Donald Trump has a history of asserting powers he does not actually have, including the power to loosen state libel laws, the power to punish broadcasters who offend him, the power to unilaterally ban firearm accessories, the power to tax Mexican imports to pay for his border wall, and the power to wage war without congressional approval. The president's claim that he gets to decide when businesses should be forced to close in response to the COVID-19 epidemic and when they should be allowed to reopen clearly falls into that category.
"For the purpose of creating conflict and confusion," Trump tweeted yesterday morning, "some in the Fake News Media are saying that it is the Governors decision to open up the states, not that of the President of the United States & the Federal Government. Let it be fully understood that this is incorrect….It is the decision of the President, and for many good reasons."
Trump defended that claim during a White House press briefing that evening. "What provision in the Constitution gives the president the power to open or close state economies?" a reporter wondered. Trump's reply was less than clarifying: "Numerous provisions. We'll give you a legal brief if you want."
Later Trump added this: "The president of the United States has the authority to do what the president has the authority to do, which is very powerful. The president of the United States calls the shots."
As a general matter, the Constitution reserves to the states the power to deal with epidemics through measures such as quarantines, which is part of their broad "police power," as the Supreme Court confirmed in the landmark 1824 case Gibbons v. Ogden. Congress also has claimed a role in this area under its power to regulate interstate and foreign commerce. The Public Health Service Act, for example, empowers the secretary of health and human services to "to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession."
In theory, Congress could pass a new law dealing with epidemic-related business closures, citing its authority under the Commerce Clause. But since Congress has not done that, it is hard to see where Trump would get the power to tell states whether and when to impose or lift business closure orders.
Berkeley law professor John Yoo, an energetic champion of presidential power who nevertheless has not been shy about rebuking Trump for overstepping his, argues that even a new act of Congress could not give Trump the authority he thinks he already has. "Congress can control commerce that crosses state lines, and even prohibit wholly intrastate activity that affects the national markets," he writes in National Review. "It cannot, however, force individuals and businesses to engage in business in the first place."
Yoo cites National Federation of Independent Business v. Sibelius, the 2012 case in which the Supreme Court upheld Obamacare's individual health insurance mandate by recharacterizing it as a tax. Chief Justice John Roberts, who sided with the majority in upholding the mandate-cum-tax, rejected the idea that the Commerce Clause empowers Congress to compel economic transactions such as the purchase of health insurance, and the four dissenting justices agreed with that conclusion.
If Congress cannot force consumers to buy stuff, Yoo figures, it cannot force businesses to sell stuff by reopening their doors. He also notes that the federal government would be on its own in enforcing such an order, since the Supreme Court has ruled that Congress cannot "commandeer" state officials to achieve its policy goals.
Yoo does not directly address the question of whether Congress could use the Commerce Clause not to compel commerce but to override state bans on it, leaving businesses free to reopen if they want to do so. But he suggests such as move would be inconsistent with federalism.
"By dividing power, the Constitution creates resiliency in emergencies, but also demands cooperation between the federal and state government," Yoo writes. "The Constitution's grant of limited, enumerated powers to the national government does not include the right to regulate either public health or all business in the land….Our federal system reserves the leading role over public health to state governors."
At the same time, Yoo argues that Trump has the power to encourage, though not force, the lifting of lockdowns. "Trump could use the money appropriated by Congress to respond to the pandemic as a reward for states that end their lockdowns in May," he says. "He could send disaster relief funds, made available by the Stafford Act in time of emergency, or allocate more medical equipment and protection supplies to these states, perhaps on the ground that they risk greater harm from the virus in exchange for opening up."
Congress, if it were so inclined, could itself dangle such carrots (which also can be seen as sticks) in exchange for the loosening of state restrictions on economic activity. The Supreme Court has upheld the use of the spending power to obtain results that Congress could not directly mandate. In the 1987 case South Dakota v. Dole, for example, the Court allowed Congress to withhold federal highway funding from states that declined to raise their minimum alcohol purchase ages to 21, a policy that established a de facto national standard without officially compelling that outcome.
It nevertheless seems plain that Trump, on his own, cannot force states to lift their lockdowns until they are ready to do so. If anyone is "creating conflict and confusion" on that score, it's the president.
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