We may be on the precipice of a literal life-or-death showdown between the states and the federal government over the Coronavirus (COVID-19) pandemic. Below is our legal assessment of the current cold war of words between the White House and several governors. Ultimately, governors have the legal power to keep their states closed pursuant to the time limits of their abilities to exercise executive powers, but the federal government could make life financially unpleasant for governors who attempt to keep states closed against — or in spite of — the White House’s wishes.
The Simmering Battle
President Donald Trump on Tuesday was considering how to get Americans safely back to work faster than anticipated (or recommended) by medical experts. The goal was to “have the economy ‘opened up and just raring to go by Easter,'” the Associated Press reported. Trump later said that having Christian churches packed for Easter services would be a “beautiful timeline.”
The comments dovetail with others Trump made Tuesday on Twitter. “Our people want to return to work. They will practice Social Distancing and all else, and Seniors will be watched over protectively & lovingly. We can do two things together. THE CURE CANNOT BE WORSE (by far) THAN THE PROBLEM!” the president said.
Our people want to return to work. They will practice Social Distancing and all else, and Seniors will be watched over protectively & lovingly. We can do two things together. THE CURE CANNOT BE WORSE (by far) THAN THE PROBLEM! Congress MUST ACT NOW. We will come back strong!
— Donald J. Trump (@realDonaldTrump) March 24, 2020
The comments Tuesday expanded upon groundwork laid by the president Monday evening at a Coronavirus task force press conference. There, he called strongly for the reopening of America and teed up the chance of a back-and-forth with governors:
THE PRESIDENT: Yeah, the governors of the various states will have a lot of leeway. If we open up, and when we open up, the governors in certain states — for instance, if you go to some of the states I just mentioned, those schools are going to be open. In many cases, they’re open now. But the schools are going to be open.
In other cases — Governor Cuomo, Gavin Newsom of California — certain governors are going to maybe have a decision to make. Now, they may make a decision to keep them open in a certain part of New York and maybe in Westchester County, or wherever it may be, they’ll keep them closed. But they’re going to have leeway. We’re giving the governors a lot of leeway.
Q: Do you agree with the decision to close it several months out at this point? These governors are saying they’re expecting a peak in the next couple of months and have made the decision for the rest of the year.
THE PRESIDENT: The governors are going to make those decisions. That’s going to be up to the governors. And they’re very capable. They’ll be able to make the decisions.
Vice President Mike Pence on Monday spoke of the Trump administration’s support of state governors during a conference call: “we made it clear to the governors that this President and this administration fully supports decisions that governors are making in communities and states that are particularly impacted by the spread of the coronavirus, and we are grateful for their efforts.” Pence described federal Coronavirus efforts as “ensur[ing] the full resources of the federal government are brought to bear.” He noted that Trump approved federal funds for disaster declarations for Washington, California, and New York: “the President wanted us to make it clear that the federal government will do whatever it takes to support an effort that is locally executed, state managed, and federally supported,” Pence said.
When attempting to leave the podium Tuesday, Trump paused to respond to a question about whether he was talking to Gov. Andrew Cuomo (D-N.Y.) about quarantining people who left New York City. “We’re talking to them about it,” Trump said.
Cuomo has at times been critical of the Trump Administration’s response:
We are not willing to sacrifice 1-2% of New Yorkers.
That’s not who we are.
We will fight to save every life we can.
I am not giving up.
— Andrew Cuomo (@NYGovCuomo) March 24, 2020
We are going to fight every way we can to save every life that we can.
That’s what it means to be an American and that’s what it means to be a New Yorker. pic.twitter.com/1cREWGx9t9
— Andrew Cuomo (@NYGovCuomo) March 25, 2020
Gov. Larry Hogan (R-Md.), chairman of the National Governors Association, said on CNN that the Trump Administration’s “messaging” on the pandemic was “confusing.” Hogan ordered the closures of some businesses later than other governors — and he did so as Trump was mulling returning the country to work.
Hogan has also said that “You can’t put a timeframe on saving people’s lives.”
“We’re going to make decisions based on the scientists and the facts,” he added.
The stage is set for a potential showdown between the president, who wishes business could get back to normal, and governors who may deem it in their best interests to remain closed. Yet there are a few coercive tactics the president could take in an attempt to force states back open.
Governors Control Their States
Legally, governors can exercise inherent state power to issue executive orders or disaster declarations to deal with emergencies and disasters. These powers differ from state to state, but they more or less allow governors to alter certain state laws, suggest or order the closures of some businesses, and issue curfews. Health officials have quarantine and isolation powers which are generally exercised in conjunction with an executive order but can generally be issued separately. Actions by governors and by local officials cannot, obviously, go on forever. Statutes limit them to certain time frame. New York’s governor can declare a disaster for up to six months but can extend the order for an additional six months. Local New York officials can declare a state of emergency for 30 days but can extend it for another 30 days. Thus, even if President Trump revoked his own executive orders in an attempt to functionally reopen the country, it’s likely that some, if not many or all, state governors would continue to independently exercise their own sovereign constitutional and statutory powers to keep their states closed.
