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Trump Got Constitutional Law Totally Wrong During White House Coronavirus Briefing


President Donald Trump ignited a constitutional firestorm Friday during a White House coronavirus briefing by saying he could “overrule” decisions from state governors that he disliked. He can’t.

Trump’s comments came after a reporter’s question about whether Gov. Ron DeSantis (R-Fla.) would be wise to reopen schools in his state by the end of the month. The reporter also wanted to know from Dr. Deborah L. Birx and Dr. Anthony Fauci whether Gov. DeSantis was accurate to say children were not vulnerable to COVID-19, which has caused a worldwide pandemic. DeSantis on Thursday said he didn’t think anyone under age 25 had died from the coronavirus. Per CNN, which has a recording of the comments, here’s what DeSantis said:

I don’t think nationwide there’s been a single fatality under 25. For whatever reason it just doesn’t seem to threaten, you know, kids, and we lose in Florida between five and 10 kids a year for the flu. This one, for whatever reason, much more dangerous if you’re 65 and plus than the flu, no doubt about that.  If you’re younger it just hasn’t had an impact. So that should factor into how we’re viewing this.

Reacting to the question, Trump said, “well, I have a lot of confidence in Ron DeSantis, a lot of faith in Ron DeSantis, to make the right decision; he’s doing a great job as governor.”

President Trump then described his perception of the degree and nature of his own powers to legally intervene in the decisions of state governors to open or close their states.

“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 could call it Federalist, you could call it the Constitution, but I call it the Constitution — I would rather have them make their decisions.”

When pressed on the medical issue, Dr. Fauci said a congregation of people, such as in a classroom, could result in children becoming infected and bringing the infection home. When pressed on whether children under 25 could die and have died from COVID-19 infections, Fauci confirmed that they have. Fauci said he wished to be careful to not respond directly to the comments of any state politician.

(Connecticut authorities on Friday issued data which indicates 296 people under the age of 20 have tested positive for COVID-19; two under 30 have died.)

Trump’s description of his own constitutional authority immediately angered the legal community.

“Not so,” tweeted University of Texas law professor Bobby Chesney in response to a clip of Trump’s comments.

“President Trump thinks the Constitution is optional,” said Rep. Justin Amash, I-Mich., an attorney and former Republican.

It is well settled law that the judiciary, not the president, has the power to “overrule” things. Marbury v. Madison set up the premise of judicial review in 1803 with this now-famous line: “It is emphatically the province and duty of the judicial department to say what the law is.” Law&Crime has previously addressed the president’s inability to directly interfere with state actions. We have simultaneously analyzed how the president can use the persuasive power of federal money to influence state actions. Our assessment, dated March 25, is relevant. We will not republish it all here.

Bottom line: it’s legal nonsense for Trump to claim to wield the sort of police power he suggests; that’s reserved for the states. It’s also illogical for him to claim they should be on their own but that he can overrule them if he so desires.

Trump went on about his own powers later in Friday’s COVID-19 briefing.

“I have great authority if I want to use it,” Trump said. “I would rather have the states use it.”

It did not stop there.

“If I saw a state that was out of control and they didn’t have the stay-at-home policy, I would do it in a heartbeat,” Trump said of shutting things down. “I don’t know if I’ve had a bigger decision.”

He said such a move would be “totally up to the President, and it is.”

As to how he would decide when the country should reopen, Trump said, “I’m going to surround myself with the greatest minds, not only the greatest minds but the greatest minds in numerous different businesses, including the business of politics and reason, and we’re going to make a decision, and hopefully it’s going to be the right decision.  I want to get it open as soon as we can; we have to get our country open.”

He said he hoped he would make the right decision.

“When asked what metrics he would use to make his decision, Trump pointed to his forehead and said, “the metrics right here, that’s my metrics, that’s all I can do. I can listen to 35 people, but at the end, I’ve got to make a decision.  I didn’t think of it until yesterday, I said, this is a big decision.”

Trump said he was aware that localized “flare-ups” would occur if the country reopened because the “invisible enemy” was a “genius” virus.

“This is genius that we’re fighting . . . the way it’s attacked so many countries at so many angles,” Trump said.

When asked about the consequences of reopening the country, Trump said, “you open up, it could lead to death, and you’re right, but you know what, staying at home leads to death also.”

When asked by CNN’s Jim Acosta to respond to doctors who say they don’t have enough tests, masks, and ventilators to go around, Trump accused CNN of reporting fake news because governors and other doctors have told him they do have enough and that he’s doing an “unbelievable job.”

[Photo by JIM WATSON/AFP via Getty Images]

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Aaron Keller holds a juris doctor degree from the University of New Hampshire School of Law and a broadcast journalism degree from Syracuse University. He is a former anchor and executive producer for the Law&Crime Network and is now deputy editor-in-chief for the Law&Crime website. DISCLAIMER:  This website is for general informational purposes only. You should not rely on it for legal advice. Reading this site or interacting with the author via this site does not create an attorney-client relationship. This website is not a substitute for the advice of an attorney. Speak to a competent lawyer in your jurisdiction for legal advice and representation relevant to your situation.