White House Task Forces Challenge Separation of Powers

President Donald Trump, joined by members of the White House Coronavirus Task Force, listens to a reporter’s question at a coronavirus briefing at the White House, March 22, 2020. (Tia Dufour/White House)

Mingling legislative and executive functions is exactly what the Constitution is meant to prevent.

I  hate to be a stick in the mud during a rare outbreak of mellifluous bipartisan, interbranch cooperation. But the White House task force on reopening the economy — a seeming cast of thousands drawn from inside and outside government, much heralded by the president but still somewhat amorphous — is a curious affair. It may be too early to say for sure, but it certainly seems like the sort of thing the Constitution frowns on, and for good reason.

Michael Brendan Dougherty has an interesting piece about the task force yesterday. Its responsibilities are sufficiently elastic that our MBD plausibly suggested something of a crisscross: The economists and business leaders thus far tapped for the new task force would be reassigned to the existing task force on public health (i.e., the White House Coronavirus Task Force, led by Vice President Pence); simultaneously, the public-health officials on the latter would be reassigned to the former. The idea is that the expertise each brings to the table would shore up the respective weaknesses of the other — the business guys might do more reliable projections of medical outcomes, while the docs might advise the CEOs on how to operate their companies safely.

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Meantime, Zachary Evans reported that the White House had recruited Senator Josh Hawley (R., Mo.) to participate in the reopening task force. Hawley has informed ideas about subsidizing American workers — although they sure sound like they’re fit for legislative action more than an executive task force. At any rate, in addition to Trump-administration officials and the afore-described expert advisers from outside the government, Senator Hawley joins what reportedly is a bipartisan group of senators and House members.

It is this conglomeration that I want to home in on.

I am all for government officials’ getting the best advice while making policy in a time of crisis. There is nothing wrong with all these people consulting each other, and if a presidential task force is just an informal vehicle for facilitating that process, I suppose that’s fine.

Still, our system is based on separation of powers. We do not have a parliamentary arrangement in which executive and legislative functions are liberally intermingled. Still less do we have a system in which private actors are advantaged over their peers by serving in the government that regulates their industries. The Constitution makes the separation of executive and legislative authority explicit in Article I, Section 6, Clause 2, forbidding legislators from serving as executive officials (“No Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office”).

Again, behind-the-scenes consultations go on all the time. Presidents prudently speak to legislative leaders to get a sense of what Congress is willing to authorize. The executive and legislative branches speak with outside experts to test the pros and cons of existing or prospective policy.

In the end, though, the executive and the legislature are separate branches that are supposed to check each other. This is not just a formalistic technicality; it is a substantive safeguard of liberty. It’s an incentive for them to do their jobs well, to know that someone is going to be checking their work. And there should always be a bright line between government officials and private actors. We don’t want the latter, in effect, exercising (or at least heavily influencing) government action, while the former picks winners and losers in the private sector.

The Trump administration has been less than sensitive to these boundaries. To take the most obvious example, Mark Meadows was still serving as a member of Congress (and a top Trump ally there) when he began performing the duties of White House chief-of-staff, the position he now holds. This was a temporary arrangement, and I’m sure the president would say it made then-Representative Meadows especially valuable to the negotiations over the CARES Act — though the jury is very much still out on how well that legislation addressed the current crisis.

The constitutional structure of government is not passé. At least conservatives did not seem to think it was earlier this week, when they revolted against the president’s claim that he had “total” authority on the matter of when and how the economy will reopen. Instantly, there were Republican disquisitions on federalism — even far-left Democrats seemed smitten with the Tenth Amendment (a posture that just may have been a tad political). And self-proclaimed constitutionalists were none too pleased in 2009, when President Obama rolled out his concept of administration by czar. Many of us saw it as an end-run around the Senate’s advice-and-consent power (Article II, Section 2), as a way to repose power in radical thinkers who stood no chance of being confirmed.

There is so much partisan infighting in Washington, it is refreshing to see that at least some officials and public-spirited private citizens can still come together for the sake of the country in a time of crisis. The government must work cooperatively if it is to work effectively against the coronavirus. Still, our system provides for cooperation with the important qualification that each political branch must maintain its institutional independence. It must police the other branch’s use of governmental power, not join in it. And the ultimate check on our democratically accountable government is the demos, just as the government must evenhandedly regulate the public to which it answers. There needs to be separation between the public and private sectors — a person should not be permitted to wear both hats at the same time.

The Framers were wise to arrange things this way. It is a mistake to encourage committees that undermine such arrangements.

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