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Coronavirus and the State-of-Emergency Pandemic

Photograph by Nathaniel St. Clair

You never want a serious crisis to go to waste. And what I mean by that [is] it’s an opportunity to do things that you think you could not before.

– Rahm Emanuel

A silent pandemic is sweeping the nation and across the globe, the panic of the ever-expanding authoritarian state. The coronavirus medical emergency is legitimizing the ever-increasing power of a vigorous state apparatus operating at the federal, state and local levels. The great challenge is what will happen to these powers when the current Covid-19 epidemic is contained?

The U.S. has joined more than a half-dozen European countries to impose a state of emergency on its people. Within the European Community, Armenia, Estonia, Georgia, Latvia, Moldova and Romania have declared a state of emergency; Italy and Spain have imposed states of emergency under their respective constitutional provisions. Hungary, under Viktor Orban, is moving closer to a dictatorship. And still other countries — most notably China — have used the coronavirus epidemic to strengthen state power.

On March 13th, Pres. Donald Trump declared a national state of emergency, invoking what is known as the Stafford Act. According to Just Security, the Act “empowers” Dept. of Homeland Security’s FEMA “to assist state and local governments in responding to the outbreak by coordinating relief efforts and through the release of a reported $50 billion in funding.” The Act was previously invoked in 2000 by Pres. Bill Clinton in response to outbreaks of West Nile Virus in New York and New Jersey. Going further, it warns, “Throughout history, public health has been used as rationale for limiting rights, legitimately and illegitimately.”

The Brennan Center reports that in addition to the Stafford Act, a president can invoke more than 100 statutory powers to declare a national emergency. It notes that Trump invoked the National Emergencies Act — 10 U.S.C. 2808 (a) — to help build the Mexican border wall. It adds, “an additional 13 statutory powers become available when a national emergency is declared by Congress.”

Trump opined in January: “Because of the tremendous dangers at the Border, including large scale criminal and drug inflow, the United States Military will build the Wall!” He followed up, insisting: “We can call a national emergency because of the security of our country … I haven’t done it. I may do it … We can call a national emergency and build it very quickly.”  In March, he used the emergency to rationalize building the wall to halt the coronavirus.

In March, the Trump’s Justice Department upped the ante of the expanding security state when — as reported in Politico — it “quietly asked Congress for the ability to ask chief judges to detain people indefinitely without trial during emergencies — part of a push for new powers that comes as the novel coronavirus spreads throughout the United States.”

It sought to enable the Attorney General to pause court proceedings “whenever the district court is fully or partially closed by virtue of any natural disaster, civil disobedience, or other emergency situation.” And that this power would apply to “any statutes or rules of procedure otherwise affecting pre-arrest, post-arrest, pre-trial, trial, and post-trial procedures in criminal and juvenile proceedings and all civil process and proceedings.”

Seeking to obfuscate a likely Congressional rejection, the DOJ quickly back peddled. A department spokeswoman argued that the proposals were made to “promote consistency” and would empower judges, not the executive branch. “The goal of these provisions (is) to ensure that the justice system continues to operate equitably and effectively, and to harmonize what is already being done on an ad hoc basis by courts around the country,” she wrote. “Bottom line: The proposed legislative text confers powers upon judges. It does not confer new powers upon the executive branch.” If you believe that, I’ve got a bridge in Brooklyn for you.

***

Since the coronavirus emerged in Washington state in January, governors and mayors across the country have decried not only Trump’s inept leadership but his administration’s failures as well. Innumerable officials have raised concern over the lack of testing equipment, masks, ventilators and other needed personal protection equipment. This occurred at the same time when, according to Mother Jones, the federal “government sent nearly 17.8 tons of donated medical supplies to China” and State Department “agency announced it was prepared to spend up to $100 million to assist China as the number of COVID-19 cases and deaths continued to rise there.”

The tension between governors and the president is exemplified by the contentious jousting match been Andrew Cuomo (D-NY) and Trump. Cuomo represents the battle underprepared local officials are waging to contain the ever-expanding virus; Trump appears at his daily press briefings as if at a campaign rally in which only information that makes him look good is presented. This tension recently came to a head when Trump proposed the following:

We might not have to do it, but there’s a possibility that sometime today we’ll do a quarantine, short-term, two weeks on New York. Probably New Jersey, certain parts of Connecticut. This would be an enforceable quarantine. I’d rather not do it, but maybe we need it.

Cuomo quickly responded, “It’s a preposterous idea, frankly.” And added, “Why you would want to just create total pandemonium on top of a pandemic I have no idea.” He explained, “You wouldn’t at this point literally fracture the entire nation because it’s not just New York, New Jersey, Connecticut, it’s Louisiana and New Orleans. The numbers will continue to rise and every few days it’s going to be another hotspot.” Trump withdrew his proposal.

Faced with the mounting crisis, Cuomo declared a state of emergency in early March. According to some reports, the law expanded his administrative power and provided him with $40 million to fight coronavirus. It enables him

to issue edicts “necessary to cope with” potential disasters, ranging from a “disease outbreak” to a volcanic eruption. He defended his new power, saying to reporters, “You recognize the law is deficient, you recognize just suspension of a law doesn’t give you the ability to do anything affirmative,” Cuomo said rhetorically. “Fix it for this situation, but don’t fix it for the other situations?”

