Trump and the Logic of Racializing of Covid-19 (Blame it on the Immigrants)

There are four truths regarding the United States.  One is that it is a nation of immigrants. Two, it is perhaps the hardest hit country in the world with the coronarius.   Three, it is the richest  nation in the world.  Four, there is a US presidential election this year. Put these  four truths together and what do you get in an America under President Donald Trump?  An effort to blame the spread of Covid-19 on immigrants and immigration, thereby racializing the pandemic to hide his mismanagement of the crisis.
The United States is a nation of others.  No one, except for the original Indians, is native here.  Everybody came from somewhere else.  America sees itself as a melting pot of races, ethnic groups, religions, and nations.  Its history is one of welcoming, as it says on the Statute of Liberty in New York–”your tired, your poor,  your huddled masses yearning to breathe free, the wretched refuse of your teeming shore.”  The US is a nation of others, of strangers who have come for the American Dream.
Reports document that the US already has had more than 800,000 infected with the coronarius, with nearly 50,000 dead.  In a nation so wealthy and powerful, many wonder how it could happen, placing  blame on President Donald Trump’s initial refusal to acknowledge the disease, and then his failure of leadership in confronting it.  As a result, Trump’s approval ratings have gone down, potentially threatening his chances at re-election this November.
Don’t count Trump out yet.    Instead of taking responsibility for the US pandemic, he is replaying his trick from four years ago, blame it on the other.  Four years he successfully ran for president by promising to build a wall along America’s Mexican border to halt immigration.  He called immigrants rapists, murderers, and drug dealers.  He attacked Muslims and sought to halt their immigration.  Trump ran on racism.  Now he is doing it again.
First Trump called the coronarius the “China Virus.”  He blames leaders in China for lying about the virus, says the World Health Organization for incompetence, and now he wants to halt immigration to the US for 60 days.  Obviously the coronarius is not our fault; it is the fault of others.  Trump is linking the coronarius to race and immigration much in the same way that four years ago he connected crime and the economy to race and immigration.
Yes in the past America screened immigrants who had health problems or infectious diseases and it might be legitimate to do that now.  But that is not what Trump is doing with the 60-day immigration ban.  In fact, the ban has a lot of exceptions to it and it is also not clear the president has the authority to issue the ban anyhow.  Instead, simply announcing the ban, like calling for the wall, is enough.  For his supporters, shifting the cause of the pandemic and the shutdown of the economy to immigrants is no different from what he said and did four years ago and it got him elected.  It might work again in 2020.

No New Yorkers May Enter: May States Ban Residents from Other States From Entering to Protect Their People?

            

            Viruses do not stop at borders.  But can people infected with viruses be stopped at borders?  Could Pennsylvania stop a New Yorker from entering the state  whether suspected or not of being infected to protect its people? Already some US states are trying to prevent residents from other states from entering as they seek to fight the coronavirus epidemic.  This problem of cross-border infection will only intensify as some states begin to open up their economies or end their shelter-in-place orders over the next few weeks.  Allowing infected or even healthy people to travel interstate could jeopardize  public health measures to confine the coronavirus.  Do states have the authority to limit or ban individuals from entering their state to fight the pandemic?  Current constitutional law says no.

            States have broad authority over public health measures.  What is called their police power allows them to impose  quarantines over persons and livestock within their borders to prevent the spread of a virus.  Many states have authority to limit importation from other states' vegetation and animals that could bring with them parasites or disease.

            Yet this police power is not unlimited, especially when it comes to interstate commerce.  The US Constitution gives broad authority to Congress to regulate interstate commerce, preventing states from interfering with it or discriminating against  other states in an effort to protect their own businesses.  Yet in some cases the Supreme Court has allowed for some interference with  interstate commerce if the purpose of the regulation is non-discriminatory and it does not impose a severe burden.  Would limiting or banning residents from other states to limit the spread of the coronavirus qualify as an exception?  The answer is no for two reasons.

            One, the general police power exceptions are limited to goods, services, or  the instrumentalities of commerce.  By that, states may be able to restrict the flow of animals, produce, vegetation, and other goods into their state, but the rules are different when it comes to people.

            Unlike animals, food products, and other goods and services, people have constitutional rights.  Specifically, they have a constitutional right to interstate travel.  In the 1930s when the Depression kicked in and the farm crisis across the central plains grew, many farmers packed up and sought to move to places such as California.  John Steinbeck’s classic The Grapes of Wrath tells the story of Joad family moving west.  In 1937 California passed what was called  an “Anti-Okie” law making it illegal to bring into the  state "any indigent person who is not a resident of the State, knowing him to be an indigent person".  In Edwards v. People of State of California, 314 U.S. 160 (1941), the  Supreme Court ruled that this law violated the Commerce Clause.

            In the 1960s as various states enacted welfare or other public assistance measures, some feared that the poor would migrate to their state for the benefits.  In Shapiro v. Thompson, 394 U.S. 618, (1968), the Supreme Court ruled that such laws violated a  fundamental right to interstate travel.  After Congress had enacted welfare reforms given states more control over benefits, California and other states adopted laws allowing them to pay  lesser benefits  to recent immigrants from other states compared to residents for a certain period of time.  The Supreme Court Sáenz v. Roe, 526 U.S. 489 (1999), struck down these durational residency requirements as a violation of the Privileges or Immunities clause of the US Constitution.

            While in some situations the Court has upheld laws that treat residents and non-residents differently in cases involving college tuition at public schools or in matters of child custody, generally the Court has been firm in ruling that actions that involve a state discriminating against residents of another state are unconstitutional.

            There may be additional clause of the Constitution that prevent  these border bans.  The Due Process clause of the Fourteenth Amendment may make random or arbitrary stops at state borders illegal. There is also the Equal Protection clause of the Fourteenth Amendment which is a tool used to address discrimination.  Unfortunately, and no doubt many of the individuals who will get stopped at state borders will be people of color.  There is also the privileges and immunities clause of the Fourth Amendment to the Constitution too.  The point is that there are many constitutional clauses banning this type of state activity.

            Perhaps the coronavirus and  the needs of  abating a pandemic  might be treated differently by the courts, seeing its regulation as a neutral protection of public health within state regulation.   After all, a pandemic virus is different from indigency or welfare.  It would take  an extraordinary argument to show that banning interstate travel is the only way to address the virus and current case law does not support that measure.

Covid-19 and the Presidential Election: What if the States Picked the Electoral College Delegates?

What if we held a presidential election but  no one came?  The April  7, Wisconsin primary demonstrated the problems that occur when the right to vote and demands of presidential elections confront the reality of Covid-19 and shelter-in-place orders.  What if the coronavirus persists to the general election, impacting the ability of individuals to early vote or cast a ballot on November 3?  Ultimately, the states could select the presidential electors, or Congress could pick the president.  If so, who wins?

            Many worry about several presidential election scenarios.  One is that President Trump will postpone or cancel it.  Alone he cannot do that  because the date of federal elections is set by law as the first Tuesday following the first Monday in November.  Alone the president cannot cancel or move this date, unless somehow the Supreme Court would rule that the National Emergencies Act would allow him to override a law.  If it did, the Court would be going against the Wisconsin Supreme Court’s logic when it prevented Wisconsin Governor Tony Evers from issuing an executive order delaying the elections, ruling that the emergency powers given to him only allowed a setting aside of administrative rules and not statutes.

            Postposing the presidential election also does not work for constitutional reasons.  Section One of the Twentieth Amendment states that the term of the president shall end at noon on January 20.  If there is no election there is no president or vice-president after that date, with the vacancy then filled by then Article II, Section One, Clause 6 of the Constitution along with the Presidential Succession Act that would hand the presidency to the Speaker of the House, presumably Nancy Pelosi.

            Others have proposed expanding vote by mail as an option for 2020.  Congress is unlikely for partisan reasons to approve this, and even if it did it is not clear if all states have the infrastructure or capability to implement in time.  There are also questions about security, potential fraud, and the federal government overruling state election bureaus and telling them how to administer federal elections.

            There is one final failsafe—instead of holding elections to chose the presidential elections to pick the president, the states can go back and do what they originally did and what the Constitution allows—pick the electors themselves.

            Article II, Section One, Paragraph two entrusts to  state legislatures the authority to select the presidential electors.  As the Supreme Court reminded America in Bush v. Gore:  The “individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the Electoral College.”  It is merely by the grace of  state law we get to vote to select the electors who pick the president.  But nothing requires this, and presidential elections in the age of Covid-19 means state legislatures, in a public health crisis, could simply select the electors themselves.

            While letting state legislatures pick the electors may not be a good idea, consider what would happen if they did. It takes 270 electoral votes to win the presidency.  According to  Ballotpedia, there are 21 states where Republicans have a trifecta—controlling both houses of the legislature and the governorship—and Democrats have that in 15 states.  Assuming in those 36 states straight party line votes would award electoral votes by party, Donald Trump would start with 216, Joe Biden, the presumptive Democratic nominee, would have 195.  This leaves 14 states, with 127 electoral votes under split control.  These states are: Alaska, Kansas, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Montana, New Hampshire, North Carolina, Pennsylvania, Vermont, and Wisconsin.  Again, according to Ballotpedia, of these 14 states, there are several where the legislatures have large enough majorities that they can override  the governor.

