Trump Claims ‘Total’ Authority to Order States Open

Nope: It’s up to the governors. Trump’s latest assertions of presidential power have no basis in constitutional reality.
by Kim Wehle
April 13, 2020
(Photo by Mandel Ngan / AFP; collage by Hannah Yoest)

In his latest display of breathtaking constitutional ignorance, President Trump said at his daily press briefing on Monday that “When somebody’s the president of the United States, the authority is total.”

This answer came in response to a reporter’s question asking him to clarify the power of his office, vis-à-vis the governors, to reopen businesses in the United States. “The authority is total, and that’s the way it’s gotta be,” Trump continued. “It’s total. And the governors know that. . . . The authority of the president of the United States having to do with the subject we’re talking about is total.”

When pressed by reporters to cite specific constitutional provisions giving him the authority to order states to end their shutdowns, Trump promised to provide a legal briefing. When asked whether any governor had agreed he possesses the authority he claims, Trump responded: “I haven’t asked anybody. Because, you know why? I don’t have to.”

Earlier in the day, Trump made a similar comment on Twitter, rebuking those who claim that he lacks the power to override state quarantine directives:

The fact that several hours elapsed between his tweets and his statements at the press briefing suggests that no one on the White House staff succeeded in explaining to the man who once swore an oath to “preserve, protect and defend the Constitution” that he does not possess the powers he claims.

As previously explained here in The Bulwark, federal statutes give the president substantial authority to issue nationwide directives aimed at stopping the spread of the coronavirus between states if the president determines that the states aren’t doing enough to protect the public. But although he does have broad legal power to protect public health in the face of conflicting state directives—power he has largely refused to use—he does not have reciprocal legal power to compromise public health by overriding state efforts to protect state populations.

Nor can he order private companies to reverse corporate decisions to shutter their own operations. Say he believes the economy needs a robust hospitality industry more than thousands of individuals need their lives spared by minimized exposure to the coronavirus; that still doesn’t give him power to order Disney World to open its doors.

To understand why, let’s return to a few constitutional basics.

First, the reason the president has broad national powers to protect public health in the face of a pandemic is Congress. The Constitution gives the president the power to execute the laws, among other things, but those laws are generally passed by Congress. For example, in 1944, Congress passed the Public Health Service Act, which gives the executive branch certain powers for use in preventing the introduction, transmission, and spread of diseases from foreign countries into the United States and also between the states. Without congressional authority, the president’s ability to make laws unilaterally is limited—it happens to some degree through executive orders and also by virtue of regulations enacted by administrative agencies. But agencies get their powers from Congress, as well, even though they are headed by presidential appointees, and thus answerable to the president. There is no “total” authority assigned to any branch of government in the Constitution—and that’s by design. The Framers of the Constitution rejected an absolute monarchy; one doesn’t need to be a constitutional scholar to accept that foundational proposition as near-gospel when it comes to American political theory.

Second, under the 10th Amendment, “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.” What this “residual” power means is that the federal government only gets the powers spelled out for it in the Constitution—the rest of the people’s power to self-govern remains in their own hands or in the hands of the state governments. The 10th Amendment is accordingly where the so-called “police power” comes from—the power to manage public health, safety, and even morality. It generally belongs to the states. Individual states have their own organized police forces, drinking-water sanitation programs, and yes—quarantines during pandemics.

The federal government has successfully exercised preemptive police power in certain areas, to be sure—such as regulation of food, drugs, and the environment—but the Supreme Court has snubbed other federal attempts to supersede state police power. In New York v. United States, for example, the court in 1992 struck down on 10th Amendment grounds a federal law requiring states to dispose of radioactive waste within their borders.

Third, and relatedly, even if President Trump were to use his statutory power to preempt state quarantines in favor of a national program aimed at protecting the country from COVID-19 (which he has thus far declined to do), the Supreme Court could conceivably strike down the effort—even though Congress gave him that power by statute, presumably pursuant to its own constitutional authority to regulate interstate commerce. A conceivable rationale for constitutionally dismantling a federal quarantine would be the states’ 10th Amendment police power. But a president who “forced” the states to dismantle their quarantine programs would be acting without congressional authority altogether. Without any law to enforce, Trump’s Article II power to execute the laws would not save him.

Fourth, it’s impossible to imagine how President Trump would enforce such a lawless directive, anyway. The Posse Comitatus Act and various Department of Defense regulations forbid the president from using the U.S. military for law-enforcement purposes absent congressional authorization. (The U.S. Coast Guard is an exception.) So Trump’s commander-in-chief authority doesn’t get him the absolute power his rhetoric claims, either. By the same token, in its most important case on this subject to date, the Supreme Court in Youngstown Sheet & Tube Co. v. Sawyer rejected President Harry Truman’s attempt to seize and operate the nation’s private steel mills by executive order. Despite the need for steel to fight the Korean War, the court held that the president lacked the authority to take possession of private property—a co-opting of private industry that Trump’s I’m in charge of everything power to reopen the economy would mistakenly encompass, as well.

One very slight silver lining of the Trump administration’s catastrophic handling of the coronavirus pandemic is the opportunity it affords Americans to revisit, and perhaps learn for the first time, some constitutional basics. In this moment, the scope of the president’s power in the face of Trump’s extraordinary claims is perhaps the most important of them all.

Kim Wehle

Kim Wehle is a contributor to The Bulwark. She is a professor at the University of Baltimore School of Law, a former assistant U.S. attorney and associate independent counsel in the Whitewater investigation, and the author of How to Read the Constitution—and Why (HarperCollins). Her new book, What You Need to Know About Voting—and Why (HarperCollins) goes on sale today, June 16. Twitter: @kimwehle.