President Donald Trump‘s recently ballyhooed presumptions of presidential power appear to have ended with an admission Thursday night that state governors and local officials are actually the ones in charge of on-the-ground emergency health and containment decisions. Some say Trump’s move will allow him to deflect blame for any future flareups of the novel coronavirus, COVID-19. Or, Trump may have finally realized that he did not have the power to claim “total” authority to reopen the country.
That days-old “total authority” pronouncement resulted in a myopic search for legal justification — also known as an excuse — by many Trump supporters. Their quest hatched the theory that the Supremacy Clause of the United States Constitution gives the president the power to basically do whatever he wants. Thus, as Trump’s supporters reasoned, Trump was correct when he indicated his power was absolute when it came to ordering the American people back to work, the country back to normal, and the stock market back to concomitant records.
We have the one we want, @realDonaldTrump for @POTUS You obviously need to bone up on the Constitution, Bill of Rights, & Supremacy clause.
Go sit down & worry about your dictator governor.#Trump2020 #Trump2020LandslideVictory— Pro Libertate (@prolibertate7) April 14, 2020
Paragraph 2 of the U.S. Constitution is commonly referred to as the Supremacy Clause. It establishes that the federal constitution, and federal law generally, take precedence over state laws, and even state constitutions. Maybe you should read more and talk less.
— Michael (@Sabotage69) April 14, 2020
I would like the remind you of first the first amendment, secondly of the Supremacy Clause also known as Article VI of the Constitution. It does not say “unless there is a pandemic and people are scared.”
— ✨Her Royal Wickedness✨ (@a_little_tea) April 14, 2020
This theory is not an accurate description of any traditional analysis of the Constitution based on the document itself or the cases which interpret it.
The Supremacy Clause (Article VI, Paragraph 2) states:
This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.
Notably, executive orders (either by state governors or by the president) are not mentioned as “supreme.” The Constitution, laws (arguably, that means statutes), and treaties are supreme. With that out of the way, let’s narrow things down: Under the Supremacy Clause, laws (statutes) are only supreme where they are made “in pursuance” of the rest of the Constitution. That’s what the clause itself says. Therefore, the Supremacy Clause cannot be read in isolation.
The Supremacy Clause is interpreted three ways: actual conflict, the prevention of the achievement of a federal objective, or preemption.
If a state law and a valid act of Congress are in actual conflict, federal law wins. The key here is that the act of Congress has to be valid pursuant to the rest of the Constitution.
If a state law frustrates the achievements or goals of an act of Congress, federal law also wins. An example of this is a Supreme Court decision which struck down a state law which interfered with federal bankruptcy law.
If the federal government “occupies the field” of an area of regulation or legislation, federal law again wins. Many federal laws explicitly say they preempt all other state laws to the contrary. The ones which don’t are said to invoke implied preemption.
Federal supremacy can be hard to prove. A drugmaker facing a personal injury lawsuit in state court said that its labels were compliant with the federal Food and Drug Administration and, therefore, the injury lawsuit which argued insufficient labeling had to fail. The U.S. Supreme Court held that the FDA regulations did not preempt local personal injury claims. Another Supremacy Clause case resulted in a holding that Montana could apply a hefty state tax of up to 30% on coal mined within its borders. A power company unsuccessfully attempted to argue that federal mining law preempted state tax law. The court held that it didn’t.
Other cases have come out differently. One held that a series of federal statutes and an executive order made pursuant to those statues trumped a Massachusetts state law which affected commerce with Burma (Myanmar). This was a unanimous no-brainer: international commerce is the federal government’s job. Analogously, as Arizona v. U.S. pointed out, the federal government “has broad, undoubted power over the subject of immigration and the status of aliens.” That case famously held in 2012 that many Arizona immigration statutes were preempted by federal laws.
This conversation can take us quite far into the weeds which conceal other legal rabbit holes, but the takeaway here is that there the Supremacy Clause applies to valid federal laws.
What constitutes a valid federal law? Let’s check the Necessary and Proper Clause (Article I, Section 8, Clause 18):
The Congress shall have Power . . . To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by the Constitution in the Government of the United States, or in any Department or Officer thereof.
The clause, sometimes called the “elastic clause,” is said to be an enlargement, not a restriction, of federal power. That is not the whole story. This Clause explicitly references “foregoing Powers” which include things like naturalizing citizens, minting money, raising armies and navies, and supporting “the progress of science and useful arts.” A laundry list of “foregoing Powers” appears in Section 8.
Here’s how it works: because Congress has constitutional authority to advance “science and useful arts,” Congress has passed intellectual property laws which create patents, copyrights, and trademarks. Those laws are an enlargement of the specific, enumerated constitutional function of advancing “science and useful arts,” but they are not a new area of federal authority altogether. Congress also has the power to regulate interstate commerce. That means a rogue state cannot require special mud flaps on trucks and trailers; such a law infringes on the flow of commerce from other states where trucks have normal mud flaps. The trucking issue was litigated in 1959.
The bottom line here is that neither Congress nor the president can simply make up a new area of regulatory authority out of thin air. What Congress does has to conform to its core responsibilities under the Constitution.
Why are we talking about Article I laws when Article I deals with the legislative branch, not the executive branch? Here’s why.
The Executive Branch is contained in Article II, but again, the core of the president’s role is defined. Section II states that the president is the (1) commander in chief of the military; that he (2) may seek advice from executive departments; that he (3) can grant reprieves and pardons; that he (4) can make treaties with senate consent; and that he (5) can make certain appointments (ambassadors, judges, etc.). Other duties are scattered elsewhere, such as the State of the Union Address, the power to sign legislation, and the power to see to it that the laws passed by congress are faithfully executed. That’s the bulk of the president’s job description.
Nowhere in the president’s enumerated authorities does there appear the ability to “open the states.” That authority would have to come from a law passed by Congress. No such law exists, as we and others have pointed out.
This all brings us to the Tenth 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.
Many, like Gov. Andrew Cuomo (D-N.Y.), have leaned heavily on the Tenth Amendment in recent days to push back against Trump. There is no clear federal authority for the president to unilaterally meddle with local health matters. Yes, the president can manage the Strategic National Stockpile (when Congress funds it) and order quarantines for people crossing state and international borders, but he cannot lift disaster declarations by governors. Even presidential disaster declarations are initiated outside the White House. “All requests for a declaration by the President that a major disaster exists shall be made by the Governor of the affected State,” the law says.
To recap, the supremacy clause must be interpreted in conjunction with all of the other provisions of the Constitution. It is best restated this way: if the constitution grants powers to the federal government, then those federal powers are ‘supreme.’ States can’t pass laws to interfere with the federal government’s job to carry out its enumerated federal powers. Where federal powers are not enumerated, then they are reserved to the states.
As of Thursday evening, the president appears to have backed down from claims he can act with “total authority,” though he did awkwardly suggest it was he who was allowing the governors to be “empowered” to manage their own states. The powers of governors come from the federal and state constitutions, not from the president. Trump can attempt to persuade governors — and he has, including through tweets which called for the “liberation” of states. He can even control the flow of materials and money. He cannot legally control governors directly. Those who think Trump can claim “total authority” will hopefully heed and consider the foregoing constitutional provisions when making their future arguments.
[Featured photo by MANDEL NGAN/AFP via Getty Images.]
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