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FACT CHECK: Trump Doesn't Have The Authority To Order States To 'Reopen'

Apr 14, 2020
Originally published on April 14, 2020 4:09 pm

Updated at 4:15 p.m. ET

President Trump at a briefing Monday night made an assertion that likely would have surprised the framers of the U.S. Constitution: that as president, his authority is "total" and that he has the power to order states — which have told businesses to close and people to remain at home to limit the spread of the coronavirus — to reopen.

"The president of the United States calls the shots," Trump said. "They can't do anything without the approval of the president of the United States."

Trump said there were "numerous provisions" in the Constitution that give him that power but he didn't name any.

"When somebody's the president of the United States, the authority is total," he said.

But Trump's assertion is simply without merit or grounding in the Constitution, legal experts say.

"The President's powers are not 'total,' " Susan Low Bloch, a professor of constitutional law at Georgetown Law School, said in an email. "Our government is a government of divided powers. We call it 'separation of powers' with 'checks and balances.' "

The president has the powers articulated in Article II of the Constitution, she says. "But the Congress, the judiciary, and the states also have powers — as articulated in the rest of the Constitution (particularly in Article I, Article III, and the 10th Amendment respectively). The President is not a king. His powers are broad, but they are definitely not 'total.' "

"It's so plain and obvious it's not even debatable," added Kathleen Bergin, a professor at Cornell Law School.

"Trump has no authority to ease social distancing, or to open schools or private businesses," she said. "These are matters for states to decide under their power to promote public health and welfare, a power guaranteed by the 10th Amendment to the Constitution. Despite what he claims, no president has absolute authority over domestic policy, and he certainly has no power to override the type of measures that have been taken across the country that have proved successful in flattening the curve."

Illinois Gov. J.B. Pritzker, a Democrat, told NPR's Morning Edition Tuesday: "The reality is that the president does not have the authority to tell the states what to do in this regard. We put the executive orders in place. We're the ones who are responsible for the safety and health of the people of our states."

New York Gov. Andrew Cuomo, also a Democrat, said on MSNBC's Morning Joe: "The president basically declared himself King Trump, right? And all that annoying federal-state back and forth our Founding Fathers went through, he just disregarded that."

Cuomo vowed to challenge in court any presidential order to reopen the state against his will.

Later Tuesday, Cuomo said he doesn't want to fight with the president. And Trump himself said his decision about easing restrictions "is going to be done in conjunction with governors."

Bradley Moss, a Washington attorney who specializes in national security law, said, "Quite simply, there is no provision that gives a president 'total' authority, and particularly none in the context of a public health crisis."

Moss said the Constitution delegates most public health authorities to the states, not the federal government. The president can declare national emergencies, Moss says, which Trump did on March 13, and even designate select groups for quarantine, but none of his authorities permit him to dictate how entire states open or close.

"President Trump is gaslighting us," Moss said, "nothing more."

Cornell's Bergin said the president does have some additional powers, for instance to lift international travel restrictions and to issue directives to the military or federal agencies. And Congress could provide states with financial incentives to change course, though it's doubtful lawmakers would agree to that at this stage.

"Could Trump try to flex some muscle here? Sure," Bergin said. "But he doesn't get constitutional authority simply by claiming it. What he tries to do and what he's authorized by the Constitution to do are two different things."

Polly J. Price, a professor of law and global health at the Emory University School of Law, says the Supreme Court denied the president "this kind of authority" in a 1952 case, when it ruled against President Harry Truman, who was trying to shut down the steel industry to avert a nationwide steelworkers strike.

"The order required the secretary of commerce to seize and operate most of the steel mills. The Supreme Court struck it down as beyond the powers of the president, despite the claim that it was a matter of national security," Price said.

She added that Congress may have the authority to reopen the economy under the Constitution's Commerce Clause.

But "Congress is given this regulatory power, not the president," Price noted. "Congress could delegate to the president the determination of when a 'reopening' should occur, either regionally or nationwide. But I am not aware of any legislation that already gives the president that authority."

You can read more of our coronavirus-related fact checks here.

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