(Bloomberg Opinion) -- This weekend, President Donald Trump did a rapid about-face, pulling back from his suggestion that he might try to quarantine New York, New Jersey and Connecticut. It marked a significant moment in his response to the coronavirus pandemic. It symbolizes Trump’s fairly consistent choice thus far in the Covid-19 crisis to reject the impulse to grab power.
There’s a script for populist autocrats in emergencies: maximize executive power, restrict civil liberties, delay or suspend elections. Trump has pretty consistently done the opposite during this crisis.
Trump has even held back from exercising the substantial presidential power afforded him by existing law. Rather than encouraging or promoting restrictions on movement — a key civil liberty — Trump has so far repeatedly discouraged lockdowns. And notwithstanding lots of nervous speculation by Democrats, Trump so far has said not a word about delaying the 2020 election, which in any case he lacks the constitutional power to do.
Trump, in other words, is not acting like a dictator. Americans don’t have to be grateful for this, but we should at least be relieved. I know I am.
I do not come to praise President Trump. He has been flouting the rule of law since before he was elected, and has done incalculable damage to constitutional norms. I testified under oath before Congress that he deserved to be impeached for the high crimes and misdemeanors he committed in his July 2019 phone call with the Ukrainian president. I still believe that. I’m not a Trump apologist.
I also want to acknowledge that Trump’s approach to the crisis could change precipitously. Like many others, I was watching nervously for a moment when Trump might change his extremely non-dictatorial response to the pandemic. His public speculation about imposing a possible quarantine on the tri-state area looked like it might’ve been such a moment. That’s why his quick rejection of his own suggestion was so meaningful.
The idea of the tri-state quarantine did have some hallmarks of an autocrat’s crisis response. It was dramatic and drastic, going beyond the recommendations of many public health experts.
The proposal also almost certainly exceeded the president’s lawful authority. Section 361 of the Public Health Service Act allows for the Centers for Disease Control to apprehend and examine anyone traveling across state lines who is “reasonably believed to be infected with a communicable disease.” On its face, this language doesn’t allow the federal government to block everybody from leaving an area where some people have the coronavirus. And it seems — I emphasize seems — that no other federal statute authorizes state-wide quarantines.
The tri-state quarantine also could have been interpreted as targeting blue states. Using a crisis to punish political enemies is another move from the would-be dictator’s playbook.
These dangers associated with Trump’s suggestion are the reason it matters so much that, within 24 hours, he announced that he wouldn’t pursue it. Although neither I nor anyone else skeptical of the president will let our guard down in watching and reviewing his conduct, his decision to back down was laudable.
It’s also worth noting that Trump has so far shied away from invoking the full power of the Defense Production Act, which gives a president semi-dictatorial power to direct industry to meet emergency needs. Joe Biden is calling on him to do so. Whether invoking the DPA would actually save lives is an important empirical question that I can’t answer plausibly at the moment (nor, I suspect, can many others who are prepared to answer it). My point is simply that Trump is being less autocratic than his leading Democratic rival would like him to be.
As for delaying the election, if Trump were really inclined in that direction, he or his proxies would be out in the media insisting that mail-in ballots can’t work in November. So far as I can tell, he hasn’t said so or encouraged others to make the case. The result is that planning for mail-in voting is proceeding apace. That planning alone is enough to convey public confidence that the November 2020 election will be held.
In each of these instances, it’s possible to make up explanations for why Trump isn’t grabbing power. He favors industry, and so thinks DPA control is socialist or at least Democratic. He’s trying to avoid being held responsible for the consequences of the pandemic, so wants to pass blame for restrictive public health measures onto state governors. He could be afraid of how the markets would react to more drastic enforcement. He’s eager for the economy to rebound, and so is clinging to the fantasy that things will back to normal sooner rather than later.
I’m not rejecting or endorsing these speculations, all of which are plausible. And his attitude could change, given that we already know he isn’t afraid of flouting the law.
Regardless, the takeaway of Trump’s conduct thus far is that it doesn’t even vaguely resemble the conduct of a would-be dictator. The United States faces many risks from the current pandemic, and Trump’s poor leadership remains one of the greatest threats. But the threat of a presidential power-grab does not appear to be one of them.
This column does not necessarily reflect the opinion of Bloomberg LP and its owners.
Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”
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