NAPOLITANO: The Temptation of Tyranny
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NAPOLITANO: The Temptation of Tyranny

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Does the president of the United States have too much power?

That question has been asked lately with respect to President Donald Trump’s use of federal funds to construct 175 miles of sporadic walls along a portion of the 2,000-mile common border between Texas and Mexico. After Congress expressly declined to give him that money, Trump signed into law — rather than vetoed — the legislation that denied him the funds he sought and then spent the money anyway.

It has also been asked with respect to his imposition of sales taxes — he calls them tariffs — on nearly all goods imported into the United States from China, taxes that only Congress can constitutionally authorize. And it has been asked in connection with the presidentially ordered mistreatment of families seeking asylum in the United States by separating parents from children — in defiance of a court order.

This question of presidential power is not an academic one. Nor is it a question unique to the Trump presidency, as it has risen numerous times before Trump entered office. But the audacious manner of Trump’s employment of presidential powers has brought it to public scrutiny.

Here is the backstory:

The Constitution was written in the aftermath of the American Revolution, a war fought against a kingdom, most of whose domestic subjects articulated that the king had been chosen by God to rule over them.

The colonists in America, prodded by radicals like Sam Adams, Patrick Henry and Thomas Jefferson, profoundly rejected that idea. They argued that each individual was sovereign and a repository of natural rights. Jefferson articulated as much in the Declaration of Independence.

So, when it came time to craft a new government here, the drafters of the Constitution, led by Jefferson’s friend James Madison, made certain that there would be no king. Congress would write the laws. The president would enforce them. The judiciary would interpret them. This separation of powers is what the late Justice Antonin Scalia called the most unique and effective aspect of American government.

Why is that?

For starters, Madison feared the accumulation of too much power in any one branch of the government. With the exception of the uniqueness and violence of the Civil War, for 130 years, the branches remained within their confines. For that matter, the federal government did so as well.

The colonists in America, prodded by radicals like Sam Adams, Patrick Henry and Thomas Jefferson, profoundly rejected that idea. They argued that each individual was sovereign and a repository of natural rights. Jefferson articulated as much in the Declaration of Independence.

So, when it came time to craft a new government here, the drafters of the Constitution, led by Jefferson’s friend James Madison, made certain that there would be no king. Congress would write the laws. The president would enforce them. The judiciary would interpret them. This separation of powers is what the late Justice Antonin Scalia called the most unique and effective aspect of American government.

Congresses and presidents accepted the Madisonian view that the federal government could only do what the Constitution affirmatively authorized them to do, and all remaining governmental tasks would be addressed by the states. This, too, was part of Madison’s genius in order to impede the concentration of too much power in the hands of too few.

All that changed when a former professor of constitutional law — who was not a lawyer — entered the White House. Woodrow Wilson believed and behaved as though Congress could legislate any problem for which there was a national political will, except that which was expressly prohibited by the Constitution.

The Wilsonian view of government and the Madisonian view of government are polar opposites.

At the same time that Wilson was turning the Constitution on its head, he was also signing legislation that created the agencies of the administrative state.

These agencies, he argued, should be filled with experts in their fields — the Food and Drug Administration, the Federal Trade Commission, to name a few — because experts would bring better government.

The agencies were authorized to write regulations that have the power of law, to enforce those regulations and to interpret them. This slippage of constitutional authority to creatures alien to the Constitution — which branch of government are they in? — masked a parallel slippage of power from Congress to the presidency.

Just as Wilson persuaded Congress that the feds needed experts to run parts of the government, he and his successors persuaded Congress that the presidency should be the repository of emergency powers.

The Constitution does not authorize any emergency powers; nevertheless, the War Powers Resolution lets the president fight any war for 90 days without congressional authorization, even though the Constitution makes clear that only Congress can declare war. Other national emergency statutes give presidents short-term near-dictatorial powers — like imposing taxes by calling them tariffs — without defining what is an emergency.

Scalia railed against all this — and the Supreme Court often struck down power transfers from Congress to the president. It did so not to preserve the institutional integrity of Congress but to uphold the principle of the separation of powers that Madison crafted as a bulwark against tyranny. The constitutional allocation of power among the branches is not for them to alter.

Its equilibrium was intended to maintain tension and even jealousy among the branches — and thereby undergird personal liberty. Madison’s articulated fear was “a gradual concentration of the several powers in the same” branch. Scalia called this gradual concentration of power in the presidency a wolf in sheep’s clothing that became a bare naked wolf.

After years of faithless Congresses legally but unconstitutionally ceding power to the presidency, we have arrived where we are today — a president who spends unappropriated funds, raises taxes, defies courts and changes immigration laws on his own. I have written before that the Republicans who rejoice in this will weep over it when a Democrat is in the White House. No president should have unconstitutional powers.

I have also written that the guarantees of the Constitution — separation of powers foremost among them — are only effective when the folks in whose hands we repose the Constitution for safekeeping are faithful to their oaths to uphold it.

When they are, our freedoms flourish. When they aren’t — power abhors a vacuum — the temptation of tyranny arises.

Judge Andrew P. Napolitano is the youngest life-tenured Superior Court judge in the history of the State of New Jersey. Now, Napolitano works as Fox News’ senior judicial analyst and writes a syndicated column.

