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Trump Promise to Override States and Reopen the Economy Is Proof He’s Constitutionally Illiterate


BETHPAGE, NEW YORK - APRIL 06: Republican Presidential Candidate Donald Trump speaks at a campaign rally on April 6, 2016 in Bethpage, New York. The rally comes ahead of the April 15 New York primary.

Now would really be a good time for Donald Trump to take five and review how the United States government works. I don’t mean that he should run out and start reading the Federalist Papers. Maybe he could consult with someone on his staff with a working high-school-level knowledge of American government.

On Monday, our commander-in-chief tweeted out some delusions of grandeur with regard to his perceived power to “open up the states.”

A more meaningless serving of word salad has hardly existed. Here we have a word salad with too much mayo which has been left out overnight from a Fourth of July picnic. This is a Fifth of July salad. It’s not even palatable.

Whatever Trump thinks “opening up the states” actually means, the legal reality is that any such authority does not rest in his itty-bitty hands. Not even a jar opener can help him here.

Let’s start with a primer on federalism. The United States has a unique form of government, in which the central federal government has certain powers while the state governments retain other powers for themselves. The system can be complex and confusing, and there are plenty of areas in which it’s unclear where federal power ends and state power begins. It would have been a lot easier to create a simpler governmental structure, but Alexander Hamilton came up with this system to appease Thomas Jefferson, so we’re stuck with it.

When questions arise about turf battles — and they often do — it’s up to the judiciary to sort it all out. In the intricacy of federalism lies its strength:  everyone gets something; no one gets too much. States have the power to decide a great many things that go on within their borders; the central national government has the power to regulate things that cross state lines and to regulate things like the national economy and immigration. It was a good – if complex—compromise between our founding fathers that had wildly different expectations for the American Experiment.

If we’re talking in broad strokes, one arena that always falls clearly within the ambit of state authority are matters of public health and safety. That’s why local cops patrol your local streets and why you report crimes to local law enforcement. It’s why it’s the state board of health inspects restaurants. What’s considered “safe” varies from state to state, and the laws reflect local differences. Individuals can bring challenges to those laws if they appear to violate the guarantees of the United States Constitution – and those challenges are decided by courts. What does not happen is the president stepping in to nullify state safety laws with which he disagrees. In matters of health and safety, the president cannot pull rank – because he simply does not outrank state officials on those matters.

Since the outbreak of the coronavirus, Trump has wasted no opportunity to publicly reveal his lack of comprehension. He’s given press conferences in which he has bragged about some imaginary presidential power to “overrule” the decisions of state governors with whom he disagrees. He’s publicly sparred with governors with whom he disagrees. And he continues attempts to create the illusion that his power exceeds that of state governors in this area.

When it comes to matters of public health and safety, it’s the governors—the chief executives of their respective states—who hold the power. What those powers are and how they work differ from state to state (which, again, was the whole point of federalism) – but with regard to pandemic prep, they tend to be fairly similar.

Governors can suspend or change certain state laws, order the closure of businesses, and impose curfews. States (through health officials, the governor, or both) have the power to order temporary quarantine and isolation. Governors can declare a “state of emergency,” and state or local officials (a board of regents, a board of education, or a school superintendent) can shut the schools.

In other words, when we’re talking about the things that theoretically would render a state “open” or “closed” – the decisions are up to the states themselves.

Okay — that’s how the turf battle between federal authority and state police power works. But there’s also another issue at play here. In order for the president to have authority to do pretty much anything, that authority must be derived from a statute enacted by Congress. The president’s direct authority in Article II of the Constitution is rather limited. He has the power to issue pardons, command the military, make appointments, and make treaties. That’s basic. Recall from Schoolhouse Rock, however, that Congress makes laws; the president just enforces them. This alleged power of Trump’s to “reopen America” would need to be derived from some source of law. His choices are: (1) the text of the Constitution  (which says nothing about the president’s authority to overrule states in matters of public health); or (2) a federal statute (which doesn’t exist). In fact, Trump could even go an ask Congress to enact such a statute in hopes that he’d win the judicial challenge which would immediately arise – and he hasn’t done that either.

Does that mean the president has no power to force states to do what he wants?

No, of course not. Again, the entire point of federalism was to create meaningful power in both the states and the federal government. The federal government does have significant power to dangle its power of the purse over uncooperative states. Trump can withhold federal funding from states which continue to keep schools and businesses closed after the president deems it time to get back to work. Let’s be serious, though. The power to withhold funding is not—as Trump claims—the same thing as the president wielding unilateral power to order states to submit to his whims. (We’ve previously analyzed how the federal government can exercise leverage over the states.)

We are mid-pandemic. This is not the time for hysteria or hyperbole. It’s both inaccurate and irresponsible for the president to start peacocking his imagined powers as plumage to attract peahens (or peabrains). But, then again, inaccurate and irresponsible is pretty much how Trump rolls. What’s worse, it appears that for all Trump’s narcissism, he doesn’t actually think any of us are paying attention to what he’s saying.

In Monday’s set of silly tweets, Trump first declares the media “incorrect” for “saying that it is the Governors decision to open up the states,” but then goes on to explain that “[a] decision by me, in conjunction with the Governors and input from others, will be made shortly!”

The inconsistent posts are not only idiotic within their own context, but they are also a logic-defying microcosm of Trump’s position since the COVID-19 crisis began. The federal government’s role, according to Trump, isn’t to be the primary source of healthcare supplies. Legally, it is. Yet Trump claims his job is merely to “supplement state and local supplies during public health emergencies.” Squaring that secondary federal role with Trump’s public declarations of infinite presidential power is patently impossible. Plus, it’s simply not what the law says. Here, the reality is that Trump has failed to exercise the laws which do give him power and while claiming desire to exercise laws which don’t exist.

Maddening as it is to bear witness to this president and his unwillingness to create even a façade of consistency, it’s even worse when understood in the context of broader politics. States’ rights to maintain their own authority has long been a keystone value of conservatives.

Hey, can someone see if Aaron Paul is around for a quick second?


[Photo by Andrew Renneisen/Getty Images.]

This is an opinion piece. The views expressed in this article are those of just the author.

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos