The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
He warmed up on Twitter:
For the purpose of creating conflict and confusion, 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….
— Donald J. Trump (@realDonaldTrump) April 13, 2020
And then he really got going with the press in the room. The president's "authority is total," he explained. The "president of the United States calls the shots." The governors "can't do anything without the approval of the president." The "federal government has absolute power . . . . I have an absolute right."
Of course, none of this is right. It is so wrong that it might simply be ignored, except for the fact that Donald Trump is in fact the president of the United States, he likes to publicly assert that he has total authority to do whatever he wants, he is fond of instructing his underlings to back up his assertions with more formal statements, and his constitutional nonsense is likely to be repeated by others. He promised that "we can give you a legal brief if you want," which undoubtedly made some attorneys in the White House and the Department of Justice ponder new methods of social distancing.
But let's be clear: The governors issued their shut-down orders based on their own statutorily granted emergency powers that are in turn grounded in the constitutional police power of the states to make such regulations as might be necessary to protect the health, safety and welfare of the community. That constitutional authority of the states is independent of the federal government's. States do not need to ask permission from the president or any other federal official before they make use of that authority. Moreover, having issued orders that in their judgment are necessary to protect public health in the midst of an epidemic, governors do not need to seek the president's permission to lift those orders or to keep them in place.
When the founders met in the Philadelphia Convention, many of them were very upset by the kinds of policies being pursued by the state governments at the time, including the passage of laws that relieved debtors at the expense of their creditors and laws that required individuals to accept otherwise worthless paper money. James Madison thought that Congress needed a broad power to veto state laws so as to prevent such abuses. A majority of the convention delegates disagreed. Madison's proposal was too radical for the Federalists in Philadelphia, and it would surely have been too radical for the ratification conventions in the states. What he got instead was something much more limited, and he thought entirely inadequate—the supremacy clause, which specifies that federal law, including the Constitution, takes precedence over state law.
In practice, that means that federal courts have the authority to strike down state laws when they conflict with federal statutes or invade exclusive federal authority. None of that has anything to do with the president's authority. And, moreover, state measures to address a public health emergency fall squarely within their own core area of constitutional authority, and the courts have traditionally been deferential to states on this issue when they bump up against federal jurisdiction. When states have taken steps in the past to block the potential carriers of disease from crossing state lines, the Supreme Court has tended to uphold any reasonable quarantine measures despite the incidental interference with federal authority over interstate commerce.
It is possible that Congress could pass a new statute that would make use of federal authority to regulate interstate commerce to attempt to preempt at least some of the shutdown orders that governors have put in place. Courts might uphold federal supremacy in that context in some narrow circumstances, depending on both the federal and state policy issue. But it is not apparent that any suitable federal legislation to this effect already exists on the books, and the president has no constitutional authority of his own that might be used to second-guess how governors are exercising their constitutional and statutory authority in a domestic public health crisis.
We are used to presidents leading the way in national crises, but public health emergencies have traditionally been at the heart of state authority within the American constitutional system. For good or ill, even a nationwide epidemic primarily falls within the jurisdiction of the states. The president does not have total authority to lift the lockdown orders that the governors have put in place. In fact, he probably has no authority at all.