Trump Can’t Play Politics With Aid to States

The national fight against the spread of the novel coronavirus demands a leader who can take charge of and defeat a grave threat, and who can put partisan politics aside to create a shared sense of national purpose. Instead, President Trump appears to be making—and is certainly threatening to make—decisions about how vital medical equipment should be distributed to states based at least in part on political considerations.

But, as we will explain in more detail below, the Constitution forbids the Trump administration from allocating federal resources needed in the fight against the coronavirus to states based on politics or patronage. The Take Care Clause requires the president to act for the benefit of all Americans, not just political allies. The Tenth Amendment prevents the president from conditioning states’ receipt of federal aid on their governors’ fealty to his administration. The Fifth Amendment prohibits the president from depriving states’ constituents of lifesaving medical resources in ways that shock the conscience and violate the decencies of civilized conduct. And the First Amendment prohibits the president from withholding assistance to states to punish either their governors for criticizing the president or residents of politically disfavored states for associating with an opposing political party.

The Public Record on Possible Discriminatory Allocation of Resources

While it is not yet clear whether the president has in fact withheld aid for the purpose of punishing political enemies or disbursed aid to cater to political allies, he has certainly threatened to do so. And there is growing evidence that he has carried out those threats to at least some extent.

Much of the current uncertainty stems from a near total lack of transparency about how and where aid is being disbursed, which creates a situation that both is ripe for abuse and makes any abuse difficult to pin down with certainty. The Federal Emergency Management Agency has failed to provide any public accounting of the basis on which it is distributing (and seizing) resources or a summary of the resources provided to various states to date. And without any clarity, it is impossible to know if and when the federal government is disbursing aid fairly. The Department of Health and Human Services—which initially oversaw the federal government’s response to the virus—suggested that it was distributing personal protective equipment (PPE) on the basis of population. But that policy did not apply to ventilators, and there’s nothing in the public record to confirm that the department actually disbursed PPE proportionate to population size.

Additionally, Trump has openly insulted Democratic governors who have publicly criticized him, calling Washington’s Jay Inslee a “snake” and Michigan’s Gretchen Whitmer “the woman in Michigan” and “half-Whit.” Worse, he has accompanied his insults with repeated suggestions that he would condition federal assistance to states based on politics and the willingness of governors to praise him. In one recent press conference, he claimed to have instructed Vice President Pence not to return the calls of unappreciative governors. He has accompanied approvals of requests for aid with shoutouts to his political friends, as he did with embattled Colorado Republican Sen. Cory Gardner—just days after he blocked Democratic Gov. Jared Polis from purchasing 500 ventilators. Democratic governors have also reported federal government interference with states’ market activity to procure necessary supplies from private vendors. On other occasions, Trump has reiterated the refrain that governors need to “treat us well” in order to get help for their residents.

Trump has also repeatedly told governors at the epicenter of the pandemic—most of them from blue states—that they don’t need the volume of equipment from the federal stockpile of ventilators and PPE that they have requested. In contrast, there’s evidence that the president is ensuring that states with Republican governors get what they ask for. Two days after vulnerable Arizona Republican Sen. Martha McSally communicated Gov. Doug Ducey’s request for 100 ventilators, the president delivered. And Trump provides for his political allies even when those governors are not complying with federal guidelines on mitigating the spread of the virus. Gov. Ron DeSantis of Florida, for example, who kept beaches open to crowds of spring break revelers and refused for weeks to issue a statewide stay-at-home order, has been the beneficiary of Trump’s favorable attention. “The president knows Florida is so important for his reelection,” one source told the Washington Post. “He pays close attention to what Florida wants.”

In the midst of a pandemic that may kill hundreds of thousands of Americans, any effort to use federal medical resources as a carrot or a stick to reward allies or punish enemies would be a grave and unconstitutional abuse of power.

Fortunately, emergency brakes are interspersed throughout the Constitution as restraints on the conduct of the president and the executive branch.

