Washington Lawyer - July/August 2020 - 35

FEATURE
The actual conduct of foreign negotiations, the preparatory plans
of finance, the application and disbursement of the public moneys
in conformity to the general appropriations of the legislature, the
arrangement of the army and navy, the direction of the operations
of war - these and other matters of a like nature, constitute what
seems to be most properly understood by the administration of
government.

According to Green, the first-tier definition of the three branches superintending together reflects Hamilton's blending of the different branches in
operation, which also found expression in James Madison's partial agency
doctrine of overlapping and mutually supportive government activities.
While the boundaries between the branches are hard and clear today
(Hamilton sought advisories from the judiciary, a practice discontinued
pretty early in American history), this blending is still a vibrant reality for
public administration, Green says. Early and mid-career administrators in

Courtesy of Richard Green

It is a two-tiered definition of public administration, Green explains,
"which starts with the definition of the operation of the governing
system as a whole, meaning all three branches superintending public
administration. And then Hamilton offers the more usual definition as
matters of executive detail, and of course those details were breathtaking in scope."

"This is the fundamental
lesson of Alexander Hamilton:
If you don't provide national
and state and local
administrative institutions
that infrastructure to quietly
operate mostly harmoniously,
we have no commercial
republic."
RICHARD GREEN
University of Utah
Green's class have expressed that they're interacting more with legislative
offices than with their executive branch superiors.
Green is also drawn to Hamilton because of the latter's ardent advocacy
for "responsible administration," with public servants swearing loyalty to
uphold the Constitution and the law. This tradition of responsible public

TESTING THE LIMITS & STRENGTHS OF FEDERALISM
By Jeremy Conrad

A

lexander Hamilton once said
that the only way the republican
system of governance he had
helped create could be subverted is
by "flattering the prejudices of the
people, and exciting their jealousies
and apprehensions, to throw affairs
into confusion, and bring on civil
commotion." Critics argue that the
federal response to the novel coronavirus has done precisely that.

power in the president to take emergency
powers in the United States.
"Relations between state and federal governments create a stage in which the resulting
federalism theater is evanescent," Huq continued. "The actions leave no trace on the
law." Contradictory statements about federal
authority impact perceptions but do nothing
to advance an effective response, Huq said.

However, Seifter cautions that these
responses have their limitations. Failure of the
federal government to intervene in the procurement of goods can lead to states
engaging in a bidding war, as has happened
as states scrambled to deal with the shortage
of protective personal equipment and other
medical supplies to fight the coronavirus.

This can result in unfair and inefficient distribution of supplies, and actions seeking to
In the absence of a coordinated federal
limit interstate mobility could create
plan to combat the coronavirus pandemic,
problems, according to Seifter. Even if such
states have been left to explore the relative
measures pass constitutional muster, they
strengths and limitations of their own ability
Aziz Huq, professor at the University of
entail practical difficulties in implementation.
to deal with the crisis, said Miriam Seifter,
Chicago Law School, points to President
associate professor of law at the University of In the long run, Seifter said, "the federal
Trump's notorious affinity for Twitter as an
Wisconsin Law School. Pursuant to their police system can be a restraint on the virus
example. The president tweeted, at one point, power, states have been able to enforce stay- response, even as it provides an alternative to
that he had total power to determine when
centralized chaos."
at-home orders without federal assistance or
and how states reopen to end the coronavirus permission.
Criticisms aside, Seifter and Huq said a national
lockdowns. The tweet had little basis in the
law, Huq said during a May 12 briefing call on States also have preexisting systems they can crisis such as this pandemic requires a strong
federal response. Actions by individual states
more nimbly adapt to changing circumthe COVID-19 crisis hosted by the American
will be critical, but as Hamilton remarked in the
stances
than
the
federal
government,
Seifter
Constitution Society. "States have police
power to regulate for public health and safety said, such as those relating to unemployment, Federalist Papers, "the vigor of government is
essential to the security of liberty."
access to food, and medical services.
. . . The Constitution reposes no general

