The CDC is issuing the guidance that presumes to run our lives. But no one elected the CDC to anything.
The CDC is issuing the guidance that presumes to run our lives. But no one elected the CDC to anything.
F or a time back in the aughts, our big national debate centered on who should run national-security policy in wartime. The who question is about accountability, without which our constitutional system cannot function. The legitimacy of a democratic republic for a free, self-determining people ultimately depends on a transparent line: decisionmakers who answer to the people whose lives are impacted by those decisions.
The system was fraying then, but it is disintegrating now. That is a crisis. Not merely a COVID-19 crisis, but a crisis of representative government itself.
At the turn of the century, in the years after the 9/11 attacks, the judiciary made unprecedented intrusions on the war powers of the political branches: decreeing when the laws of war (rather than civilian due process) would apply, who qualified as an enemy combatant, which constitutional protections applied to aliens whose only connection to the U.S. was to make war on us, and what intelligence-collection methods were lawful — even with respect to non-Americans outside our country.
In the ensuing debates, I was fond of referring to the wisdom of Robert Jackson, who had been an iconic wartime figure in both the executive and judicial branches — FDR’s attorney general, the chief prosecutor at Nuremberg, and a justice of the Supreme Court. Writing for the Court in a 1948 case (Chicago & Southern Air Lines v. Waterman), Justice Jackson explained that decisions affecting our lives and safety (in that context, it was security against foreign threats) are the most consequential ones a body politic makes; in a free society, in which the people are sovereign, such decisions “are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil.”
That the judiciary had no aptitude for such decision-making was a problem, but a second-order one. The principal concern was constitutional legitimacy: Crucial decisions about our lives should be made only by elected officials who answer to us, and whom we can vote out of office if they get them wrong, or if their judgment is so poor they are bound to imperil us.
This conception of representative government is fundamental.
Back in those post-9/11 days, we used to argue a great deal about the “unitary executive.” This is the theory that the Constitution vests the full scope of executive power in the president. All other officials in the sprawling Article II branch are the president’s delegates; they exercise not their own power but the president’s, under the president’s direction and at the president’s pleasure — meaning that, even though major officials require Senate consent to be appointed, the chief executive must be able to fire them at will, for they are an extension of the president’s authority, not their own.
Progressives resist the unitary executive, although they like it well enough when a Democrat is in the White House, with a pen and a phone and dreams of being the next FDR. During Republican administrations, progressives insist that subordinate executive officials are independent of the president. It is political gamesmanship: A Democratic attorney general, for example, is at liberty to be the president’s “wing-man,” while Republican AGs must pledge to “represent the Constitution” and keep the president in line.
While they grumble about the unfairness of it all, Washington Republicans are actually smitten with the administrative state, too. It is an ingenious accountability dodge. Modern American officials, regardless of party, are delighted by an arrangement in which they can take credit when things go well but feign powerlessness and blame the faceless bureaucracy when things go wrong.
It is when things go wrong, though, that we need accountability most of all.
The Framers did not structure a unitary executive because they wanted the president to be a monarch; there are plenty of inter-branch checks to prevent that. The constitutional executive is unitary in order to ensure accountability. The system is built that way to make certain that when the executive branch must make a major decision that affects our lives, an elected official who answers to us cannot pass the buck.
Accountability concerns regarding national-security decisions became attenuated as the 9/11 attacks receded over time. People were intently interested in them right after the attacks because they felt their lives were deeply affected. But as the years passed, 9/11 did not recur, and the burdens of the war were shifted to military families. The public, never as invested in “War on Terror” as in the great wars of the 20th century, lost interest as the security mission morphed into futile nation-building exercises on the other side of the world.
That is not going to happen with COVID-19.
The government’s response to the pandemic is deeply affecting Americans of every age and demographic. Lives, health, education, livelihood, our security in the here and now, our children’s security now and in the future — everything is on the line. This is not something that’s happening in Fallujah and Kandahar. It is happening here, to us, very personally, every day.
So who is making the decisions? The Centers for Disease Control. There may be wilder constitutional anomalies than the CDC, but none of more consequence.
Do you even know what the CDC is — where it fits in Leviathan’s org-chart? If you don’t, it’s because they like it that way. The more fog, the less accountability.
Have a look at the CDC’s website. If you want to learn more about “World Hepatitis Day,” they’ve got you covered. But if you want to learn about the CDC — for example, what part of government it is in, whom it answers to — you better come ready to hunt. The website will exhaust you with everything you never wanted to know: top-line links to “Packaged Salad Greens — Salmonella infections” and “CDC awards $117 Million to Advance Innovation and Health Equity in Federal Initiative to End HIV.” You need to hang in there, scrolling ever lower to a tiny link near the bottom (right above the helpful information about Tagalog language assistance). That’s where, finally, we find “About CDC.”
