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Trump’s ‘Big Lie’ About State Legal Responsibilities During a Pandemic Should Be a Huge Scandal

The novel coronavirus should perhaps be known for killing off the presumption that we are a nation of laws, not a nation of the whims of people. In the virus’s wake, America has proven that the “Big Lie” theory works. President Donald Trump is applying — let’s hope unintentionally — this very same theory by repeatedly and increasingly saying state governments have failed to meet their supposed burden of stockpiling medical supplies.

The law is clear, despite what Trump says. Under a federal statute passed with bipartisan support after the 9/11 terrorist attacks, it is the job of a president’s administration to maintain a stockpile of medical supplies “appropriate and practicable … to provide for and optimize the emergency health security of the United States.” (The original text of the law said it was the job of the administration “to provide for the emergency health security of the United States.”  The language requiring optimization was added because of COVID-19.)  The law, 42 U.S.C. § 247d–6b, indicates very, very clearly that state and local governments can request materials from the national stockpile in a “public health emergency.” While it is true that the federal law allows the president’s administration to “take[] into account other available sources” of medical supplies, the core commandment — that the administration “shall maintain” the supplies — requires “numbers, types, and amounts” of total supplies which are sufficient to provide for all. That means the federal government is supposed to know what other supplies exist. If there are no other sources of supplies, the federal government has to provide for everyone.

This is a clear area of federal authority, and it is why states have left it to the federal government to muster a response to a pandemic.  Under the Constitution, it is Congress’s job under Article I, Section 8 of the Constitution to “collect taxes” for the “general welfare” and to spend the money as it deems fit for that purpose. The power to tax and spend is an area of broad Congressional discretion. Congress deemed pandemic response supplies to be necessary for the general welfare of the country and, thus, the strategic national stockpile law was written. The president took a Constitutionally-required oath to “faithfully execute” this law.

Because the federal government populated the field of law in the area of pandemic response, the states have not done so. For instance, in New York, America’s ground zero for the pandemic, a Law&Crime review of state statutes suggests no clear legal desire by the state to amass a state stockpile. In the wake of 9/11, it’s not unreasonable to assume that New York may have left the job to the federal government because the federal government assumed the responsibility of stockpiler-in-chief. To this point, New York State’s executive law which deals with disaster emergencies vaguely references the management of the distribution of “medical supplies” but does not contain provisions for buying supplies. New York’s Cold War-era Defense Emergency Act of 1951, which isn’t even contained in the state’s current consolidated laws, calls for “the procurement and stockpiling of materials necessary to the survival, recovery and rehabilitation of the state and of its inhabitants.” However, this law applies only in the event of an “attack … by an enemy or a foreign nation upon the United States,” and its purpose is clearly to deal with “attack by atomic bombs or other radiological weapons.” It is not a pandemic response law. Perhaps this is part of the reason why the administration of Gov. Andrew Cuomo, a Democrat, did not secure ventilators despite a much-talked-about internal assessment suggesting they were needed. The state legislature simply has not put a clear law on the books which requires stockpiling.

Yet President Trump keeps saying — over and over again — just like the Big Lie — that states are responsible for securing medical gear for their residents. That is not accurate, and federal law proves it. Tuesday morning, Trump repeated this Big Lie again in a tweet which sought to trash the New York governor:  “Cuomo’s been calling daily, even hourly, begging for everything, most of which should have been the state’s responsibility, such as new hospitals, beds, ventilators, etc.,” the tweet said.  “I got it all done for him, and everyone else, and now he seems to want Independence! That won’t happen!”

Another tweet then suggested that state governors who are Democrats are “mutineers” for trying to secure their own medical gear or even remain close despite Trump’s wishes to have the stock market once again booming:

These tweets came the morning after a rambling Monday coronavirus briefing where Trump claimed an “ultimate authority” as president to reopen the states for business. So, Trump wants two things:  one is “ultimate authority;” the other is to pass the buck to the states. Harry Truman — “the buck stops here” — be damned in these times.

