The Wall Street Journal - 20.03.2020

THE WALL STREET JOURNAL. Friday, March 20, 2020 |A

A

merica’s “arsenal of de-
mocracy” saved Europe
and the world from fascism
during World War II. Today
the U.S. can win a similar
victory over the novel coronavirus by
sticking to the same principles that
made the war effort so successful.
President Trump took a vital step in
that direction Wednesday by invok-
ing the Defense Production Act,
which gives him the authority to ex-
pedite and expand industrial produc-
tion of key medical resources neces-
sary to fight the pandemic.

America’s productivity in World
War II wasn’t the result of bureau-
crats in Washington exercising com-
mand and control over the U.S. econ-
omy, as some seem to think the
Covid-19 pandemic requires. On the
contrary, the federal government har-
nessed the energy and innovation of
America’s finest companies to pro-
duce what government could not: ma-
terials and supplies in sufficient quan-
tities to prevail in two theaters of war
on opposite sides of the globe.
By May 1940, President Franklin D.
Roosevelt realized the tide of fascism
and Nazism would overwhelm the
forces of freedom unless the U.S.
helped to rescue the world’s democ-
racies, starting with beleaguered

TakeapagefromFDR’s

‘arsenal of democracy’

and mobilize industry

to fight Covid-19.

A Constitutional Guide to Emergency Powers

T

he Covid-19 pandemic has led
to extraordinary restraints on
liberty, from international
travel bans to state and local orders
that businesses shut down, individu-
als avoid large assemblies and even
stay home, and infected patients re-
main in quarantine. Depending on the
epidemic’s progress, even more-dra-
conian measures may be needed,
such as restrictions on interstate and
intrastate travel. It’s possible that
“social distancing” will last for
months rather than weeks.
All this goes against the grain in
America, whose people treasure free-
dom and constitutional rights. But
the government has ample constitu-
tional and legal authority to impose
such emergency steps.
Some state officials, such as New
York Gov. Andrew Cuomo, have urged
the White House to take charge. But
this isn’t a task for Washington alone.
While the federal government has
limited and enumerated constitu-
tional authority, states possess a ple-
nary “police power” and have pri-
mary responsibility for protecting
public health.
States may also take more drastic
measures, such as requiring citizens
to be tested or vaccinated, even

against their will. InJacobson v.

Massachusetts(1905), the Supreme

Court considered a challenge to a

state law requiring everyone to be

vaccinated against smallpox. Henning

Jacobson refused vaccination and

was convicted. The court upheld the

law and Jacobson’s conviction.

“The Constitution,” Justice John

Marshall Harlan wrote for a 7-2 ma-

jority, “does not import an absolute

right in each person to be, at all

times and in all circumstances,

wholly freed from restraint.” Instead,

“a community has the right to pro-

tect itself against an epidemic.” Its

members “may at times, under the

pressure of great dangers, be sub-

jected to such restraint, to be en-

forced by reasonable regulations, as

the safety of the general public may

demand.”

States also have the power, beyond

criminal law enforcement, to make

quarantine and isolation effective. If

presented with widespread noncom-

pliance, governors may call National

Guard units to put their orders into

force, to safeguard state property and

infrastructure, and to maintain the

peace. In some states, individuals

who violate emergency orders can be

detained without charge and held in

isolation.

Federal leadership is crucial.

Washington has wider access to data

about the virus, its migration and

trends. It is prudent for states to fol-

low federal guidance on matters like

quarantine and travel restrictions.

But because Washington lacks states’

police power, compulsion is not al-

ways an option. The Constitution for-

bids federal officials from coercing

the states or commandeering state

resources or civilian personnel. While

Washington may withhold some fed-

eral funds from states that refuse to

follow federal law, it may do so only

in ways that are tailored to advance

the federal interests at stake and

don’t amount to a “gun to the head,”

as Chief Justice John Roberts put it

in the 2012 ObamaCare case.

The federal government has the

authority to order regional or nation-

wide containment and quarantine

measures. The Public Health Service

Act enables the surgeon general, with

the approval of the secretary of

health and human services, “to make

and enforce such regulations as...

are necessary to prevent the intro-

duction, transmission, or spread of

communicable diseases.” President

Trump listed the Covid-19 virus for

this purpose in January. The act au-

thorizes the federal government to

apprehend, detain and conditionally

release individuals to prevent the

spread of infection, and to detain

anyone who enters from a foreign

country or who would spread the dis-

ease across state borders.

The act can be read to allow for

the general quarantine of all people

from a particular state or states, in-

cluding those who are asymptomatic

or even have tested negative. But an

attempt to do so would certainly re-

sult in litigation. Congress should

promptly enact a statute that would

affirm federal authority to impose a

general quarantine if necessary.

To enforce such measures, the

president can deploy civilian and mil-

itary resources. He could federalize

the National Guard over the gover-

nor’s objection. The Constitution al-

lows Congress to authorize the use of

the militia as well as regular armed

forces for a variety of purposes, in-

cluding suppression of insurrections,

defense against invasions, and execu-

tion of laws.

