Response to Coronavirus Provokes Debate About Constitutionality

WASHINGTON, DC — For the past several weeks one lawmaker, Republican Congressman Thomas Massie, stood out from the rest in vocal opposition to the emergency actions being taken by state and federal leadership in response to the coronavirus pandemic.

“I don’t think we should throw out the constitution because we have an emergency,” he told Spectrum News 1 Kentucky in an interview last month.

Adam White, a resident scholar at the right-leaning American Enterprise Institute, says this crisis should provoke this type of debate.​

“Times like this, extraordinary threats to public health and safety, they spur all parts of government to try new things, sometimes extraordinary things and force us all to ask again what does the constitution really allow,” he said.

White, who also serves as a law professor at George Mason University, is firmly against President Donald Trump’s proposal to adjourn Congress for the first time in the nation’s history to make recess appointments.

“It is that part of the constitution that intended for the Senate to play a very strong role in the staffing up of government.”

He says governors have significant latitude but have to be careful.

“The lead case from the Supreme Court 115 years ago, it’s called Jacobson vs. Massachusetts, even in that case, they did say that a quarantine can’t be unreasonable in going far beyond the actual requirements of public health,” he said.

White is encouraged by the Supreme Court’s historic move to hold oral arguments via teleconference and fears Congress hasn’t acted quickly enough to adopt similar measures that would allow for remote voting and remote hearings.

“Congress is withering on the vine. Congress’ failure to continue to really engage in an ongoing legislative process is worrisome,” he added.

House Majority Leader Steny Hoyer says the body is expected to vote on a rules change to allow for voting by proxy this week.