Comparing Pandemic Leaders in Three Capitals

April, 2020

Washington, Lincoln, Berlin – Although I'm in the Maryland suburbs of Washington until travel is once again possible, this post will look at three responses to the coronavirus pandemic by the German chancellor and by the governors of Maryland and Nebraska.  All three leaders describe themselves as political conservatives.

• Chancellor Angela Merkel has been a model of leadership in directing the German effort.  She acted early and decisively.  Berlin developed the first Covid-19 tests; contact tracing was started immediately; all but essential businesses were closed; stay-home and social-distancing orders were put quickly into effect and enforced by police.  Merkel addressed the nation to explain the science behind the combating the pandemic – she is a physicist by training – and has urged national unity.  Germany, along with South Korea, Taiwan, and New Zealand, has to date been notably successful in the fight against the infection.  Germany is looking to reopen its economy, cautiously.

•  Governor Larry Hogan of Maryland also acted early to put social distancing and stay-home orders into effect, along with school and business closings.  He has been hampered in performing tests by a shortage of testing supplies, but has not hesitated to focus attention on the source of that problem: the U.S. federal government's slow response to the pandemic and its failure to take charge of supply chains under the Defense Production Act.  Governor Hogan made arrangements with the government of South Korea for testing and protective equipment.  He is currently chairman of the National Governors Association and speaks for many governors.   Maryland has flattened the curve of the infection rate somewhat, for which Hogan gets much credit, but it is not yet at a point to re-open its economy significantly.

•  Governor Pete Ricketts of Nebraska got a good head start on controlling the coronavirus because Nebraska schools were out of session when the virus started its spread.  He closed non-essential businesses and limited group gatherings, but only recommended stay-home measures, rather than enforcing them.  When a virus outbreak occurred in Hall County and over forty local doctors asked the governor to enforce a stay-home order, he refused.  His surprising metric for success was whether local hospitals were being overwhelmed, not a decline in the number of cases.  Ricketts has also made an issue of keeping meatpacking plants open, suggesting that there will be "civil unrest" if they are closed and a meat shortage ensues.  Inexplicably, although he insists that the packing houses are essential (and they are for farmers with hogs ready for market), he has done nothing to ensure by enforcement that packinghouse personnel stay home when not on the job, and not travel between packinghouses.  Meanwhile, it is no coincidence that Nebraska is witnessing the spread of Covid-19 from county to county and the state as a whole is now unable to bend the case curve downward.  Ricketts has also said his decisions are "best practices" as recommended by the University of Nebraska Medical Center. Really? Does UNMC oppose Hall County doctors' pleas for tougher measures?  Now Covid-19 has invaded the state's correctional system, dangerously overcrowded even in the best of times, which Ricketts has done little to relieve.  Moreover, Ricketts has refused even to recommend against the early re-opening of the Nebraska Crossing shopping mall between Omaha and Lincoln, whose owner is a large contributor to Ricketts' political campaigns.  Ricketts has even crossed the line into making false and misleading public statements that Nebraska has flattened the infection rate curve, when the opposite is actually the case and the situation is getting worse.*

It may be that despite the best efforts of any leaders, the coronavirus will continue to tear through populations with death and economic destruction.  Merkel and Hogan are nevertheless exemplary leaders in the struggle against it.  Ricketts is rapidly becoming a failure and I'm afraid Nebraskans are going to pay for it grievously.

* Nebraska's latest (4/28) Covid-19 reproduction rate (Rsub-t or R0) is 1.10, highest in the nation. Four of the top ten states in the country have no stay-home (shelter in place) orders, suggesting a causal relationship between the policy and the reproduction rate.  Maryland's rate is .88; Germany's is .79. 

Options to Avoid an Appalling Prediction

April, 2020

Washington – I wish my predictions four years ago had been wrong.

In September, 2016, nearly two months before the presidential election, I wrote the following predictions:

•  "...the Clinton campaign's strategy of relying excessively on demographics and identity politics will not win the 2016 presidential election."

•  "...Trump winning, assisted by free media exposure he has cleverly turned to his advantage."

