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March 18, 2020

Presidential Powers and Response to COVID-19

Author Affiliations
  • 1O’Neill Institute for National and Global Health Law, Georgetown University Law Center, Washington, DC
  • 2Sandra Day O’Connor College of Law, Arizona State University, Phoenix
  • 3Washington College of Law, American University, Washington, DC
JAMA. 2020;323(16):1547-1548. doi:10.1001/jama.2020.4335

The Centers for Disease Control and Prevention (CDC) modeling suggests that, without mitigation, severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2), the virus that causes novel coronavirus disease 2019 (COVID-19), could infect more than 60% of the US population.1 President Trump has declared a national emergency along with 50 governors declaring state emergencies (Figure), which are unprecedented actions. Social distancing aims to flatten the epidemic curve to moderate demand on the health system. Consequently, whether through voluntary actions or state mandates, individuals are increasingly sheltering at home, schools and universities are closing, businesses are altering operations, and mass gatherings are being canceled. On March 16, the health officers of 6 local governments in the San Francisco Bay Area issued mandatory orders to shelter in place, making it a misdemeanor offense to leave home for any nonessential purpose.

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    2 Comments for this article
    Can We Expedite Treatment?
    Gary Ordog, MD, DABMT, DABEM | County of Los Angeles, Physician Specialist, Retired
    The authors discuss human rights pertaining to avoiding infection during the next 18 months. We are supposed to wait while a vaccine is tested for dosing schedule. "Flattening the curve" may only prolong the inevitable infection with the virus. What are our rights to preventative and curing treatments? The most vulnerable of our population currently appear to be older and medically compromised individuals. Also, the most severely ill will require ventilators, ICU beds and critical care staff, and all are currently utilized to capacity, resulting in an increasing number of newsworthy disasters already. I suggest that prophylaxis and treatment should be made available, as a medical right, in this time of impending catastrophe. Treatments that have not had time to advance to final approval may be beneficial for saving life or limb, with those patients on the exponential end of " the curve" probably glad to sign a 'waiver of liability.'

    As far as prophylaxis and treatment, I refer first to the vaccines that are being tested correctly and for dosage. With a century of vaccine research, I think they have a pretty good estimate of the required dose. Can we not ramp up production and start giving it to the most vulnerable, at least? Secondly, there are currently thousands of patients who have recovered from COVID-19, can these not be a source of gamma globulin for the more serious ill, at least? Stem cell lines are another possible therqpy. Thirdly, there are various antiviral drugs which are safe and possibly effective but obviously have not had the time to be tested. For example, remdesivir appears to be effective against other Corona viruses, probably would have some effect against Covid-19. Could we not ramp up production of these agents and allow our vulnerable patients to have access to them, when otherwise it looks like high mortality and morbidity, with our only treatment available being "social distancing?"

    Thank you for allowing me to make these comments.
    With Great Power Comes Great Responsibility: Presidential Power and COVID-19
    Michael McAleer, PhD (Econometrics),Queen's | Asia University, Taiwan
    "With Great Power Comes Great Responsibility" has variously been attributed to Voltaire, Winston Churchill, Peter Parker's uncle in Spider-Man, and previous US Presidents, including Theodore Roosevelt and Franklin D. Roosevelt, among others.

    The excellent and informative paper presents a lucid description of the balance that is required between individual rights and liberty, and public health concerns, in protecting nation's citizens and residents.

    Presidential powers include those that are stated and granted explicitly by Article II of the United States Constitution.

    'Wartime President' Donald Trump has declared a national emergency, and State Governors have declared state emergencies.
    /> To many in the worldwide community, it is alarming that State Governors have had to take the lead in fast and direct action in the fight against the 'invisible enemy', the SARS-CoV-2 virus that causes the COVID-19 disease, as distinct from the slower responses of the Federal Government, especially the White House.

    Blaming anyone for the pandemic is pointless and self-defeating at a time of national and international crisis.

    Citizens and residents are known to come together and work for the common good when called upon to do so, especially in times of crisis.

    Among the front liners and first responders are the medical and healthcare workers who are risking their health and lives in upholding their vocation and oath to help the sick, infirm, patients with chronic disease and in greatest need, the aged, and the socially and economically disadvantaged.

    It is now widely accepted that self-isolation, quarantining, social distancing, and international travel restrictions are essential to curb the spread of the disease.

    The topics covered in the insightful paper include adherence to 6 key principles, which seem consistent with federal and state laws during normal times.

    However, in times of crisis such as the current pandemic, speed is of the essence.

    Banning 'large' gatherings of more than 2 persons in public, excluding family members, and extending the time frame beyond 2 weeks, as well as imposing domestic travel restrictions, should be imposed at the federal and state levels.

    Such actions would require the President to use the 'soft' powers associated with federal leadership in working with the State Governors.

    After all, what is the point in having great presidential power if it is not exercised when the country needs it most?