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Small news organizations in rural states aren’t often on the front line of broad public service journalism, but times are changing and one-or-two person shops can make a lot of difference in public awareness of issues if things come together.

A small outbreak of coronavirus at a Fry Foods plant in Weiser gives a prime example of the importance of testing for COVID-19. More than that, it represents a warning shot across the bow of potential pitfalls if we don’t reopen our economy the right way.

As we tiptoe through Stage 2 of Gov. Brad Little’s phased reopening plan and approach a more robust Stage 3, it’s going to become even more important that we take the necessary steps to prevent future outbreaks.

And there will be future outbreaks.

The fact remains that the novel coronavirus that causes COVID-19 is still out there. It’s ready to strike again, and without a vaccine, it remains a potentially destructive and fatal disease.

Aggressive and quick testing remains one of the key elements — perhaps the most important element — of controlling outbreaks at this point.

Fry Foods offers an early case study.

The Weiser food processing plant employs 260 people to make onion rings and other food products. It shut down earlier this month when at least seven employees tested positive for the coronavirus.

Fry Foods initially didn’t test all 260 employees at the Weiser facility — only the 50 or 60 who likely came in contact with the employees who tested positive. Other employees were able to get tested on their own.

The Idaho Bureau of Laboratories (state run-laboratories) tested all that they had the capacity to do in one day, according to Kelly Petroff, director of communications for the Idaho Department of Health and Welfare. The state lab can do about has a testing capacity of approximately 200 tests per day.

“We are not prepared to handle this,” Doug Wold, human resources manager for Fry Foods, told the Idaho Statesman, referring to the lack of coordinated response. “If you don’t have an employer who’s willing to be proactive, we’re just going to fail.”

Fortunately, Crush the Curve Idaho, a private, business-led initiative established during the outbreak to increase testing, stepped in and tested every employee at Fry Foods.

By Tuesday of this week, 20 employees — about 8% of the plant’s workforce — had tested positive for the coronavirus, along with at least two of their family members. Nearly all were asymptomatic.

RAPID-RESPONSE TESTING

That’s what needs to happen: rapid-response testing. If you have an outbreak at your workplace, get everyone tested. For those who test positive, keep them home and isolated. For those who test negative, they can keep on working and you’re back in business.

When the outbreak hit Fry Foods, company officials made the decision to shut the plant down.

Without adequate testing, that’s unfortunately the right thing to do. Without testing, you have no idea whether you have seven infected employees, 70 or 270.

We applaud Fry Foods company officials for making the tough call to shut down, even though they were given the green light by the Southwest District Health Department to resume operations.

Coronavirus is stealthy. A person can carry coronavirus longer without symptoms, potentially spreading to others unwittingly. Some people who carry coronavirus have no symptoms at all.

We are encouraged that Crush the Curve Idaho stepped up and stepped in here.

But Idaho needs a more concerted and organized plan to do rapid-response testing.

We are a fragmented health system. Health providers include Saint Alphonsus, St. Luke’s, Primary Health, Saltzer, among others. Then think about all the entities who pay for health care: Blue Cross of Idaho, Regence BlueShield, PacificSource, SelectHealth, etc. Throw in Medicare, Medicaid and those who are uninsured.

Even our own government health management system is fragmented, with the Idaho Department of Health and Welfare and seven independent health districts not operated by the state.

And, in the case of Fry Foods, situated in a city bordering Oregon, workers were from two states.

NO COORIDINATED EFFORTS

No wonder Fry Foods officials were at a loss for where to turn for help. Without some sort of coordinated effort to test all employees and somehow pay for those tests, shutting down the plant was the best option.

It’s worth noting that the Fry Foods employee who initially had coronavirus was at a family gathering of a larger number than outlined in the governor’s reopening plan and was with visitors from out of state, two violations of the governor’s guidelines. That’s why we have the guidelines, and that’s why it’s important to follow the guidelines. Otherwise, this is what you get: an outbreak that shuts down an entire food manufacturing plant.

Unfortunately, shutting down operations every time there’s an outbreak is not going to get the job done.

And there will be more outbreaks as we reopen our economy, reopen factories and workplaces.

Idaho has a lot to be optimistic about, and we have a golden opportunity to lead the nation in reopening our economy in the face of the coronavirus pandemic. We have had relatively few cases (around 2,300) and few deaths (77). Our early efforts to shut down parts of our social interactions and Little’s quick call to issue a statewide stay-home order clearly have paid off. Idahoans’ adherence to the stay-home order has helped to flatten the curve and control the number of new cases. Residents and businesses, alike, have done their part to make this happen.

Our hope is that Idaho can chug along through the stages of reopening. Our fear is that if we don’t do this the right way, we’ll have a surge and we’ll be back to a statewide stay-home order. Nobody wants that.

If Joe Biden is counting on African American votes to win the White House in November, he may want to reboot his outreach strategy. During a radio interview Friday morning with Charlamagne tha God on the nationally syndicated, "The Breakfast Club," Biden said that "if you have a problem figuring out whether you're for me or Trump, then you ain't black." It took a handful of nanoseconds for the ...

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