•  "...a colossal crisis looming from day one of a Trump presidency as he throws government into turmoil...."

All came true, to my great regret.  Donald Trump was elected by the Electoral College, threw government operations into turmoil and now, unsurprisingly, a colossal crisis is upon us.*

In December, 2016, before the Electoral College voted, I wrote this about the electors; that is, whether

• "...they will be voting in accordance with Alexander Hamilton's explanation of their responsibilities in Federalist #68, which allows them considerable discretion. Specifically, that includes taking into consideration the qualifications of the candidates and whether the preceding general election may have been tainted by foreign involvement. In Hamilton's exact words, 'the desire in foreign powers to gain an improper ascendant in our councils'."

The 2016 electors did not heed Hamilton.  They chose, in Hamilton's words, an "improper ascendant" as president, and one who did not win the popular vote at that.  The new Senate Intelligence Committee's bipartisan report now confirms the "desire in foreign powers" that Hamilton anticipated, which several other investigations have also found.  Those conclusions, sadly, seem beyond dispute. 

The electors of 2016 should have waited until the influence of foreign powers was evaluated.   They could have done this by letting Congress decide who would become president and vice president under the Twelfth Amendment to the Constitution, which anticipates disputes within the Electoral College.   That amendment also anticipates disputes within the House, even to the point of having the vice president become president if the dispute is not resolved by March 4th of the year following the election.

It is time to think ahead as to what may happen in the upcoming election so as not to repeat the 2016 debacle, and to explore the options and scenarios that the Constitution itself contemplates.

1.  Could enough states join together in an interstate compact to cast their electoral votes for the national popular vote winner, thus resolving any differences between the popular and electoral college outcomes?  There is still time, but this seems unlikely unless the coronavirus pandemic imparts a new sense of urgency to have the country more united going into what could be years of quarantines and lockdowns.   Governors could call legislatures into session to act on the compact, but even if they joined other states – 73% of the necessary electoral college majority has already joined – would Congress and the president approve the compact?  That approval is arguably unnecessary, given that some interstate compacts do not require it, if the compact does not interfere with the "just sovereignty" of the national government under the Virginia v. Tennessee precedent. The compact effort may be worth it; it could also provoke the kind of dispute that would require the House to resolve the election under the Twelfth Amendment, potentially a better outcome.

2.  Could electors abstain in sufficient numbers to prevent the Electoral College from producing a winner, and thereby move the selection of the president or vice-president to the House or Senate, respectively?  There is precedent for this choice: in 1836, Virginia electors abstained from voting for Richard M. Johnson as vice president, throwing the selection to the Senate.  This is different from the usual "faithless" elector question, which does not address the abstention option.  Federal courts use the "abstention doctrine" frequently to find ways of resolving disputes in a federal system of government.  Recognizing elector abstention as a current constitutional option must be considered a possibility, especially because of its successful precedent.  The practical effect of elector abstention in the case of presidential selection would be to place the matter in the hands of House members elected in 2020, one vote per state. Currently Republicans hold a majority of states in the House, but that could change.

3.  Could the House delay any such selection until after March 4, 2021, so that the vice president would become president?  This must be considered a possibility in a situation where one party has a majority of the total votes, and can control the rules, but another party has a majority of votes in a one vote per state election.  There is also the problem of assembling a necessary quorum in the time of a pandemic.  Again, the Twelfth Amendment anticipates such disputes and provides a resolution: the vice president becomes president. 

4.  Could governors, exercising their police powers, determine which constitutional method is to be used in selecting the next president?  Ours is a government of dual sovereignty, with states having powers to protect the health and safety of their residents, often called the police powers.  The limits of these powers have seldom been explored, but in times of dire emergencies when tens or hundreds of thousands of lives are at stake, the powers must be interpreted broadly.  That would include how states deal with a president who has failed to work with them, if they see that his continued presence in office is a mortal danger to their residents.  No governor is obliged by the Constitution to enable death and suffering, when there are other choices.  The police powers conceivably could be used in conjunction with the constitutional authority states already have over elections to determine the selection process for the next president.  Although there is no exact precedent for it, governors could choose not to certify** their state's electoral votes, so as to deny any candidate an electoral college victory if the candidate did not win the national popular vote, or if there are so many election irregularities among the states that it is unclear who actually won.  That would include election outcomes that will have been influenced by foreign powers, against which Hamilton warned.  Doubtless, foreign powers are currently and unceasingly at work, sowing disruption into our 2020 elections. 

