CityWatch: Trump can’t unilaterally reopen state economies, experts say

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As President Donald Trump faces a potential standoff with governors over who has the power to reopen state economies, constitutional experts said the president’s claim that he could do it unilaterally has no merit. 

Trump went so far as to say his “ultimate authority” during a national emergency is unquestionable at a daily news briefing Monday, much to the chagrin of legal experts and lawmakers.

“It’s complete garbage,” said Charles Fried, a Harvard law professor and former solicitor general under President Ronald Reagan. “It’s so plain, and it’s been so clearly established that the president doesn’t have any emergency powers. Period.”

“When you’re talking about a public health emergency, the president has no inherent constitutional power,”

— Elizabeth Goitein, co-director of the Liberty and Security Program at the Brennan Center for Justice

The president also can’t unilaterally override the governors, whom he called mutinous in a tweet on Tuesday after forming multi-state coalitions to coordinate plans to restart businesses and relax stay-at-home orders. Trump even returned to attacking New York Gov. Andrew Cuomo, a Democrat who’s risen to become a national figure during the pandemic, by name after weeks of general goodwill between the two New Yorkers.

“Cuomo’s been calling daily, even hourly, begging for everything, most of which should have been the state’s responsibility, such as the new hospitals, beds, ventilators, etc.” he tweeted on Monday morning. “I got it all done for him, and everyone else, and now he seems to want Independence! That won’t happen!” 

Cuomo announced Monday a partnership with six governors in the Northeast and mid-Atlantic, from Massachusetts Gov. Charlie Baker, a Republican, south to Delaware Gov. John Carney, a Democrat, to create a council of health and economic development experts charged with crafting plans for reopening their interconnected economies. That effort, and a similar one on the West Coast among California, Oregon and Washington state, have apparently raised the president’s ire.

Trump said during his Monday press briefing that a president’s “authority is total,” and followed up in a tweet on Tuesday calling the governors “mutineers” for striking out on their own. 

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But Trump has no power to order states to reopen or change their policies, even in a public health emergency, explained Elizabeth Goitein, co-director of the Liberty and Security Program at the Brennan Center for Justice, a part of New York University’s School of Law. 

“Trump thinking he can just order states to reopen their businesses is wrong on two counts,” Goitein said.

For one, under the Tenth Amendment all powers not explicitly delegated to the federal government are granted to the states, including police power, or the ability to make and enforce laws related to health and public safety. Stay-at-home orders to combat the coronavirus clearly fall in that domain, she said. 

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“The federal government can only regulate in that area if those policies are intruding on federal authority,” Goitein said. The federal government could, for example, exercise its power if shelter-in-place orders interrupted interstate commerce—which they obviously already have. But in that case, it’s up to Congress to legislate, not the president, the second reason Trump got it wrong. 

“When you’re talking about a public health emergency, the president has no inherent constitutional power,” she said. “There is no inherent or explicit constitutional authority over public health.”

“The president’s only authority to act comes from Congress,” she said. 

So who does a business owner listen to if Trump’s plans to open the economy conflict with local policy? Businesses would likely choose to follow the local order under which they could still face fines or criminal penalties despite Trump’s guidelines, Goitein said.

Even during wartime, it took an act of Congress in 1950 to give President Harry Truman the power to force factories to prioritize government contracts in his role as commander in chief—a piece of legislation known as the Defense Production Act. 

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Trump’s not the first president to invoke powers he didn’t have. The Supreme Court, on at least three occasions, has thwarted presidents who’ve overstepped. 

Harvard’s Professor Fried said the most pertinent case was during the Korean War, when Truman attempted to nationalize U.S. steel mills out of concern a workers strike would jeopardize national defense. The Supreme Court ruled against him in 1952 and clarified that the president’s role as Commander in Chief did not grant him lawmaking power, even in an emergency. 

“This has already been decided,” Fried said. “That’s the end of it.”

Providing his own opinion on the matter, Cuomo said Trump’s absolute authority comment is counter to the very core of what the Founding Fathers wanted when framing the Constitution.

“We don’t have a king in this country; we didn’t want a king so we have a Constitution and we elect a president,” Cuomo said on Tuesday. “The colonies formed the federal government, the federal government didn’t create the states.”

He added, “There are laws and there are facts even in this wild political environment.”

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