Cuomo’s enhanced executive authority raised the ire of some. Manhattan Assemblyman Richard Gottfried argued that no past governor has ever asked for the powers Cuomo requested during any previous public health emergencies. “The governor and health commissioner have, for decades, had extraordinarily broad executive powers.” He went on, “I’ve never heard a governor or health commissioner in any disaster or emergency say that there was something that needed to get done that couldn’t get done because of a lack of what this bill does.”

Cuomo isn’t alone among governors to invoke executive authority in an effort to contain the coronavirus outbreak. Al Jazeera provides an overview assessment of how all the states – as of March 31st — have responded to the epidemic, including those that have invoked a state of “public health” emergency. Their executive actions include:

+ Closing public schools – e.g., Alabama, Alaska, Arizona, California, Colorado, Connecticut, Florida, etc.

+ Closing public libraries, museums, parks, etc. – e.g., Alaska, Hawaii.

+ Closing of “nonessential businesses (e.g., bars, eateries, wineries, cinemas, casinos, racetracks, fitness centers, bowling alleys, private clubs, tattoo parlors, nail salons, barber shops and other public spaces — except for take-out – e.g., Alaska, Colorado, Connecticut, Indiana, New Jersey, New York, Washington, DC.

+ Imposing stay-at-home/shelter-in-place orders – e.g., California, Colorado, Delaware, Illinois, Michigan, Minnesota, New Mexico, Vermont.

+ Have hospitals postpone elective or non-essential surgeries — e.g., Indiana, Kentucky, Massachusetts.

+ Restrictions on visitors to elderly care facilities, hospitals, prisons and daycare centers — e.g., Texas, Washington.

+ Quarantine restrictions — e.g., Hawaii (on tourists).

+ Delay political primaries – e.g., Indiana, Louisiana.

There are individual variations of implementation within these categories. For example, in Florida bars close at 5 pm and public beaches remain open; some states (e.g., California) imposed mandatory restraints while others (e.g., Idaho) encouraged voluntary compliance; and there are variations on restricted crowd size (e.g., 250 in Tennessee and Texas, 100 in Utah, 50 in Illinois and Kansas, 25 in Rhode Island, 10 in Iowa and Nebraska).

For all the states that imposed some form of emergency decree, there are common exemptions. They include (i) people covered (e.g., “essential workers” list doctors and nurses, police and firefighters as well as Amazon workers and UPS drivers); (ii) businesses covered (e.g., grocery store, pharmacy, doctor’s office) and (iii) activities covered (e.g., getting groceries, exercise).

Some states have yet to order the closure of major businesses, restaurants or bars, including Mississippi, Missouri, North Dakota, Oklahoma, Tennessee and Wyoming. And Texas adopted a “patchwork” of local regulations allowing cities, counties and school districts to adopt proprietary approaches to the virus.

Finally, on March 22nd, Trump announced the National Guard would be deployed to assist in efforts to contain the virus in California, New York and Washington State.

It should also be noted that some mayors and city administrators have also declared a local state of emergency. Such actions have occurred in big cities like New York and smaller cities like Albuquerque as well as towns like Bellingham (WA) and the Minooka Village (IL).

***

The U.S. has a long way to go to before it returns to the society that existed before Covid-19. Addressing the immediate pandemic is one thing; providing a successful antibiotic something else; and still more troubling is preparing for recurring round(s) of the disease and/or the possibilities of still other viruses yet to come. Equally troubling, Trump’s cheer-leading about a great economic recovery that will arrive once the coronavirus is contained is a political fiction. As history sadly shows, the Great Depression was only truly ended with the coming of WW-II.

The current pandemic has exposed fundamental problems with the nation’s health-care infrastructure, and it will likely have to be rebuilt as the country recovers. The rebuilding of the U.S. economy – let alone the globalized system – will take months if not years to achieve. More troubling, the epidemic will likely only exaggerate the social crisis that Trump’s presidency sought to mask. This festering crisis includes deepening inequality, growing despair, increased suicides, mounting drug overdoses and rising levels of family abuse.

The post-Covid-19 recovery will likely be marked by high levels of unemployment or underemployment (especially among “gig” workers and “independent contractors); innumerable closing of retail outlets, restaurants and mid-market businesses; and staggering levels of evictions of renters with accompanying homelessness. More troubling, there might be a significant increase in crime, whether by scam artists, street muggings, car thefts and house break-ins. This situation might well exaggerate social tensions, leading to increased white racist attacks on “immigrants” and other people of color, among others.

Under such conditions, the new era of enhanced emergency authority required to address a pandemic could easily provide the justification for greater police and military control of civic life. And no one is better situated to push such an agenda then an insecure, aggressive and autocratic president.

Limits to the deployment of the military personnel to address civil conflicts fall broadly under what’s known as the Posse Comitatus Act. It was adopted during the early days of the Jim Crow era (1878) to enforce racial segregation in the South. Its purpose was to block federal troops from policing the South by limiting federal troops deployed on U.S. soil and prohibiting them from enforcing domestic laws. Members of the Army, Navy, Air Force and Marine Corps are prohibited from engaging in direct law enforcement activities, including search, seizure and arrest. Troops can only be deployed during an insurrection or invasion on U.S. soil; currently, the Coast Guard is exempt from these restrictions for drug enforcement purposes. The president must secure such authority from the Congress.

The challenge facing the nation is not “merely” containing and recovering from the coronavirus but protect the nation — and its people — from the pandemic of emergency state authority.

David Rosen is the author of Sex, Sin & Subversion:  The Transformation of 1950s New York’s Forbidden into America’s New Normal (Skyhorse, 2015).  He can be reached at drosennyc@verizon.net; check out www.DavidRosenWrites.com.

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