Congress has placed significant

constraints on the domestic use of

the U.S. military. The Posse Comita-

tus Act of 1878 generally prohibits

the use of U.S. armed forces for “per-

forming domestic law enforcement

activities” and features criminal pen-

alties for noncompliance. But law-

makers have enacted important ex-

ceptions that allow the use, in certain

specified circumstances, of the mili-

tary to enforce federal laws. One is

the Insurrection Act, originally dat-

ing to 1807, which allows the presi-

dent to use the military when dealing

with domestic rebellions. Widespread

noncompliance with federal quaran-

tines and travel bans promulgated

under the Public Health Service Act

may qualify as an insurrection.

Containing the Covid-19 epidemic

will require citizens, states, private

companies and the federal govern-

ment to work together. One may hope

the steps that have been taken so far

will suffice. But emphasizing the

sound constitutional and legal basis

of these measures is important in re-

assuring the public that government

can do what is necessary to secure

the general welfare.

Mr. Rivkin is a constitutional law-

yer who has served in the Justice and

Energy Departments and the White

House Counsel’s Office in the Reagan

and George H.W. Bush administra-

tions. Mr. Stimson is a senior legal

fellow at the Heritage Foundation.

By David B. Rivkin Jr.
And Charles Stimson

Federal leadership is

crucial, but there are

measures only states have

the authority to take.

Make America the Medicine Chest of the World

Britain. Many in his administration

believed then, as many Americans be-

lieve now, that the only way to deal

with an extreme crisis was to adopt

the same measures authoritarian

governments were using to build

their war machines—even to the

point of nationalizing key industries

like steel and automobiles.

But FDR understood that a war-

time buildup wouldn’t succeed unless

it harnessed America’s private re-

sources and design expertise. He

turned to the productive power of

capitalism to arm the world against

the fascist threat, leaving the federal

government with the job of coordi-

nating and overseeing the private

companies best suited to accomplish

the mission, and making sure re-

sources went where private industry

needed them. American factories pro-

duced a third of all war material used

by the Allies in World War II, and

they did it by applying a simple prin-

ciple: Let the federal government

point the way, and let private indus-

try do the rest.

By invoking the Defense Produc-

tion Act, the administration can clear

away bureaucratic impediments to an

effective pandemic response. Just as

FDR’s administration temporarily set

aside antitrust standards so compa-

nies could band together to produce

everything from aircraft parts to

tanks and synthetic fuels, the Trump

administration can encourage compa-

nies to pool their patents and intellec-

tual property to increase production

of key drugs and technologies.

Bringing together companies like

Walgreens, Walmart and Google to

streamline the Covid-19 testing pro-

cess was a good first step toward

making America safer and more se-

cure against the growing pandemic.

But there is much more the U.S. can

do to mobilize its health-industrial

and manufacturing base. It’s absurd

that Italy must rely on China for

emergency supplies of ventilators

when America is home to major venti-

lator manufacturers like Vyaire,

ResMed and Allied Healthcare Prod-

ucts. The Trump administration

should work out a timeline with these

medical-device makers to produce all

the ventilators the world needs right

here in the U.S. The same is true for

respirators, swabs and other types of

protective gear crucial to preventing

a global health-care catastrophe.

Washington should also clear the

way for the American pharmaceutical

industry to develop and deploy thera-

pies for Covid-19 until antiviral

drugs, and ultimately a vaccine, are

in place. Regeneron Pharmaceuticals

of Tarrytown, N.Y., which developed

a drug last year to combat Ebola, an-

nounced Tuesday it has made prog-

ress in the hunt for a Covid-19 treat-

ment. Swift action by the Food and

Drug Administration has already

streamlined the approval process so

that what might normally take two to

three years will now happen in a mat-

ter of weeks.

The government’s first missions

must be to keep Americans safe and

to secure the U.S. economy as the

mainspring of the global order. A

Washington-led mobilization of the

health-industrial and manufacturing

base can also boost economic growth,

just as the mobilization of the de-

fense-industrial base did during

World War II. “We won because we

smothered the enemy in an avalanche

of production, the like of which he had

never seen, nor dreamed possible,”

said Lt. Gen. William “Big Bill” Knud-

sen of the American war effort. Knud-

sen had been president of General

Motors before Roosevelt asked him to

direct the War Department’s produc-

tion and procurement efforts.

A similar spirit of cooperation and

determination will be necessary to

defeat the novel coronavirus. All we

have to do is strike the right balance

between what the private sector can

and must do, and what the federal

government shouldn’t and can’t do.

Mr. Herman is a senior fellow at

the Hudson Institute and author of

“Freedom’s Forge: How American

Business Produced Victory in World

War II” (2012) and the forthcoming

“The Viking Heart: How Scandina-

vians Conquered the World and

Transformed the American Dream.”

By Arthur Herman

PHOTOQUEST/GETTY IMAGES

A Pratt & Whitney engine at the Vought-Sikorsky aircraft factory, March 1943.