Recall the federal government has limited jurisdiction: the Tenth Amendment suggests state powers are vast, yet federal authority is limited. Accordingly, Trump’s executive orders and memorandums which deal with the Coronavirus are rather limited in scope: they’ve enacted health and human services measures; suspended the entry of immigrants not once, not twice, not three times but four times; sought respirators; sought to prevent hoarding; ensured federal funding for COVID-19 National Guard deployments under state control; allocating and distributing medical supplies; and allowed states to develop Coronavirus tests. These actions comply with the federal government’s enumerated power to tax and spend for the general welfare and its power to regulate commerce between the states under Article 1, Section 8 of the Constitution.
Federal Spending Power = Leverage
Despite this, there are ways the federal government has the legal power to suggest or, in the minds of critics, even strong-arm the states into acting certain ways. While Congress can’t directly compel states to do things like regulate radioactive waste, it can enforce civil rights voting laws upon states. While Congress also generally cannot directly commandeer state officials to do their bidding, Congress can, perhaps most importantly, earmark grant money to states with strings attached. This is the primary way the federal government whips states into shape and gets them to act certain ways. The most famous example is the decision to withhold five-percent of federal highway funds (interstate commerce) to states which did not raise their minimum drinking age to 21. Then-Chief Justice William Rehnquist wrote for the 8-2 majority:
Here Congress has offered relatively mild encouragement to the States to enact higher minimum drinking ages than they would otherwise choose. But the enactment of such laws remains the prerogative of the States not merely in theory but in fact. Even if Congress might lack the power to impose a national minimum drinking age directly, we conclude that encouragement to state action found [in the federal decision to withhold he money] is a valid use of the [federal government’s] spending power.
Congress’s commerce clause powers and the federal ability to tax and spend are broadly interpreted. If Trump is successful in convincing Congress that the “common defense and general welfare” of the United States can be best supported by keeping the states or parts of states open, Congress can basically earmark money for states which do remain open. That’s a big if, but it is the way coercive federal financial activity works. It is not likely that Trump could convince the House of Representatives — controlled presently by Democrats — to agree with this line of reasoning. What he can more easily do is demand that the Republican-controlled Senate go along with him and veto any bill which does otherwise, thus flanking the House and throwing a stymie into any aid package the Democrats are apt to suggest. The Democratic majority in the House is not strong enough to override such a veto; an override would have to be bipartisan. The political fallout of this would likely be tremendous.
Even without a Congressional earmark with concomitant strings attached, President Trump wields considerable power under federal emergency statutes, and the back and forth snipes between the Trump Administration and various governors is a symptom of a potential malady of money changing hands with serious attached caveats. Trump has in the past been accused of trying to pressure Cuomo to get New York State off his back. Trump has recently said COVID-19 funding is “a two-way street” where governors “have to treat us well also — they can’t say, ‘oh, gee, we should get this, we should get that.'” And, the Trump Administration has yet to release promised disaster funds for unemployment. Perhaps that’s because several states remain closed for business. The applicable law, the Robert T. Stafford Disaster Relief and Emergency Assistance Act, codified here, says “the President may . . . direct any Federal agency, with or without reimbursement, to utilize its authorities and the resources . . . in support of State and local emergency assistance efforts to save lives, protect property and public health and safety, and lessen or avert the threat of a catastrophe” (emphasis ours). That highly permissive language gives the president power over the federal purse in times of disaster; thus, Trump has millions of dollars in leverage. The amount of federal assistance must legally be substantial when it is extended — “not less than 75 percent of the eligible costs.” (There’s a statutory cap of $5 million, but it can be lifted.) The question is whether the president will be extending the assistance in the first place.
What It Means
Sure, the governors can go it alone: they can stay closed pursuant to the broad powers granted to the states. By doing so, they may be forced to give up federal money. The question for the governors right now is whether they can afford it. The question for all politicians is how many deaths they may be willing to politically stomach and how much they are willing to spend to prevent the numbers from rising. The question for Americans is whether they will politically reward politicians who do not see to the care of people unlike themselves in faraway yet hard-hit places. Americans supported the Bush-funded recovery of hard-hit places like New York City and Washington, D.C., after 9/11. Will the Coronavirus result in an unbridgeable divide — or not?
[Photo by Tasos Katopodis/Getty Images.]
[Editor’s note: this piece has been updated.]
Follow Law&Crime:
