they seem to suddenly say Pres. Trump should take. It’s truly Orwell double speak in action. So many liberals are unable to see it as they listen to their newspeak rattle on constantly with propaganda.

  12. Thanks for that sterile, academic, and impotent defense of the federal – whoops, I mean Trump – response JT. No doubt stooges can be found to write the exegesis of abandoning leadership domestically and internationally and you’re in the front of the line, and no doubt the virus will wait for us to resolve it all in court and in the groves of academe while states bid up prices and fight over vanishing supplies.

    We don’t need no stinkin’ pandemic task force!

    1. I guess JT’s right. If this is the leadership the feds are offering, best to ignore.

      “Trump noted suspiciously that hospitals are now asking for many more masks than they used to, before the coronavirus appeared. “How do you go from [10,000] to 20,000 masks [prior to the pandemic] — to 300,000…” he said, “Something’s going on. And you ought to look into it as reporters. Where are the masks going? Are they going out the back door? … And we have that happening in numerous places.”

      “I don’t think it’s hoarding,” he later added, “I think maybe it’s worse than hoarding.”

  13. If the planning actually was deficient, there could be a number of reasons for that, but the main one would be that there wasn’t any candy in it for influential interest groups. Many years ago, a disaffected member of the Albany establishment described the motor of New York politics thus: “business opportunities for insiders’. As for Michigan, the state government has for more than 50 years done diddly / squat while Detroit and Flint rotted away.

    1. as it relates to Detroit, the main reason it is a disaster now, is probably the same reason it has been an increasing disaster for decades.

      it doesn’t take too long to figure out what that reason is, if you take a spin in the car around the city

      not surprising that the covid-19 is a mess there now along with all the other usual messes. out of compassion however, there should be reasonable aid.

  14. As I saw 2 parties in my building this weekend, Gen Z, and Gen Y, respectively, of 20+ people each…can I assume they were not social distancing?

    To some surprise, some people just don’t care, no matter what is said to them.

    Like the 2 extremes of the bell curve, those who are partying, and those who are wiping down every single item they bring into their house with Clorox wipes, 1 by 1.

    I don’t think I have yet to hear anything on our news like things that have been said in places in other places.

    “You don’t need a home hairdresser bc the casket will be closed.” — Italy

  15. Agreed with the differences between Covid 19 response and WWII response.

    Although, with the shifting of airplane manufacture at car plants, the effort was much more than just setting up resource choke points. That’s a WILD oversimplification. It was resource choke point and essentially stepping in to reroute production together. And it happened in the matter of weeks, not months.

    Nevertheless, we’re in a war right now, just more with an ‘invisible’ enemy.

    Also, defining federalism as somewhat of an ideological monolith doesn’t work so much either. The federalism that exists now is different from what it was mid-1900’s. It got up and changed much like the strike zone functionally changed in baseball as it moved lower from it’s original roots. Federalism now was incredibly influenced by the Reagan years and its accompanying move to shrink government. Covid 19 presents a challenge that, if nothing else, shows the kryptonite to that mindset.

    So let’s agree to, for now, leave it that the entire nation was not prepared for a pandemic response. It just wasn’t. On balance, we’re going to see in the aftermath that the Trump administration was not only not prepared, they took active actions to be even less prepared.

    For now though, let’s do what it takes to navigate this crisis. There is much room for an after action report, and possible legal charges, later. A 9/11 style commission will be beyond necessary.

  16. There is a division between state powers and duties vs. the notion of “States Rights!”.
    That second notion has a fever in the civil war. Cities, counties, states should get their acts together for flu prevention.

  17. This is CYA if I ever saw it. If you shift it to Trump, you can blame him. I don’t think he is having it. Nice try guys.

    1. We know he’s not having it Paul, but he’s misrepresented the facts on this crisis from the beginning and continues to do so. Do you want a review of those misrepresentations? Do you remember the word “Easter” to start with?

        1. He said he thought that was possible when no one else with a half a brain did and he’s said similarly misleading sunshine BS for almost 2 months now, causing millions to underestimate the reality. I have had 2 people I work with tell me last week that Trump said we’d be over this in a couple of weeks and therefore ……..

          Is your degree from Liberty University?

          1. btb – my degrees are from the largest university in the United States.

  18. It’s interesting to note that ALL of the complaining Governors are Democrats.

    1. It’s the culture. The Democratic Party is a collecting pool of chronic complainers.

    2. Our “leader” has directed his team to cut off those Governors not showing sufficient appreciation. I’m sure the residents of those states deserve what’s (not) coming to them.

      1. By the book.

        If you had watched the presser yesterday you would have heard President Trump say that he did not need to speak to the governors of Washington and Michigan because he had Mike Pence call them and nothing they needed was being denied. Both states have been flooded with resources.

        It is a wonder to me that he has time for frequent discussions with any state governors, much less the lunatic ones. He is very, very busy.

        The most important resource those states need is governors who are not Denny Dimwits. Unfortunately they aren’t stockpiled anywhere for emergencies like this.

        As for you, whoever is preparing your list of talking points needs to pay closer attention. It is embarrassing. You don’t want to sound like the governor of Washington.

        1. WASHINGTON – President Donald Trump said Friday he has asked Vice President Mike Pence not to call governors he says have not been “appreciative” enough of his efforts on coronavirus – a group of critics that included a governor he referred to only by gender,

          “Don’t call the woman in Michigan,” Trump said at a press conference while discussing Pence’s work as head of the White House Coronavirus Task Force.

          That governor – Gretchen Whitmer – replied on Twitter that “right now, we all need to be focused on fighting the virus, not each other.”

          “I’m willing to work with anyone as long as we get the personal protective equipment we need for the people of Michigan,” she said….

      2. “Our “leader” has directed his team to cut off those Governors not showing sufficient appreciation.”

        That is a lie.

        1. Allan,

          Yes, it is a lie, but they will keep repeating it.

          Some of these posters have passed from interlocutors to specimens.

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