JULY/AUGUST 2020

*

WASHINGTON LAWYER 35



Washington Lawyer - July/August 2020

Table of Contents for the Digital Edition of Washington Lawyer - July/August 2020

Digital Extras
Your Voice
From Our President
Election Coverage
Practice Management
Calendar of Events
When Law Firms Go Remote feature
Disaster Preparedness for Lawyers feature
Staying Afloat feature
Privacy Rights During a Pandemic Feature
Hamilton's Enduring Legacy feature
Annual Report
Taking the Stand
The Learning Curve
On Further Review
Member Spotlight -
Worth Reading
Attorney Briefs
Disciplinary Summaries
Women's Suffrage special section
Speaking of Ethics
A Slice of Wry
Washington Lawyer - July/August 2020 - Cover1
Washington Lawyer - July/August 2020 - Cover2
Washington Lawyer - July/August 2020 - 1
Washington Lawyer - July/August 2020 - 2
Washington Lawyer - July/August 2020 - 3
Washington Lawyer - July/August 2020 - Digital Extras
Washington Lawyer - July/August 2020 - Your Voice
Washington Lawyer - July/August 2020 - From Our President
Washington Lawyer - July/August 2020 - Election Coverage
Washington Lawyer - July/August 2020 - Practice Management
Washington Lawyer - July/August 2020 - Calendar of Events
Washington Lawyer - July/August 2020 - 10
Washington Lawyer - July/August 2020 - 11
Washington Lawyer - July/August 2020 - When Law Firms Go Remote feature
Washington Lawyer - July/August 2020 - 13
Washington Lawyer - July/August 2020 - 14
Washington Lawyer - July/August 2020 - 15
Washington Lawyer - July/August 2020 - 16
Washington Lawyer - July/August 2020 - 17
Washington Lawyer - July/August 2020 - Disaster Preparedness for Lawyers feature
Washington Lawyer - July/August 2020 - 19
Washington Lawyer - July/August 2020 - 20
Washington Lawyer - July/August 2020 - 21
Washington Lawyer - July/August 2020 - Staying Afloat feature
Washington Lawyer - July/August 2020 - 23
Washington Lawyer - July/August 2020 - 24
Washington Lawyer - July/August 2020 - 25
Washington Lawyer - July/August 2020 - 26
Washington Lawyer - July/August 2020 - 27
Washington Lawyer - July/August 2020 - Privacy Rights During a Pandemic Feature
Washington Lawyer - July/August 2020 - 29
Washington Lawyer - July/August 2020 - 30
Washington Lawyer - July/August 2020 - 31
Washington Lawyer - July/August 2020 - Hamilton's Enduring Legacy feature
Washington Lawyer - July/August 2020 - 33
Washington Lawyer - July/August 2020 - 34
Washington Lawyer - July/August 2020 - 35
Washington Lawyer - July/August 2020 - 36
Washington Lawyer - July/August 2020 - Annual Report
Washington Lawyer - July/August 2020 - 38
Washington Lawyer - July/August 2020 - 39
Washington Lawyer - July/August 2020 - 40
Washington Lawyer - July/August 2020 - 41
Washington Lawyer - July/August 2020 - Taking the Stand
Washington Lawyer - July/August 2020 - The Learning Curve
Washington Lawyer - July/August 2020 - On Further Review
Washington Lawyer - July/August 2020 - 45
Washington Lawyer - July/August 2020 - Member Spotlight -
Washington Lawyer - July/August 2020 - 47
Washington Lawyer - July/August 2020 - Worth Reading
Washington Lawyer - July/August 2020 - 49
Washington Lawyer - July/August 2020 - Attorney Briefs
Washington Lawyer - July/August 2020 - Disciplinary Summaries
Washington Lawyer - July/August 2020 - Women's Suffrage special section
Washington Lawyer - July/August 2020 - 53
Washington Lawyer - July/August 2020 - Speaking of Ethics
Washington Lawyer - July/August 2020 - 55
Washington Lawyer - July/August 2020 - A Slice of Wry
Washington Lawyer - July/August 2020 - Cover3
Washington Lawyer - July/August 2020 - Cover4
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