The above scenarios and options are all grounded in the Constitution, which anticipates election disputes and crises.  We as a nation are not helpless to resolve even the most difficult questions if we will only read our whole foundational document and understand the choices available to us in our system of dual sovereignty.  All of the above discussion is pragmatic, not ideological.

Although some of these scenarios seem unusual, they should be thoroughly explored at a time when the backdrop to the upcoming election portends untold levels of death and division, even violence and riots, unless the country chooses wise, competent, and unifying leadership in the coming election cycle. 

My regrettable prediction is that without a change in the presidency, the country will continue to collapse and we will see hundreds of thousands of needless deaths.   

* How much of the colossal crisis was unavoidable is a relevant question, but it can be answered by looking at other countries that faced the same pandemic but minimized death and disruption by good preparation and execution of pandemic plans.  The Trump administration's response has been characterized by allies in the international community as appallingly bad.

** 3 U.S. Code § 5.  Determination of controversy as to appointment of electors:

If any State shall have provided, by laws enacted prior to the day fixed for the appointment of the electors, for its final determination of any controversy or contest concerning the appointment of all or any of the electors of such State, by judicial or other methods or procedures, and such determination shall have been made at least six days before the time fixed for the meeting of the electors, such determination made pursuant to such law so existing on said day, and made at least six days prior to said time of meeting of the electors, shall be conclusive, and shall govern in the counting of the electoral votes as provided in the Constitution, and as hereinafter regulated, so far as the ascertainment of the electors appointed by such State is concerned.  (emphasis added)

Pandemic Era Federalism

April, 2020

Washington –  No sooner had I suggested that governors, frustrated with lack of leadership from the federal government, might make agreements with foreign powers to fight the coronavirus, than Governor Larry Hogan of Maryland did just that.   With the help of his wife, a native speaker of Korean, the governor negotiated with South Korea for such assistance.

He was concerned that his own U.S. federal government might intervene and confiscate the resulting shipment of testing supplies and protective equipment from Korea, but that did not happen.

This could be an important constitutional precedent:  the U.S. government did not challenge a governor acting under his police powers to protect the health and welfare of his citizens by entering directly into an agreement with a foreign power.

Others are writing on the topic of federalism and about how new assertions of state sovereignty may be in the offing, perhaps through interstate compacts and regional governments.  This development is apparent both before and after the onset of the era of coronavirus.

This is not going to let up.  It is not only governors who are frustrated with Washington's leadership failure; our international allies are likewise appalled and in disbelief.

What else might states start to take into their own hands?  There are limits to states' police powers, but in the era of coronavirus, with an inept administration in Washington, it seems those limits have a long way to go before being reached.  The political science community needs to step up to explore those limits and what pushing them may portend. 

Governors Must Take Charge in Desperate Times

April, 2020

Washington – If more Covid-19 testing is the sine qua non of saving tens of thousands of lives, and re-opening state and national economies, then measures commensurate with these urgent needs must be undertaken immediately.

It is clear that the president will not act quickly enough.  He continues to decline to use powers given go him under the Defense Production Act that would create and distribute testing supplies.

Could governors implement the provisions of the DPA if the president won't?   Yes.  the police powers of the states, affirmed by the Tenth Amendment, can be employed by individual governors to direct the actions of facilities that produce testing supplies in their respective states.  Acting together under a constitutionally recognized Interstate Compact, governors could coordinate their actions.

The Defense Production Act itself (see the DPA here) could be the model for a new, free-standing Interstate Compact on viral disease testing, amended as necessary to recognize states' police power authority.

Who would pay?  The states clearly are not in a position to do so, but the Federal Reserve could finance the costs by purchasing state-created obligations through the FOMC, as is done for mortgage-backed securities, or through other means such as is done to facilitate municipal credit.  The Federal Reserve does not need the approval of Congress or the president to do this.

