Presidential precedent exists for drastic action during crisis


September 10, 2021

President Joe Biden announced a six-pronged strategy on Thursday to try to contain the current outbreak of COVID-19. Its platform includes some fairly uncontroversial steps that include making home COVID test kits more readily available and extending the mask’s mandate into commercial air travel.

But the main element of Biden’s plan is one that has outraged the Republican Party and its leaders in Tennessee: a requirement that private companies with 100 or more employees must ensure those workers are all vaccinated against COVID-19 or that their employees take weekly COVID tests.

Governor Bill Lee’s first response, who spoke at a press conference Thursday, was that the vaccine’s mandate is “a terrible idea.” Shortly thereafter, he recognized that the vaccine is the best strategy available for, if not ending, mitigating the current wave.

Lee then tweeted, ““ It’s not about freedom, ”is a phrase that should never come out of the mouth of a US president.” Even more recently, Lee added that Biden’s plan was “cynical and sourced of division “.
Biden’s full sentence that Lee referred to was “It’s not about freedom or personal choice. It’s about protecting yourself and those around you.”

Apparently, many Republicans agree that the vaccine is vital in helping the people of Tennessee. The problem is, they don’t want to be told what to do, especially not by a Democratic president.

I don’t write to hit Republicans: I understand that they don’t want to be ordered, and I understand that. I also don’t like being told what to do.

But I’ll give a history of times when US presidents set mandates or made unpopular decisions in the name of national security or in times of national crisis.

A. Scott Berg, one of Woodrow Wilson’s definitive biographers, wrote that Wilson viewed the seizure of certain rights from Americans as acts of patriotism during the United States’ involvement in World War I. This meant that even though Wilson had said earlier in his career the Sedition Act of 1798 “dangerously severed the root of freedom of speech and of the press”, in 1918 he urged Congress to pass an amendment to the Espionage Act of 1917.

The United States Supreme Court sided with Wilson in 1918 when it upheld Charles Schenk’s conviction for distributing anti-conscription leaflets. Judge Oliver Wendell Holmes, Jr. wrote in the majority opinion that the First Amendment does not protect language that presents “a clear and present danger”, giving the government the right to limit such speech.

Long before Wilson’s actions superseded the First Amendment, President Abraham Lincoln suspended habeas corpus after the start of the Civil War in 1861. The habeas corpus ordinance is another fundamental constitutional right that states that it there must be legal grounds for detaining a prisoner and that prisoners cannot be detained indefinitely.

Lincoln suspended the writ of habeas corpus to give military leaders the right to arrest and silence individuals for actions deemed threatening to military operations.

President Lincoln suspended the habeas corpus ordinance and President Wilson interfered with civil liberties during World War I. There is a precedent for drastic presidential action in a crisis.

While both of these examples took place during wartime, it is indisputable that the COVID-19 pandemic is a national crisis, if not a war. According to the New York Times, more than 657,000 Americans have died from COVID. In Tennessee, more than 13,500 people have died from the virus or about 1.37% of Tennessees who became ill with COVID-19 have died.

Compare these numbers to Americans who died in wars: 117,000 Americans died in World War II. In The Second World War, U.S. military and civilian deaths have reached 418,500, more than 200,000 fewer than the number of people who died from COVID-19. In the Vietnamese conflict58,220 Americans died and of these 1,295 were Tennesseans.

And in our most recent conflict, the 20-Year War in Afghanistan, 6,294 US servicemen and civilian contractors were killed.

War is hell and military deaths are tragic. But so are deaths from COVID-19, and these are largely vaccine-preventable. I would bet that few Americans of any political stripe wholeheartedly endorse mandates like Biden’s that seem to challenge our notions of a free country and constitutional rights, but when people don’t do the right thing on purpose, leaders must make the decisions for them.

Tennessee Lookout is part of States Newsroom, a nonprofit network of state government news sites supported by grants and a coalition of donors.

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