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Executive Power in an Epidemic

Congress was in recess in August 1793, as the first cases began to appear in what would become a major yellow fever epidemic in the nation’s capital, Philadelphia. The disease was poorly understood; it would be another century before Dr. Walter Reed discovered that mosquitoes carried yellow fever. There were no effective treatments, no medical supplies or equipment that could improve a patient’s chances of survival. As the disease spread throughout the city, one thing was clear: the best way to avoid becoming ill was to avoid being in Philadelphia.

President George Washington left Philadelphia in September, and followed the reports of mounting yellow fever cases with concern from his home at Mount Vernon. In mid-October, he wrote to Congressman James Madison and Secretary of State Thomas Jefferson of “the calamitous situation of Philadelphia” and asked for an opinion:

Time presses, and the Malady at the usual place of meeting is becoming more & more alarming. What then, do you think is the most advisable course for me to pursue in the present exigency? Summon Congress to meet at a certain time & place in their legislative capacity? Simply to state facts, & say I will meet the members at the time & place just mentioned, for ulterior arrangements? or leave matters as they are, if there is no power in the Executive to alter the place, legally?1

In short, did Washington, as President, have the constitutional authority to order Congress to convene at a different location if the epidemic continued?

Oliver Pelton, engraving of George Washington after Gilbert Stuart, courtesy of Montpelier, a National Trust Historic Site.

Clearly it was a bad idea to convene Representatives and Senators from all 15 states in Philadelphia in the midst of a deadly epidemic. But why was Washington so hesitant to take action?

Washington’s dilemma may seem trivial to us, with two centuries of experience in constitutional governance, but the separation of powers (executive, legislative, and judicial) was still a new idea in political science. The U.S. Constitution had been in existence barely six years. The new government had been in operation just over four years. Everyone remembered the years of British rule, when the King called colonial legislatures into session where and when he chose, and dismissed them when he chose. This was one of the grievances against the King that the Continental Congress listed in the Declaration of Independence, as a reason for the American colonies to break ties with Great Britain:

[George III] has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public Records, for the sole purpose of fatiguing them into compliance with his measures.
He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.
He has refused for a long time, after such dissolutions, to cause others to be elected…2

If the President ordered Congress not to meet, or to meet somewhere other than Philadelphia, he would look as if he were taking on the powers of a king and violating Congress’s autonomy as a separate branch of government. He could also appear to be favoring one region of the country over another, depending on the alternate location he selected (both New York and Annapolis had been suggested). Yet if Washington did nothing, was he encouraging Congress to take a deadly risk? Would the members of Congress and their aides even be willing to return to Philadelphia?

William L. Breton, Residence of Washington in High Street, Philadelphia, published in John F. Watson’s Annals of Philadelphia… (Philadelphia: E. L. Carey & A. Hart, 1830). Courtesy of the Library Company of Philadelphia,

Washington’s letter to Jefferson happened to be delivered at Monticello just before Madison arrived there for a visit, giving Madison and Jefferson a chance to discuss the question in person. (Madison would receive his own letter from Washington after he returned to Montpelier.) The two agreed that that nothing in the Constitution allowed the President to change the meeting place of Congress. Jefferson quickly relayed his opinion to Washington, adding “Mr. Madison … thinks there was particular caution intended and used in the diction of the Constitution to avoid giving the President any power over the place of meeting; lest he should exercise it with local partialities.” 3

When Madison arrived home at Montpelier, he sent a more detailed opinion to Washington. First, Madison summarized the problem this way:

1. Ought the President to summon Congress at a time and place to be named by him? or
2 If the President has no power to change the place, ought he to abstain from all interposition whatever? or
3. Ought he to notify the obstacle to a meeting at Philadelphia, state the defect of a regular provision for the exigency, and suggest his purpose of repairing to [blank] as a place deemed most eligible for a meeting in the first instance?
4. What is the place liable to fewest objections?

Madison then presented his opinion: “From the best investigation I have been able to make in so short a time,” a presidential order to change the location of a Congressional session “seems to require an authority that does not exist under the Constitution and laws of the U. States. The only passage in the Constitution in which such an authority could be sought is that which says ‘The President may, on extraordinary occasions, convene both Houses, or either of them.’ But the obvious import of these terms is satisfied by referring them to the time only at which the extraordinary meeting is summoned.” In other words, the Constitution gave the president the authority to call a special session, essentially changing the time, but not the place, of a Congressional session. Madison cited “the 1st. paragraph of section 6th & the 3d. paragraph of section 7th. of article I,” declaring that these paragraphs “cannot well be reconciled with a supposition that it was meant to entrust the Executive alone with any power on that subject.”

After quoting chapter and verse of the Constitution, Madison recommended that Washington simply alert Congress to the danger and suggest – not order – an alternate location. Madison proposed a message that Washington might issue:

Whereas a very dangerous and infectious malady which continues to rage in the City of Philada. renders it indispensable that the approaching Session of Congress should be held, as well as the Executive Department be for the present administered, at some other place: And whereas no regular provision exists for such an emergency; so that unless some other place be pointed out, at which the members of Congress may assemble in the first instance, great embarrasments may happen: Under these peculiar circumstances I have thought it incumbent on me to notify the obstacle to a meeting of Congress at the ordinary place of their Session; and to recommend that the several members assemble at [blank] in the State of [blank] at which place I shall be ready to meet them.4

Engraving of James Madison after John Vanderlyn, courtesy of Montpelier, a National Trust Historic Site.

Once Washington met with Congress at the alternate site (Madison suggested another Pennsylvania location such as Reading or Lancaster, to avoid stirring up north-south rivalries), Congress could then determine for itself whether to hold its session there or elsewhere. Jefferson took an even more letter-of-the-law approach to changing the location: “… I think we have nothing to do with the question, and that Congress must meet in Philadelphia, even if it be in the open feilds, to adjourn themselves to some other place.” 5

Washington’s correspondence with Madison and Jefferson took place at what turned out to be the peak of the yellow fever cases in Philadelphia. When fall frosts killed off the disease-carrying mosquitoes, the epidemic finally came to an end. Approximately 5,000 Philadelphians had died, including John Todd Jr., his parents, and his infant son, leaving Dolley Payne Todd a widow with a toddler son. (James Madison did not know the Todd family at that time, although he would be introduced to the Widow Todd the following spring.)

Washington’s dilemma was now moot. Congress opened its session in Philadelphia in December without fear of the deadly disease.

Compared to the challenges of a global pandemic in the 21st century, Madison and Washington’s handwringing over the finer points of executive power during an epidemic may seem quaintly trivial. Yet it shows a fierce commitment to the rule of law. Madison and the other framers of the Constitution had likely never considered the particular scenario of an epidemic breaking out in the capital while Congress was in recess. Nonetheless, Madison would not use expediency as an excuse to ignore the separation of powers set out in the Constitution. Unlike King George III, the president of the United States would not be allowed the prerogative of calling the legislature into session at places of his own choosing. This commitment to the rule of Constitutional law, as shown by Madison, Washington, and Jefferson, kept the new nation firmly on the path that “we the people” had chosen.