No, Trump Does Not Have the Power to Declare a National Stay-at-Home Order

The president also cannot reopen the country whenever he pleases.


All eyes have been on President Donald Trump in recent weeks as he pontificates on the subject of social distancing amid COVID-19. Will he "open the country back up" for business, despite public health officials insisting that a nuanced, piecemeal approach is more prudent? Or, will he issue a national stay-at-home order, mandating that everyone severely restrict mobility for the foreseeable future?

As it turns out, he can do neither. You can thank federalism.

Trump's initial goal was to release Americans from self-isolation by Easter. That promise spurred an outcry from various experts, leading Trump to reverse course and extend social distancing guidelines through the end of April. Now some are reportedly encouraging the president to require that all of America shelter in place. That also won't happen. 

"States are different," Trump said during a coronavirus briefing. "I understand that Florida issued one today. That's good. That's great. There are some states that don't have much of a problem. … You have to give a little bit of flexibility."

He's correct—states are different. And that's precisely why Americans can mostly disregard Trump's blanket proclamations.

The Constitution grants the federal government enumerated powers: it can print money, declare war, and regulate commerce, for instance. But as David French explains at The Dispatch, states maintain a great deal of sovereignty over themselves, so long as their rules don't run afoul of federal law and the state's own constitution. 

"Going all the way back to 1824, the Supreme Court has noted that states have the power to impose 'quarantine laws' and 'health laws of every description,'" he writes. "In theory, Congress may use its power under the Constitution's Commerce Clause to grant the president additional authority over commerce during a public health crisis, but it has not done that. Thus, the true executive authority of state commerce rests with governors."

That's especially true when it comes to the proposal of a national lockdown, which Trump has no obvious legal avenues to impose. 

What he does have, though, is political power.

The president could "send a much clearer signal that he wants all governors to do a lockdown on their states, to guide them about what that lockdown would require and what the standard should be," Lawrence Gostin, director of the O'Neill Institute for National and Global Health Law, told The Hill. That wouldn't be a legal act, Gostin said, but a political one.

As it so happens, all of the remaining stay-at-home-order-free states are Republican-led: Texas, Oklahoma, Utah, Wyoming, Missouri, Alabama, and South Carolina have some localized directives but nothing statewide; North Dakota, South Dakota, Nebraska, Iowa, and Arkansas have no such orders at all.

It might take some bully pulpit action from Trump to convince those governors to change course. Florida Governor Ron DeSantis (R) just issued his own stay-at-home directive on Wednesday after saying the day prior that he would do so if the president told him to. That national guidance never came, and DeSantis instead cited Trump's "demeanor the last couple of days" in deciding to move forward.

Whether or not all states should issue a stay-at-home order is a difficult question to answer. "[If] there should be a federally mandated directive for that or not, I guess that's more of a political question, but just scientifically, doesn't everybody have to be on the same page with this stuff?" Dr. Anthony Fauci, the country's top expert on infectious disease, said at a CNN town hall last night. States that don't encourage residents to self-isolate will be able to test the wisdom of that stance once the virus seeds within their borders and their hospital systems begin receiving COVID-19 patients.  

If it seems like Trump should have the power to shut down the country by fiat, consider that such a sword could cut both ways: it would likewise mean he could reopen the entire country whenever he pleases. Earlier this week, Trump was still claiming that he had the power to force states back to normal—against a wealth of expert advice—in service of restarting the economy. Those who object to such a dangerous idea can thank federalism that Trump doesn't actually have that authority, even if it means having to deal with a few straggling states.

NEXT: Broke Is the Perfect New Sitcom for Our Sudden Economic Downturn

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  1. people don’t attention to anything and number of death every day going up and up

    1. Uh…do you expect the total number of dead to go down?

      1. Lois Lane plan. spin Earth backwards real fast.

      2. Count the birth rate 9 months from now. May have more people overall.

        1. Better to have home grown people than immigrants. Population growth is an absolute necessity at this point to un-fuck the manufactured debacle.

          That said, I doubt we’ll see anything like the baby boom – which was quite a few years of growth.