There, you’ll be bludgeoned by more enervating bureaucratese, along with flattering profiles of the bureaucrats. Who’d have known that current CDC director Rochelle Walensky was once “the ninth Administrator of the Agency for Toxic Substances and Disease Registry”! What won’t be very clear, though, is that Dr. Walensky is not even a Senate-confirmed appointee. On the org-chart, the CDC is just one of several “operating components” of the Department of Health and Human Services. HHS is the bloated cabinet department with the Senate-confirmed secretary, Xavier Becerra. Walensky is one of several bureaucratic “component” heads who reports to Becerra, who, in turn, reports to the president.
The CDC is issuing the guidance that presumes to run our lives. But no one elected the CDC to anything. No one elected Dr. Walensky to anything. The people we did elect to the Senate did not get to vet her appointment because her job, in the dizzying vastness of the administrative state, is not deemed sufficiently senior.
She’s just senior enough to rule the country, not to rate a confirmation hearing.
And when you ask the White House what’s up with the erratic veers in COVID policy, President Biden, or Jen Psaki, or some other functionary assures you that the CDC will get it straightened out any time now.
So what is the CDC doing? The utterly unaccountable agency is ginning up new mask mandates for vaccinated people because of the alarming increase in serious COVID cases affecting unvaccinated people, who — given the fact that anyone who wants a vaccination can get one — are willfully running the risk of serious illness and death. (Obviously, I am not referring here to the miniscule part of the population with preexisting health problems that make vaccination dangerous.)
That makes no sense. The vaccines have proved themselves safe and effective. No one ever thought they’d block 100 percent of infections. The point is that, in addition to significantly reducing the chance of infection, they are highly effective at mitigating the effects of infection — such that vaccinated people rarely get seriously ill or die. That is the best we can hope for, and it’s a miraculous scientific achievement on such a tight time frame.
Patently, a rational policy would encourage the unvaccinated to get vaccinated. Mask mandates create exactly the opposite incentive. They burden the responsible people with the heedlessness of the irresponsible people, while encouraging the irresponsible people to persist in their irresponsibility.
My point here is not simply logic — a reasonably well-informed high-school student could explain what I just said. My point is that no government official who was accountable to voters would adopt so cockamamie a policy.
What the CDC is doing is not governing. It is moralizing. Its policy is objectively stupid, scientifically and psychologically. As a matter of left-wing politics, though, the CDC is in preening culture-war solidarity with progressives who favor mask mandates and reject the concept of agency — the idea that irresponsible people become responsible only when they are made to bear the consequences of their poor choices (the Left prefers to blame such consequences on the lack of “equity”).
It is not government’s job to moralize. Ideologues feel free to do so, however, because the accountability on which our self-determining republic is based has been eviscerated. There’s no consequence for using critically important government decision-making positions as soapboxes.
The CDC adopts inane policies because it is not accountable. The Biden administration would like to mandate vaccinations — which, putting aside any instinctive resistance to government mandates, makes a lot more logical sense than mandating masks. But the administration is behind the eight ball because the vaccines have only been approved for emergency authorization.
Whose fault is that? Biden officials will feign helplessness and tell you that it’s because the FDA hasn’t gotten around to final approval yet. Maybe they’ll stamp it on the Pfizer vaccine by . . . who knows . . . maybe January . . . maybe March. And then the other vaccines sometime after that . . . probably.
Why is the elected president waiting on the FDA? What is the FDA? Why, it’s another “component” of HHS. Sounds just like the CDC, except its chief administrator, the commissioner of Food and Drugs, is deemed high enough up in the bureaucratic pecking order to warrant Senate confirmation. So, I’m sure you’ll be shocked to learn, we don’t have a confirmed commissioner in the middle of our public-health crisis, when FDA action is urgently needed.
Why? Well, it hasn’t helped that, of all potentially qualified people, Biden decided to nominate Dr. Janet Woodcock, whose appointment has been under attack for months by a legion of health organizations and activists. In her previous gig, as head of the Center for Drug Evaluation and Research (CDER — an unaccountable post with no Senate confirmation), she is alleged to have made decisions that turbocharged the opioid crisis.
Fabulous. Nevertheless, it needs to be beside the point for present purposes.
When it comes to the big things, the government has to be able to act with dispatch. And in representative government, it has to act in an accountability framework that impels officials to make prudent choices, which will often be excruciating, calling for doing the least bad thing until a better option presents itself. In our regnant distortion of the Constitution, we instead have a non-accountability framework that invites officials to weave between virtue-signaling and throwing up their hands, as if governing were somebody else’s problem.
This is not going to fly, not when we’re dealing with basic safety and security. The pandemic has bubbled the crisis to the surface. But it’s not just a CDC crisis. It’s a legitimacy crisis.