President Donald Trump falsely claimed on Monday that, as President, he has “total” authority to decide to lift restrictions governors have imposed to fight the coronavirus pandemic.
“When somebody’s the President of the United States, the authority is total, and that’s the way it’s got to be,” Trump said at a bitter White House coronavirus briefing.
Trump then said: “The authority of the President of the United States having to do with the subject we’re talking about is total.” And after speaking about local governments, he said, “They can’t do anything without the approval of the President of the United States.”
It wasn’t clear if he was referring to state or local officials with that assertion. But he was wrong regardless.
Facts First: The President does not have “total” authority over coronavirus restrictions. Without seeking or requiring Trump’s permission, governors, mayors and school district officials imposed the restrictions that have kept citizens at home and shut down schools and businesses, and it’s those same officials who have the power to decide when to lift those restrictions. There is no legislation that explicitly gives the President the power to override states’ public health measures. In addition, Trump said last week that he prefers, because of the Constitution, to let governors make their own decisions on coronavirus restrictions.
We can’t say for sure that the courts would not side with Trump if he attempted to challenge state restrictions on some constitutional grounds he has not yet identified. However, many legal scholars believe Trump would lose.
James Hodge, a professor and director of the Center for Public Health Law and Policy at Arizona State University, said Trump is “wrong” to claim he has the power to lift the states’ coronavirus restrictions.
“He can strongly encourage, advise, or even litigate whether states’ authorities to restrict public movements re: shelter in place or stay home orders are warranted, but cannot tell sovereign governors to lift these orders all at once just because the federal government determines it is high time to do so,” Hodge said in an email.
Trump’s Monday evening comments at the briefing echoed tweets from earlier in the day in which he asserted that “it is the decision of the President,” not governors, on when to “open up the states.”
“This tweet is just false. The President has no formal legal authority to categorically override local or state shelter-in-place orders or to reopen schools and small businesses. No statute delegates to him such power; no constitutional provision invests him with such authority,” Stephen Vladeck, a University of Texas law professor and CNN legal analyst, said on Twitter on Monday.
Trump did not personally shut down the economy. Rather, he issued non-binding guidelines on how people should keep their distance from each other. The guidelines begin as follows: “Listen to and follow the directions of your STATE AND LOCAL AUTHORITIES.”
No legislation says the President has the power to overturn the public health decisions of these authorities, Vladeck and other legal scholars say.
Trump did not explain why he believes he has this power. When CNN’s Kaitlan Collins asked him who told him he has “total” authority, he did not answer directly, instead saying, “We’re going to write up papers on this.”
When another reporter explained that the Tenth Amendment to the Constitution grants to states the powers not delegated to the federal government, Trump did not contest this interpretation – and instead sidestepped the question, saying he did not believe a state official who refused to reopen the economy could win reelection.
Trump-friendly website Breitbart broached the possibility that Trump could try to use the Constitution’s Commerce Clause, which gives Congress the power to regulate interstate commerce, to try to lift commercial restrictions.
Robert Barnes, a lawyer who supports Trump, argued to CNN on Monday that, “in the emergency context,” the President possesses these commerce powers the Constitution assigns to Congress.
Vladeck said Barnes’ claim is unfounded. While Vladeck said Congress might be able to pass a law authorizing the President to override some state and local restrictions – he emphasized the “might” – he said Trump does not have the power to override the restrictions on his own.
“Congress has delegated the President a bunch of powers for emergencies, but this isn’t among them,” Vladeck told CNN.
Hodge said states have a long-established authority to restrict some commerce for the protection of public health. And it is widely understood that state governments have the power to address public health emergencies within their states.
In a 2014 report, the Congressional Research Service, which provides nonpartisan research and analysis to Congress, looked at federal and state powers over quarantine and isolation. The report did not specifically address the question of a president wanting to override state public health measures, but it noted: “In general, courts appear to have declined to interfere with a state’s exercise of police powers with regard to public health matters ‘except where the regulations adopted for the protection of the public health are arbitrary, oppressive and unreasonable.’”
While both the Congressional Research Service report and the National Conference of State Legislatures say that the federal government can “take over” the management of a public health incident within a state “if the federal government determines local efforts are inadequate,” they do not specifically address a situation in which the federal government wants to take over because it believes the state is being too strict in trying to address the emergency.
Trump has some power
Trump himself has spoken as recently as last week about states’ constitutional powers during the pandemic, though he has asserted that he too has powers.
After he was asked on April 10 about the possibility of Florida’s governor opening up schools in May, the President said: “I like to allow governors to make decisions without overruling them, because from a constitutional standpoint, that’s the way it should be done. If I disagreed, I would overrule a governor, and I have that right to do it. But I’d rather have them – you can call it ‘federalist,’ you can call it ‘the Constitution,’ but I call it ‘the Constitution.’ I would rather have them make their decisions.”
Trump does have some clear, though limited, direct power. For example, he can order federal employees to return to their offices and reopen national parks and other federal property.
And he can, obviously, use his influence to try to persuade governors – and citizens – to do as he wishes.
It is also possible that Trump could try to leverage the “major disaster declaration” he has issued for each state – for example, attempting to require governors to take certain steps in exchange for federal assistance. Hodge, though, said it “could be unconstitutional” to try to impose new conditions for the receipt of federal funding after having already authorized the disaster declarations without such conditions.
Trump also asserted at the briefing that even Democratic governors would agree with his claim to total authority. New York Democratic Gov. Andrew Cuomo, speaking shortly after the briefing to CNN’s Erin Burnett, said he disagreed: “We have a Constitution. We don’t have a king.”