U.S. President Donald Trump on Monday that he has the absolute power to tell state governors to end their lockdowns and allow the U.S. economy to reopen.
“When somebody’s president of the United States, the authority is total, and that’s the way it’s gotta be,” Trump said.
But legal experts say it’s not as simple as that. While the framers of the U.S. Constitution gave the president enormous powers, they also imposed limits that require the occupant of the White House to justify his use of those powers invested in his office.
“The issue is complex. It’s not as simple as Trump says,” said Donald Jones, a constitutional law professor at the University of Miami. “He just can’t do whatever he wants, that’s for sure,” he added.
Whether he had the power to tell the governors to open the economy is highly questionable, scholars say. At the very least, the president would have to show it was “a question of necessity,” to avoid irreversible damage to the economy.
“We do, as a public, have an interest in a viable economy. But, is it something that can be objectively rooted in necessity? He (Trump) needs the strongest possible justification,” said Jones.
As its name suggests, the United States is a conjoined, federalist system, with power shared between a national and state governments.
Legal experts say a U.S. president actually has quite limited power in case of a public health emergency to order citizens to go back to work, or reopen businesses. In fact, Trump has previously argued that states have the responsibility to handle public health issues, such as covid-19 testing.
The social distancing policies the White House announced on March 16 to slow the spread of the coronavirus were only guidelines, and states were not required to adopt them. Many governors chose not to at the time, including the Republican Governor of Florida, Ron DeSantis, though he did eventually issue his own statewide stay-at-home order on April 1.
Now, Trump says he does have the power to tell states to lift those orders. But, experts say Trump can’t have it both ways.
Under the 10th Amendment of the U.S. Constitution, states reserved certain rights for themselves that were not essential to the functioning of the federal government, such as local policing, health, and education.
It’s text reads: “ 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.”
As he did on March 16, the president can issue nationwide guidance, but it would potentially be unconstitutional for him to override stay-at-home orders from governors, according to Robert Chesney, a professor of national security law at the University of Texas.
Jones agrees that Trump does have the option of taking it to the people, and appealing to those in his base who are anxious to return to work for pressing financial reasons, perhaps even if that means risking their health. After all, a lockdown cannot go on forever, as it would eventually destroy the economy.
“I don’t think he can do it without strong public support. The ultimate arbiter is the American people,” said Jones. “Trump would have to put his finger to the wind and take a measurement. But if he is wrong, and thousands of people die as a result, he could be removed from office,” he said.
As an example, President Franklin D. Roosevelt famously liked to do fireside chats to make his case to the people. Trump prefers to hold mega rallies in large auditoriums, something he obviously can’t do in the current circumstances.
On the other hand, there are those who vehemently object to the economy reopening too fast because of the risk it poses.
"It's about your mother. It's about your loved one. And we will do anything we can to make sure that they are protected,” New York Governor, Andrew Cuomo told reporters recently. "My mother is not expendable. Your mother is not expendable ... The first order of business is save lives, whatever it costs," he added.
Jones said Trump was in a tough dilemma, facing literally what could be a life or death decision.
“He can’t guess wrong, he has to get it right,” he said.
The president does have emergency powers, under a federal law known as the National Emergencies Act (NEA) which give Trump broad powers to redirect funds and suspend laws. Trump already did that on March 13.
But, declaring a "national emergency" does not give the president any general power to do whatever he wants, and still requires him to identify specific statutes, according to Chesney.
“If there is an otherwise-constitutional federal law compelling an outcome that runs contrary to a state or local rule, the federal law prevails. But it does not follow that President Trump can therefore override state and local rules on matters like shelter-in-place,” he wrote on Lawfare, a legal blog on war and national security issues.
“No currently existing statute plausibly can be read to confer such an authority on the president …the various statutes triggered by a declaration under the National Emergencies Act—none of these come close to authorizing something like this,” he added.
Trump has used the Defense Production Act, which lets the president “expedite and expand the supply of resources from the U.S. industrial base,” to ramp up production of vital medical equipment. But that only applies to private companies and doesn’t help him with the state governors.
Numbers and test kits
In this case, Trump cannot simply order the governors to open the economy and ignore the spread of the virus. Rather, he has to justify his decision by showing that the number of new infections is going down at a rate that scientists believe is safe and a new outbreak can be kept under control, or prevented altogether.
It would also help if the federal government was able to put in place a testing system that allows everyone to easily get a test before going back to work. But so far, the government has failed to do that, and Trump has, to his own detriment, argued that states have the responsibility for testing.
“You could only make a claim of necessity if you can make the case that the spread (of covid-19) is under control and you would need some kind of mechanism to demonstrate that,” said Jones.
With the right technology, such as home testing kits and Bluetooth, the government could monitor who has the disease and who doesn’t, as is already being done in Asia. “There has to be a game plan,” said Jones.
“Testing could get us out of the crisis. You could make a rule that you can’t come out without the test. If we could do that, the dilemma would resolve itself,” he added.
If Trump was to go ahead anyway, it would likely spark a constitutional crisis requiring the Supreme Court to make a quick ruling.
To conclude, although the president does enjoy great power, and can temporarily extend the reach of his power in times of war and in a national emergency, this does not provide the “total” authority that Trump claimed to have on Monday.
Hence, we rate Trump's April 13 comment as false.