          1. So illegals don’t fuck too?

    2. 10,000,000 unemployed in the last two weeks.
      There’s a number that keeps going up.

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  2. I suppose he would withhold highway funds or something.

    1. Even that would take Congress, not just the President.

  3. Turning the economy off and then turning it on again should fix any bugs.

    1. If not blow into its cartridge.

    2. “Anything mechanical, just give it a good whack!”

      1. If it moves but shouldn’t duct tape it. If it doesn’t move but should WD40 it.

        1. Don’t forget about bungee cords.

          1. Baling wire.

          2. Hose clamps.

        2. For cops:
          1. If it moves, shoot it.
          2. If it’s still moving shoot it again.
          3. Go back to 2.

    3. Works on my router.

  4. Is starting the title of an article with “No,” a Millennial thing? It’s pretty dumb.

    1. I think you’re correct. They were also copying Obama with Let Me Be Clear.

      There used to be style guides for news…but journalism is dead and we are left with crappy opinion writing.

    2. No, starting an article with no is not a smart………… dammit!

  5. He went to Jared. Let Jared decide.

  6. I need to say something.

    The stupidest thing about lc1789 is not his love for all things Trump, but the fact that he said he chooses to pay taxes voluntarily given what we know about corruption and waste in our country’s spending.

    That’s got to be the dumbest thing to come out this whole virus thing.

    1. I hardly pay any taxes personally, so I pay those voluntarily. My family company makes millions which comes in handy for company cars, homes, and trips, etc. The fact that you are scared to fight the government is clearly evident.

      unreason sock trolls are funny. They bounce from article to article ranting and raving based on what their coders tell them.

      GOod luck with being a scared little chickenshit who doesnt know his rights and never enforces them.

      1. Of course. What a surprise! Another millionaire on the internet!

        My family’s company makes billions.

        1. We make millions but we are trying to make billions. With fools who buy organic, anything is possible.

          Poor unreason staffers all cooped up while the rest of us are having fun. Heard all sorts of anecdotal stories of people ignoring all the hysteria and having fun.

          1. Indeed. Lot of horny women out there. The fear of infection is increasingly outweighed by the need for a much needed hook up.

            1. Dude seriously. The bitches showing up for my deliveries all dressed in slutty spandex are looking at my unkempt sloppy ass with lust I haven’t seen since I was half this age.

              1. That and you are automatically more attractive because your are a rebel and getting delivers plus you are not on a ventilator which you a better candidate for sex.

          2. I think this site has a higher percentage of 7 figure people than most non-financial sites.

            Of course that should be self evident – the only people that want to share everything don’t fucking have anything.

            1. “On the Internet, nobody knows you’re a dog.”

      2. So, you’re using company cars for personal stuff – but not declaring it on your taxes as a benefit-in-kind?

        Is the reason you ‘pay taxes voluntarily’ because you’re evading most of them?

        1. That’s what people with brains do.

        2. I help run a family farm. Everything is a business expense.

          Its great when trips around the USA and the World are tax write offs to get new business.

          1. Bingo. I can usually stir my Vegas trips off as I take a documentable making of time to drum up business while I’m there.

    2. “I need to say something”

      After this I assumed you were gonna come out of the closet or something. You realize you could have responded to his actual post where he made this claim?

      1. That’s not how you maximize value signaling.

        1. Ugh. Sorry I’m a slow learner on certain things.

          Does this mean we’re gonna have to start recognizing points of personal privilege around here?

          1. Chipper, being retarded and genderless, goes first.

      2. What fun is that? It’s just an observation. I guess I can respond to his post wherever, though, some people might not like it.

    3. I think the dumbest thing to come out of this is “shelter in place”. Or maybe lazy is a better word than dumb. Why use the mass shooter protocol for a virus? That phrase conjures up images of finding a desk to hide under. Call it something else FFS!

  7. The states nor the federal government have any constitutional authority to force people to stay home.

    The US Constitution sets out how the US is to deal with invasions and does not include hysteria over a Cold that is less deadly than the seasonal Flu/Cold.

    1. Funny how you never even showed up to comment on the last article that discussed in great detail the retention of plenary (or “police”) powers by the states.

