“When somebody is the president of the United States, the authority is total. And that’s the way it’s got to be. It’s total.”
— President Trump, at a White House news briefing, April 13, 2020
Steve Holland, Reuters: “There’s a debate over what authority you have to order the country reopened. What authority do you have on this one?”
Trump: “Well, I have the ultimate authority.”
— Exchange at the briefing
At a coronavirus news briefing Monday, Trump said he could order hunkered-down states to reopen their economies. He claimed to have the “ultimate” authority on such decisions and that his authority was “total.”
This will be a short fact check, because the president of the United States is not a king.
After declaring independence from Britain and shaking off the yoke of King George III, the Founders of the United States adopted a system of government in which power would be split between the states and a centralized federal government.
The federal government has enumerated powers that it cannot expand, but the state legislatures are free to adopt powers not explicitly forbidden by their constitutions or the U.S. Constitution, according to Robert F. Williams, an expert on state constitutional law at Rutgers University Law School in Camden, N.J.
The 10th Amendment says, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
James Madison wrote in the Federalist 45: “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.”
The federal government’s powers, Madison wrote, “will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce.” The states, he wrote, would have power over “all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”
Which brings us to covid-19. Many states have adopted stay-at-home orders to mitigate the spread of the virus, but the economic costs have been steep and millions of people have lost their jobs amid the lockdown. Trump says he has the ultimate authority to decide when states reopen for business. But a range of governors and legal experts say he’s wrong.
“This is basic federalism — the role of the states and the role of the federal government,” said Gov. Andrew M. Cuomo (D-N.Y.). “We don’t have a king in this country. We didn’t want a king, so we have a Constitution and we elect a president. … All other powers remain to the states.”
The moment the president declares a national emergency, as Trump did for covid-19 on March 13, many limits on presidential power can be set aside. But not all limits. There doesn’t appear to be any constitutional provision, federal statute or court ruling that allows Trump to override the emergency actions taken by the states. Like the federal government, states also have strong emergency powers in their body of laws, especially to protect public health and safety. The stay-at-home orders currently in place operate under those laws.
“The President has no formal legal authority to categorically override local or state shelter-in-place orders or to reopen schools and small businesses,” Stephen I. Vladeck, a University of Texas School of Law professor, wrote on Twitter. “No statute delegates to him such power; no constitutional provision invests him with such authority.”
The Supreme Court has reinforced the separate roles of the states and the federal government multiple times. The court ruled in 1992 that the federal government cannot force states to run federal programs, what’s known as the “anti-commandeering doctrine.” In 1997, a court majority ruled that parts of the Brady Handgun Violence Prevention Act violated the 10th Amendment because it was a federal law requiring state and local law enforcement officials to conduct background checks on people attempting to purchase handguns.
Trump said at the briefing that “numerous provisions” in the Constitution gave him power over the states. The White House did not respond when we asked for an explanation.
The vast authorities bestowed on the U.S. president don’t include the power to micromanage states’ public health actions in an emergency.
Trump claimed to have “total” authority over the states and the “ultimate authority” to decide when they will reopen their businesses. But he couldn’t point to any law or constitutional provision backing up that assertion, and the White House did not respond to our query.
Meanwhile, a range of legal experts and governors say he’s wrong. Madison’s writings, the text of the 10th Amendment, and the Supreme Court’s rulings on the issue also run counter to Trump’s claim. He earns Four Pinocchios.
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