Quest Diagnostics is headquartered in New Jersey and could be directed by the governor of New Jersey.  Qiagen's regional headquarters is in Maryland and could be directed by the governor of Maryland, who also happens to be the chairman of the National Governors Association, which could coordinate an interstate effort.  Other test-producing facilities are scattered throughout the country in states with governors who could act decisively to save lives and to save their economies. 

Inasmuch as we are in dire circumstances, states could also, individually or collectively, start to look to other nations for help. Some nations have ramped up testing and are well ahead of the U.S. in knowing how to get the job done. The Netherlands and Germany are prime possibilities. Germany, led by a scientist as chancellor, has a national testing regime in place with adequate supply chains. Qiagen is actually a Dutch company. Many of its facilities in Maryland are just minutes away from NIH. The Constitution (Article I, Section 10) recognizes that individual states may need to enter into agreements with foreign powers if they are in "such imminent Danger as will not admit of delay." A dithering president, fomenting domestic insurrection against states, has doubtless created just such a situation.

We are in the midst of a national catastrophe.  Extraordinary times require extraordinary measures.  Our Constitution recognizes that; our state leaders must act accordingly.

Creation of More Interstate Compacts Is Overdue

April, 2020

Washington –  The time for states to join together in more interstate compacts, to fight the coronavirus and to preserve our constitutional form of government, is overdue.

I discussed interstate compacts in a post two months ago, along with other options states have to exercise their constitutional sovereignty in times of challenge and crisis.  Had the appropriate compacts been in place, states could have avoided competing against each other for supplies to fight Covid-19.

In the earlier post, I suggested that states do not need the approval of Congress in many situations where compacts are extensions of their police powers and do not conflict with the powers of the national government.

A similar view is expressed in an op-ed appearing today in the Washington Post.  The leading case on interstate compacts is Virginia v. Tennessee.

The National Governors Association is the organization that could best facilitate new interstate compacts.  Some two hundred compacts already exist.  They could fill the leadership vacuum that currently exists in the presidency, so as to coordinate national Covid-19 testing and re-open the economy safely. 

There is no time like the present to create more compacts, both to fight pandemics and to ensure that our constitutional system of government is preserved beyond today's national emergency.

The Exciting Prospects of Food for Health

April, 2020

Lincoln –  A remarkable new effort is underway at the University of Nebraska's Innovation Campus, called "Food for Health."  From its own description:

Our research focuses on microbes living in the human gut microbiome.

Trillions of microbes – bacteria, viruses, fungi and more – live in the human gut microbiome, which normally acts in concert with the body to regulate organs, develop our immune systems, fight disease and metabolize foods. Abnormalities in the gut microbiome are being discovered as factors in many diseases.

Diet is one of the biggest factors that influences humans' gut microbiomes.

Because microbiomes are fed by the same foods that we consume, we can develop foods with health-promoting ingredients that work by selectively feeding beneficial microbes or prohibiting growth of more harmful species. This new interface between agriculture and medicine holds tremendous potential to transform how we think about preventing and treating disease.

This is exactly the kind of research that makes me proud to be a Nebraska taxpayer supporting my land-grant university's initiative.  Food for Health is a venture that also involves UNMC and UNO and should soon attract major federal research funding support.  

Skeptics might ask what's the big deal, haven't our universities always been doing such research?  

No.  Strange as it may seem, there has been little previous research on the connection between agriculture and medicine.  Medical research has focused on developing pharmaceuticals to cure diseases, with far less attention to disease prevention through improved nutrition.  Agricultural research for decades has focused on "production agriculture," caring more about yields than researching the specific beneficial values of the foods produced.  

Moreover, the Innovation Campus itself got off to an inauspicious start.  Some of its first attempts at innovation involved big livestock feedlots and collaborations with processed food companies.  This came at a time of increasing evidence that processed foods were a significant cause of the world's growing obesity and diabetes epidemics.