      We all agree that the Feds lack any such constitutional authority. The states, on the other hand, very explicitly do have that authority.

      1. A citation would be great since you have yet to cite where states have plenary powers.

        I mean Jesus, youre such a retard because Article IV of the US Constitution chops state plenary powers at the knees. Thats just one example.

        No state has the state constitutional authority to force people to stay home, limit their movements from state to state, force out of staters to self quarantine, stop out of state residents to stop without probable cause, and declare martial law. And certainly not for a non emergency cough due to cold.

        1. The rule of law means nothing to a democrat.

      2. Only if the states’ Constitution provides for it.

    2. Yeah, mr millionaire lawyer with the millionaire family company living on your homestead with all the non-gmo homegrown food – states actually do have that power. We may not think they should, we may not want them to, but they’ve been granted that power since the start of the country.

      Hmm, you may actually be a law professor – they love to spout about how they think the law should be while pretending that it is that way.

      1. Cite it then goober.

        Cite Georgia’s state constitutional power to force people to stay home, limit who can enter the state, demand people stay 6 feet from each other, etc. You cant because the Georgia constitution gives no such powers.

        Our state constitution is mostly founded on the 1776 state constitution BTW. Its why all public offenses are misdemeanors or felonies. We have no infraction offenses. Traffic tickets are at least misdemeanors and you can demand a jury trial.

        We still have city ordinances that require every resident to have a gun.

        1. Start with Mayor of New York v. Miln, 36 U.S. 102 (1837). It got overruled in part by Edwards v. California, 314 U.S. 160 (1941), but Miln is a good place to start for how the pre-Fourteenth Amendment Supreme Court thought about state police power in light of the Tenth Amendment.

          We haven’t had a bad epidemic in a long time, so many of the powers of local government during one may seem novel to you. They wouldn’t have been to our great-grandparents, though even they wouldn’t have been dumb enough to quarantine well people.

      2. The states only have said power if their Constitution says they do.

        1. Wrong. State governments are not governments of enumerated powers, the way the federal government is. State governments have plenary power; they can do anything they aren’t prohibited (by their own or the federal constitution, or by federal law made by Congress of a federal agency acting within its constitutional authority) to do.

  8. I can’t find a quote by Trump stating that he could force the states back to normal and since Bohem didn’t post a link I assume he’s just making shit up. Seems to me he’s demonstrated a lot of respect for federalism so far.

    1. Trump said he hoped the country could begin to return to normal by Easter but he was going to re-evaluate in 14 days. That must mean he was going to force the country back to work, don’t you know?

      1. BTW, his suggestion to keep the social distancing guidelines in place until April 30th came at the end of that 14 day re-evaluation period.

        1. In trumpspeak guidelines is the same as governors using the national guard and arresting violators.

    2. “I assume he’s just making shit up.”

      This is my default for many of the writers at Reason.

    3. That may have been the case on April 3, but since then he’s seen Cuomo and others starting to talk sense about reopening the country for business, and his respect for federalism has gone out the window.

  9. >>Whether or not all states should issue a stay-at-home order is a difficult question to answer.

    not really. and no.

  10. Power and authority are two different things. Whatever you may think of the federal government’s authority to act outside the Constitution – like, say ignoring the Constitutional provision that the House needs a quorum of its members present in order to pass legislation – its power is limited only by what abuse people are willing to put up with.

    Looking at the horrific shit other nations have been willing to endure without a “give me liberty or give me death” moment, it should be obvious why Jefferson wrote the bit about “…all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed” as well as the bit about the necessity and method of watering the tree of liberty.

    1. >>> power is limited only by what abuse people are willing to put up with.

      friends I thought were barky like me have all bent the knee to the hysteria it’s mind-boggling. my dad is in Contra Costa Co., CA where 3 people have died (may they r.i.p) and has been basically under his bed for three weeks

      1. When you’re being bombarded by the media and government with stuff like “VIRUS BAD! STAY INSIDE OR DIE! MUST CLOSE DOWN WORLD UNTIL ????‍♂️!” it’s not hard to understand why so many are cowering.

