In Monday’s coronavirus press briefing, President Trump said that he has “total authority” to reopen the economy, in contrast to plans being made by governors and local officials across the country to lift restrictions.
Kathleen Bergin, professor of law at Cornell Law School, is an expert in disaster and constitutional law. She says that while President Trump has authority over military and federal agency activities, states have the obvious constitutional power to authorize or lift social distancing, school and business policies.
“It's so plain and obvious it's not even debatable. Trump has no authority to ease social distancing, or to open schools or private businesses. These are matters for states to decide under their power to promote public health and welfare, a power guaranteed by the Tenth 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.
“That's not to say he's powerless. He could lift international travel restrictions, and 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. 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.”
Doug Kriner, professor in Cornell University’s Government Department and author of the book “Investigating the President: Congressional Checks on Presidential Power,” says that although President Trump has used executive privilege to protect his own interests, he is unlikely to succeed in attempting to exert power over states.
“While President Trump has been reticent to use the full powers of the presidency to combat the COVID-19 emergency, he has shown little hesitance to exploit his office’s unilateral powers to protect his own interests. In recent weeks, President Trump fired the inspector general who reported the Ukraine whistleblower report to Congress; declared he will not comply with various oversight provisions in the coronavirus relief bill; and removed the acting inspector general at the Defense Department, who would have chaired the committee ensuring vigorous oversight over the dispersal of hundreds of billions of dollars in coronavirus aid.
“On Monday, Trump claimed that he alone would decide when and how to reopen the American economy, despite the efforts at coordination among many state governors. This power grab, unlike many of his others, is unlikely to succeed. Solid support from congressional Republicans has blocked efforts to push back against Trump’s unilateral gambits, even those that threaten Congress’ core powers of oversight and control of the purse strings. However, federalism has proven a stronger bulwark against Trump’s overreach. And despite Trump’s claim of possessing ‘total authority’ to reopen the economy, states are likely to prevail again.”
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