The Nebraska Food for Health Center is turning that around and making the Innovation Campus potentially a focal point for the entire world in health care advances.  Understanding microbiomes is true innovation, worthy of the name. 

The current coronavirus pandemic draws further attention to the importance of nutrition in health care.  Those with underlying diseases are most susceptible to Covid-19.  While it is critical that a vaccine be developed against the virus, it is likewise essential to shore up the underlying health of people who will face it.

There is no better place than Nebraska to link agriculture to medicine, through nutrition.  The University of Nebraska was once home to the nation's leading nutritionist of her time, Professor Ruth Leverton.  The Nebraska Food for Health Center is following in a proud tradition.  

American Government Is Facing a Huge Test

April, 2020

Washington – In a post two months ago, with the coronavirus pandemic not yet in our national consciousness, I wrote this about the current state of American government:

The states of the Northeast and West Coast in particular may look at asserting what remaining sovereignty they have left to fend off a national government led by an increasingly autocratic president unconstrained by traditional checks and balances.  Areas of likely conflict: environmental protection and climate change, judicial process, consumer protection, immigration, and health and education.

Little did I know that it would be the health issue that would create the predicted fracture and shake the very foundations of our federal system, in which states and the national government share sovereign powers under a single constitution.

Today, the New York Times reported this:

Two groups of governors, one on the East Coast and one on the West Coast, announced Monday that they were forming regional working groups to help plan when it would be safe to begin to ease coronavirus-related restrictions to reopen their economies.

Their announcements came hours after President Trump, who has expressed impatience to reopen the economy, wrote on Twitter that such a decision lies with the president, not the states.

A showdown is in the offing over states' constitutional police powers to protect the health and welfare of their citizens.  The question might go to the Supreme Court, quickly.  The Court's conservative faction will be torn, in one direction, over their increasingly obvious political loyalty to Donald Trump and, in the opposite direction, over the principles of federalism, which embody state sovereignty, as espoused by the powerful interest group that secured most of their appointments, The Federalist Society.

My reading of The Federalist Society is that it has become more political than principled, so look for the Court to try to side with Donald Trump.  During his presidency, the Court's decisions have become more and more contrived to fit desired political outcomes.

The Court must watch out, however, against granting Donald Trump authority over elections, which are constitutionally the province of the states.  This is the slipperiest of slopes.  Will the dispute over the coronavirus bring about the end of our federal system in favor of essentially a unitary form of government, and an authoritarian one at that?

Patterns in Responding to Coronavirus

April, 2020

Washington – Countries with the best responses to the coronavirus, so far, are Taiwan, New Zealand, Denmark, Norway, Germany, Finland, and South Korea.  Their leaders are, respectively, Tsai Ing-wen, Jacinda Ardern, Mette Fredericksen, Erna Solberg, Angela Merkel, Sanna Marin, and Moon Jae-in.

Is there a pattern here?  Yes.  These countries are led by women, with the exception of South Korea (which "proves the rule").

But there is another explanation.  These leaders achieved their positions by demonstrating competence to govern; they worked their way to the top.  That is the way women are now becoming leaders, so it is no surprise that the countries with the best responses to the pandemic are led by women.

As I suggested in an earlier post, the countries with the worst coronavirus records have selected their leaders not on the basis of competence, but on their "govertainment" value.  That includes Italy, until recently under Berlusconi, America under Trump, and China under Xi Jinpeng, whose staged adulation is the admitted envy of the American president.  Xi, with his massive rallies, is the authoritarian version of a govertainer.

As the 2020 campaign unfolds, will Americans, paying dearly for their lesson about the value of competence, start to look differently about what must be expected and demanded from our leaders?  Surely we will, especially if we open our eyes to the experiences of other nations. 


Fair, Targeted Relief in the Fourth Coronavirus Bill

April, 2020

Washington – Congress will soon consider its fourth major response to the coronavirus pandemic.  This one may include infrastructure spending, which is not only appropriate but long overdue.

Congress must also help the economy by helping millions in financial trouble because of burdens imposed on them by the cost of higher education.  This was true before the Covid-19 epidemic and is even more obvious now.