Constitutional Limits on Discriminatory Allocation of Federal Resources

Take Care Clause

The clause of the Constitution that is perhaps most directly responsive to the president’s conduct is the Take Care Clause, which imposes on the president a fiduciary duty to “take Care” that the laws are “faithfully executed.” This duty is, of course, echoed in the president’s constitutionally inscribed oath of office, in which the president swears to “faithfully execute the Office of President.” As a fiduciary of the American people, the president has two principal duties: a duty of care, which means a duty “to act with the care, competence, and diligence normally exercised” by someone in their position; and a duty of loyalty, which means a duty to act for the benefit of the American people rather than for the president’s own personal benefit. The Founders spoke of the duty of loyalty in terms of trusteeship; the president is a trustee of the office, the Constitution, and the laws, on behalf of all of the American people.

Any order to federal agencies or pressure on vendors to discriminate among states based on politics or personal fealty would violate both the president’s duty of care and his duty of loyalty. In these circumstances, the duty of care requires that the president diligently work to ensure the distribution of resources so as to effectuate relevant statutes (for example, the Stafford or CARES Acts) and advance the public good (for example, to reduce loss and suffering of the American population writ large); for the president to act on his insinuations that he will instead distribute aid based on political and personal allegiance would plainly lack the basic diligence and care required.

As with Trump’s withholding of aid to urge Ukraine to investigate his political rivals, withholding coronavirus aid from states based on politics would violate his duty of loyalty. The president’s repeated message to states that he will deny lifesaving federal aid to those whose governors are insufficiently reverent flips the duty of loyalty on its head. Rather than offering loyalty to the American people, Trump demands personal loyalty, and he is risking lives to get it. Of course, we’ve seen Trump run that play before: He did it with aid to Puerto Rico after Hurricane Maria and to California after its deadly wildfires.

Any discriminatory allocation of aid would violate the president’s duty of loyalty in another respect. The president owes this loyalty, at a bare minimum, to “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof,” regardless of the state where they live, the governor they elect or the presidential candidate for whom they vote. This principle is embedded throughout the Constitution, from its Equal Protection Clauses to the Domestic Emoluments Clause, which Alexander Hamilton explained was designed to prevent the president from “renounc[ing] or desert[ing] the independence intended for him by the Constitution” through, for example, states competing to “appeal[] to his avarice.”

The president’s duty of uniform loyalty to Americans in all states is also reflected in the Supreme Court’s equal sovereignty doctrine. The Supreme Court has long recognized that “the constitutional equality of the States is essential to the harmonious operation of the scheme upon which the Republic was organized.” Although the equal sovereignty principle does not operate as a bar on differential treatment of states outside the context of admittance to the union, it “remains highly pertinent in assessing subsequent disparate treatment of States.” In particular, the Supreme Court has said that a state may not be “singled out” for differential treatment absent a showing that this discrimination is “sufficiently related to the problem that it targets.” We think there are good reasons to believe the same principle applies when the federal government doles out resources to states that will mean the difference between life and death for states’ residents. In singling out for adverse treatment those states whose governors do not show sufficient fealty, the president would violate this duty of uniform loyalty.

Admittedly, whether the Take Care Clause is a judicially enforceable constraint on the president such that a Take Care claim presents a justiciable controversy is an open question. But the Supreme Court recently suggested that Take Care claims are justiciable. In United States v. Texas, the Supreme Court granted certiorari and of its own accord directed the parties to address whether the Department of Justice’s Deferred Action for Parents of Americans and Lawful Permanent Residents policy “violate[d] the Take Care Clause of the Constitution, Art. II, §3.” The court never reached the issue, as Justice Antonin Scalia died a month later and the court, equally divided, summarily affirmed the decision of the U.S. Court of Appeals for the Fifth Circuit.

We also note that impeachment provides the more traditional mechanism for enforcing the president’s obligation to take care that the laws are faithfully executed. Abusing public office by discriminatorily allocating federal resources for political gain could very well amount to the kind of “high crimes and misdemeanors” the Impeachment Clause Advertise on IT Security News.