        Government and Media lies finally get to everyone, and the current situation is like being in Room 101, complete with 24/7 propaganda.

        I’m not saying the virus is fake, but shutting down the world and economic suicide isn’t going to fix it. Only herd immunity can do that, and these stay at home orders are actively working against herd immunity.

        1. The frog doesnt want to give up its nice warm water bath.

          Death for liberty now or death in a pit later.

          1. A most outstanding thread. Thank you folks.

            1. +1000

  11. Presidents don’t have the power to do a lot of things, but we keep letting them get away with it.

    1. I can’t even figure out what planet any of you are on. My GOVERNOR.. the one who left my state to campaign for president on climate dogma LOCKED DOWN MY STATE and continues to issue orders about our SOCIAL INTERACTIONS being monitored. This is the police state. Defacto martial law. Our rights to work have been suspended and food in grocery stores is being rationed and you are talking about Federal orders that HAVEN’T HAPPENED. Not all of us believe in the boogeyman of Covid 19. Guys I had it; it was a cold. Even the CDC says for most people this is nothing serious and yet the panic and hysteria ensues along with the projections of dead made from air.

      1. Its tyranny. Fight back.

      2. Are we talking about Inslee?

      3. I’ve had it too. Strangest damn cold I’ve ever had.

        But no, you’re right, the healthy should go back to work, the vulnerable can self quarantine. We need to start a petition.

      4. “My GOVERNOR.. the one who left my state to campaign for president on climate dogma LOCKED DOWN MY STATE and continues to issue orders about our SOCIAL INTERACTIONS being monitored. This is the police state. Defacto martial law. Our rights to work have been suspended and food in grocery stores is being rationed and you are talking about Federal orders that HAVEN’T HAPPENED.”

        Welcome to Reason Magazine: progress uber alles

  12. But as David French explains at The Dispatch, states maintain a great deal of sovereignty over themselves, so long as their rules don’t run afoul of federal law and the state’s own constitution.

    And the President hasn’t claimed otherwise. He’s been pretty open about the fact that governors are the ones who take the lead and that the federal government is just there to provide support and guidance for state efforts, not command authority.

    Classic (T)reason straw man…write an entire article based off a false interpretation of the President’s actual position and present that as what he was saying. Billy Binion is apparently in a competition with Eric Boehm to see which can be the most dishonest writer at (T)reason Magazine.

    1. Did you miss ENB this morning?

      1. I’m no Trump supporter (nor do I hate him), but that article this morning was hacky as fuck.

  13. A few days back, a couple of us were ridiculing Binion’s bio, and now it appears he’s practically blanked it. That makes me laugh and rub my hands with glee.

    1. I’ve been mocking Boehm’s bio. What was Binion’s career highlight? Did he get a couple of freelance articles picked up by Cat Fancy?

      1. Better: Huffington!

    2. Nevermind…found his bio online. At least he worked for a defense contractor for a couple of years in a media capacity with some insight into defense issues, and has at least some overseas experience. It doesn’t make him a competent writer on any of the subjects he writes about here, but his resume is at least marginally better than Boehm (who’s done pretty much nothing).

      That said, he was also a defense contractor with apparently no previous military experience, which is usually a giant screaming red flag for “disposable college scrub who worked for cheap”.

  14. How much longer are we going to rely on models to predict future deaths and spreads? Outside of certain spots hospitalization rate don’t seem to be reaching dire situation. My go to hospital in LA apparently has 6 Covid-19 patients. The more pressing problem is lack of masks and protective gear.

    1. My ex is a nurse in northeast Ohio. She says that the hospital in which she works is extremely slow. No CV-19 patients at all. Big hospital in the suburbs of a big city.

      1. Do you know why?

  15. You know, it would be one thing if Reason had a consistent, coherent point of view … but your coverage of the pandemic is just a shitshow clusterfuck.

  16. trumph has not sense to run a country in current situation he made many mistakes

    1. So how would you run it oh all knowing one?

  17. “Dr. Anthony Fauci, the country’s top expert on infectious disease…”

    I’m in my seventh decade on this planet. In all my years the “experts” have ALWAYS been wrong; ALWAYS.

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