When this subject has come up before, it has been described as student-loan debt relief.  As such, it does not have the votes to pass, regardless of its considerable merit.  There is also lack of unanimity among its advocates as to the form it should take. 

The effort should be re-cast by looking at the obstacles that relief faces and adjusting accordingly.

A leading opponent is Senator John Cornyn of Texas, who explained his opposition in these words,

To say we're going to wipe away the debt is not fair to the parents who started to save for their kids' college even before they started walking or the college student who worked multiple jobs to graduate to work with little or no debt at all.  Or decided to go to a community college at lower cost before they transferred to a four-year institution and found a way to mitigate or keep their debt manageable.  

In earlier posts, I suggested that relief in the form of a refundable, means-tested Tuition Premium Tax Credit would largely address these objections.  Basing relief not on amount borrowed but on the higher tuition premium faced by 21st century postsecondary students could provide bipartisan common ground sufficient to include relief in the next coronavirus bill.

Members of both parties understand that higher tuition is a disease of which higher debt is one symptom.  Congress itself bears some responsibility for higher tuition, because of the increasingly obvious shortcomings of its programs under the Higher Education Act (HEA), so it is especially appropriate that Congress should act.

I would add another factor to the relief, a multiplier (125%, for example) for those on the front lines fighting Covid-19 in health care, food distribution, and the military, including veterans (who have been particularly ill-served by the HEA). 

This relief, with the multiplier, would be effective not only in getting refund checks fairly into the hands of those who most need it, but would also send a strong signal of support to those who are heroically fighting the pandemic. 

The Disastrous Age of Govertainment

April, 2020

Washington – Historians sometimes write of "eras" or "ages."  It is time to think about an "age of govertainment," defined as a period when entertainers and their industry fundamentally took over governance functions.  And not for the better, to be sure.

The age's apotheosis may be Donald Trump, an entertainer with no previous government experience, but he was not the first.  Entertainers Jesse Ventura and Arnold Schwarzenegger preceded the president as governors in their respective states.

The age is also marked by the treatment of public policy as entertainment, especially on cable television and AM radio.

A progenitor of the entertainer-as-elected-official was Ronald Reagan.  Although he was governor of California before he became president, it was his acting and story-telling that attracted voters, not his record in office.

He regaled audiences with an anti-government message:  "The nine most terrifying words in the English language are 'I'm from the government, and I'm here to help'."   It set off decades of joking about government.  Rather than fixing government's shortcomings, and demanding better, it became fashionable to cut government support so as to make certain it failed.

It worked. One agency, the Internal Revenue Service, has even programed failure into its operations by acknowledging it is not able to audit the wealthy, so it concentrates on the lower-income.

No one expressed the anti-government sentiment better than the Washington lobbyist Grover Norquist, who said, "My goal is to cut get it down to the size where we can drown it in the bathtub."

A generation of the nation's best talent turned away from public service to make money on Wall Street, where Ph.D. scientists invented financial derivatives rather than work in essential government research, development, readiness, and logistics.

Nobody's laughing now, what with govertainment leaders unable to cope with a coronavirus pandemic.  It's not as if we didn't know it was coming: everyone from businessman Bill Gates to national security director Dan Coats has been sounding the alarm.  Now it's here.  At first we're in denial about the pandemic, then in panic over our lack of preparedness. 

A lot of us have never, ever been laughing at the failures of government.  I've been in the trenches fighting government waste, fraud, incompetence, and corruption for many years, mindful that as much as I like limited government, it must be up to the job as if our lives depended on it, which sometimes they do.

When the pandemic passes, those who are left to pick up the pieces must bring to an end the disastrous "age of govertainment" in America.*  Surely we are a better country than we've been of late.
*Other countries have likewise experienced govertainment eras.  Italy, in the recent past, was led by Silvio Berlusconi, a media tycoon who had no government experience before becoming premier.  Like the U.S., Italy was unprepared for the pandemic.  Countries with more traditional leaders, like South Korea, Taiwan, and Germany, have been better prepared and have held down the pandemic death rate. Which suggests an emerging hypothesis: govertainment regimes have worse pandemics.  The evidence is mounting daily.