During that Monday briefing, Trump touted a series of contracts for medical gear to replenish the legally-required strategic national stockpile. “We’re adding 6,190 ventilators,” Trump said of the stockpile. “We have a lot already, thousands, close to 10,000,” he added, despite his own administration recently providing numbers to the House Oversight Committee which indicated the stockpile was very close to empty.

Manufacturing more supplies seems laudable, but the supplies, legally, were required to already be there. Why? Because federal law says so. Just like the Big Lie theory, Trump keeps dodging questions about this law in well-documented briefings. Here’s more of what he said Monday from his daily coronavirus briefing:

We’re going to help states if they need it. We may help some states stockpile. You know, they’re supposed to buy their own stockpile. They have state stockpiles. They’re supposed to be using them. And, unfortunately, most of the states weren’t there, and a lot of people didn’t want to talk about it, but they weren’t there. Uh — we will talk about it at the right time if you want to. I — I — at this point, uh, I’m more focused on getting past this nightmare of the epidemic or a pandemic, anything you want to call it, we’ve got to get past it.

No one who has needed a ventilator has not gotten a ventilator. Think of that. When you hear about ‘ventilators, ventilators, we need ventilators,’ because they didn’t have them, because the states should have had them. No one who has needed a ventilator has not gotten a ventilator.

We have already documented how the Trump Administration has ignored official requests from Democrats for supplies yet responded to requests from Republicans for supplies. Trump has also accused doctors who have gone on television to complain of a lack of supplies of feeding into “fake news.”

While there is a legitimate gripe about the stockpile not being properly funded, Trump is incorrect when he merely blames prior administrations (e.g., Obama) for the problem. “We inherited a stockpile where the cupboards were bare,” Trump said Monday night. “They didn’t want to spend the money” to replenish it. Trump fails to note that the “they” he’s referencing are actually the Republicans in Congress who cut the budget during the Obama years and depleted the stockpile. The process by which that occurred has been well documented by ProPublica. Trump’s penchant for blaming Obama three years into his own administration also should fall upon deaf ears:  he’s been in office through enough budget cycles to change things. Instead, he passed tax cuts. Now, we don’t have medical supplies. (It is duly noted that the newest version of the stockpile law, passed because of COVID-19, requires the stockpile to be managed “regardless of whether” funding is there.)

The Washington Post has cited anonymous administration officials to report that “the White House has made a deliberate political calculation that it will better serve Trump’s interest to put the onus on governors — rather than the federal government — to figure out how to move ahead.” To succeed, that so-called “deliberate political calculation” depends on Americans not reading and understanding what the strategic national stockpile law says. To admit that the law is designed to function with the federal government taking the lead would mean that Trump would have to accept blame for himself, his administration, or his political party (which gutted strategic stockpile funding during the Obama years).

The law is not a secret; it is written down and able to be read by all. Just like the Big Lie, many don’t want to believe what it says. The kinds of Twitter reactions we’re seeing pop up far and wide suggest that Trump’s deflection is working.

Some called out Gov. Cuomo for a so-called “FAIILED” [sic] state stockpile which isn’t even clearly required by state law:

Some couldn’t even remember the governor’s name; they instead named his father.

Pro-Trump sex counselors are even calling for Cuomo to be investigated.

Nothing Trump says over and over again will change this fact: the law is clear. Read it right here.

[Photo by Alex Wong/Getty Images.]

This is an opinion piece. The views expressed in this article are those of just the author.

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Aaron Keller holds a juris doctor degree from the University of New Hampshire School of Law and a broadcast journalism degree from Syracuse University.  He is the anchor and executive producer of Law&Crime Daily on the Law&Crime Network.  The broadcast is a recap of the day's most compelling trials and court proceedings.  He also serves as an editor for the Law&Crime website. DISCLAIMER:  This website is for general informational purposes only.  You should not rely on it for legal advice.  Reading this site or interacting with the author via this site does not create an attorney-client relationship.  This website is not a substitute for the advice of an attorney.  Speak to a competent lawyer in your jurisdiction for legal advice and representation relevant to your situation.