This means  move Kansas’ and Kentucky’s electoral votes to Trump since the Republicans control both house of the legislature and a simple majority can overrule the Democratic governor, and he  has 230.  Move  Maryland and Massachusetts to Biden along with  District of Columbia’s three electoral votes and he has 216.  This leaves 10 states, with 92 electoral votes under split control.

How might those remaining states vote?  Assume a compromise in each state where they allocated proportionally based on congressional districts and splitting the two electoral votes each state receives based on having two senators.  This adds ten electoral votes to each (Trump 240, Biden 226).  Now assume the distribution of electoral votes in these remaining ten states follows the congressional voting patterns in 2016.  Of these 72 districts, Trump won 50 in 2016 and Clinton  won 22.  Award these  the same to Trump and Biden and  2020, Trump wins the presidency with 290 electoral votes to Biden’s 248.

Alternatively, assume these ten states cannot hold November 3, elections and cannot reach a compromise on  how to award the electoral votes.  With neither Trump nor Biden possessing the required 270 electoral votes, Article II, Section One, Paragraph Three and the Twelfth Amendment call for the House of Representatives to pick the president, with each state getting one vote and the winner needing a majority of the states.  However, this is the House elected in November 2020, and they would not vote until sworn in, in January 2020. Currently, even though Democrats have an overall majority in the House, Republicans maintain a 26-22 partisan majority control of state congressional delegations, with Michigan and Pennsylvania tied.  Assume no shift in partisan control, Trump wins. 

Canceling the popular vote to select the electors and decide the presidential race is a highly unlikely scenario.  But were it to occur the odds presently favor a Trump victory again in the electoral college, or  possibly in the House were it to go that far.

Is It Ever Ethical For Government Officials to Lie in the Name of the Public Good?

May government officials lie for the public good?  Responses to the Covid-19 crisis raise this question.  President Trump was accused of downplaying the pandemic to avert panic. The Minnesota Department of Health initially refused to name assisted living facilities in the state infected with the disease to protect privacy and perhaps to downplay fears.  No matter how noble or well-meaning, it is never appropriate for government officials to lie in the name of the public interest. 

Lying is considered wrong.  Yet white lies, such as “Yes Virginia, there is a Santa Claus,” are accepted to promote happiness.  Lies to children, the ill, or vulnerable are deemed okay to protect them. Hyping a resume or product is  defended  to get a job or sell a product. At one time it was acceptable to lie to dying patients so as not discourage them, but that is no longer a permissible medical ethics practice.  Despite a general cultural admonition to tell the truth, we create many exceptions to that rule.

Do these exceptions extend to public officials?  Is there a just lie? Should elected officials be allowed to lie to the public during the Covid-19 pandemic to shield them from bad news, prevent panic, or encourage them and make them feel better?  However tempting, lying in the name of the public interest is wrong.

“You can't handle the truth” is the most famous line from the 1992 movie A Few Good Men.  Lying for the public good is premised upon this notion. The public cannot handle the truth, candor can be destructive, and lying will produce more good than bad.  Lying to the public, for good reason or intention, promotes good social outcomes in dire times, such as with the death and destruction associated with the Covid-19 pandemic.

There are several problems with arguing that lying to the public is ethically permissible.
One, the correctness of lying is justified is left up to public officials and not the people to decide.  How do we know they are making the right decisions about what the public can bear if the latter lacks the information to make a judgement on what is right or wrong?

Two, how do we know the public official is lying or withholding information for the right reasons or motives?  It is easy for an official to say that my motives are well-meaning, but is that always the case?  Might not the basis for withholding information be to hide mistakes, avoid accountability, or simply further one’s own electoral or political interests?  Letting public officials decide on the rectitude of their lies is a form of conflict of interest, letting them be the final judge of whether they are acting in the public good or abusing their position.

Three, once a public official has lied, they have lost all of their credibility.  Years ago a local school superintendent lied to the public about a possible shooter in that district.  In closing the schools the superintendent offered a different reason for the closure.  Afterwards many said they could never trust the superintendent again.  How would they know in the next emergency or even routine decision whether the answer was truthful or a lie?  In part the erosion of public confidence and legitimacy of government stems from questionable veracity.

Four, lies might put more people at risk than telling the truth. People act in reliance on information they receive from public officials.  Giving false or misleading information may force people into making choices or assessing situations that put them at more risk than would telling the truth.

Five, in a free society the public is entitled to the truth and adults need and deserve correct information to hold the government accountable and make the appropriate decisions.  Lying for the public good treats adults like children, asserting they and not adults know what is in their own best interest.

Overall, perhaps withholding information to protect privacy is permissible and when at war to protect troops or  trick the enemy.  But intentional lying to the public is never justified as an ethical policy choice.