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Coronavirus Has Me Sweating Out My Sports Addiction

‘F

or in truth,” Balzac writes
in his novel “Cousin Pons,”
“to adopt a mania is like ap-
plying a poultice to one’s soul; it can
cure any taedium vitae, any spleen.”
No dope, Balzac, at least judging by
my own mania for watching sports
on television. Watching sports has,
if not cured, at least relieved the te-
dium of everyday life for me. Having
a game to look forward to lifts the
spirits. Watching the game takes
one’s mind off the glitches, irrita-
tions and setbacks that life supplies,
even among the most fortunate of
us, with relentless regularity.
Thanks to the blasted coronavi-
rus, I have gone more than a week
without sports. As all fans know, the
NCAA basketball tournament has

been canceled; the National Basket-

ball Association season is in an ex-

tended, possibly permanent, time

out; and, most grievous for me, the

opening of the Major League Base-

ball season has been brushed back.

A friend, also afflicted by the ab-

sence of sports from his daily enter-

tainment menu, reports that all he

could find on television the other

day was bowling and the rodeo. Per-

haps in this time of sports scarcity

some clever promoter will create the

sport of bowling on horseback.

There have been times in my life

when I have had to do without

sports. One was the early 1960s,

when my life was crowded with

young children and work, and pro-

pelled by ambition. I missed out on

the career of the greatest of modern

pitchers, Sandy Koufax, the youngest

player (at 36) to be elected to the

Baseball Hall of Fame and one of

whose sobriquets was “The Left Arm

of God.” Yet so full was my life dur-

ing those years that I don’t recall

feeling that missing out on sports

was a deprivation.

Why, then, do I feel it now? Per-

haps because for some years sports

have set the calendar of my year and

become part of the rhythm of my

days. Autumn and early winter have

meant professional and college foot-

ball. Late autumn and winter meant

professional and college basketball

and hockey, while awaiting that

grand call, “Pitchers and catchers

report!” announcing the start of

baseball’s spring training.

I was looking forward to baseball

more than usual this year because

both the Cubs and the White Sox

look to be serious contenders. In

Chicago, one isn’t supposed to root

for both teams, but I do. I suppose

in my native city that makes me the

baseball equivalent of a bisexual.

And for the sports addict in Chicago

it has been a long, hard winter: The

Bears had a wretched season; the

Bulls haven’t even achieved wretch-

edness. The Blackhawks have a ros-

ter filled with talented players, but

never played up to their potential. I

was counting on baseball to make it

all well. Not, at least as things stand

at the moment, going to happen.

Now a confession. I have been

losing interest in the two sports I

was most passionate about as a

boy: basketball and tennis. In bas-

ketball, apart from a mild interest

in certain players—Stephen Curry,

Zion Williamson—I have lost inter-

est and find I can no longer sit

through an entire college or profes-

sional game. Now that Roger

Federer is likely to retire, I will

soon have no one to cheer for in

men’s tennis. I cheer for Coco Gauff,

less impressed with her game than

with her astonishing poise playing

so well before enormous television

audiences at 16 years old. I continue

to watch football, but with a nag-

ging sense of guilt, knowing the se-

rious consequences of chronic trau-

matic encephalopathy likely to

befall many who play. I may require

the services of a good sports thera-

pist to recharge my passion for

these contests.

Is it possible that the coronavi-

rus, if it delays baseball season fur-

ther, may provide the coup de grâce

to my slackening devotion to sports?

Perhaps I am too far along in life to

spend what time I have left watch-

ing men play games originally meant

for children. Surely all that time

spent watching sports would be bet-

ter spent reading great literature or

thinking about the life I’ve led and

what lies ahead. Good Lord, might

the day come when I thank the coro-

navirus for bringing me to my

senses and breaking my addiction to

watching sports?

Mr. Epstein is author, most re-

cently, of “Charm: The Elusive

Enchantment.”

By Joseph Epstein

Would the time I usually

spend watching baseball be

better devoted to literature

or simple reflection?

Matt Ridley writing in the March

21 issue of the U.K.’s Spectator:

The number of cases outside

China has increased tenfold roughly

every ten days. If it continues at this

rate, in two months the virus will

have infected 100 million people. A

vast experiment is happening as dif-

ferent countries try different strate-

gies, with some in Asia having nota-

bly more success than others in

Europe. But to stop the virus gain-

ing a permanent foothold in the hu-

man population will require every

single one of those experiments to

work.

In the long run, we will get

through this. Effective drugs will be

found. Methods for keeping the very

sick from dying will improve. The

milder forms of the virus will proba-

bly out-compete the harsher ver-

sions. A vaccine may yet work—

though it has come as quite a shock

to find out just how little vaccine de-

velopment has improved in recent

decades....

We must not despair or return

permanently to autarky and local-

ism. With the right precautions, an

open, free-trading, free-moving, in-

novating world is possible without

pandemics and is essential for rais-

ing living standards. Government

must both splash the cash and slash

many of the things it does that are

not urgent to alleviate human suffer-

ing, and there are a lot of them. But

in the midst of our misery let us be

thankful for one thing: unlike many

plagues, this one spares children.

Notable &Quotable: Ridley