Total Authority


President Trump likes to make bold, unqualified, and outrageously incorrect claims about the scope of his presidential authority. He did it again at yesterday's press briefing.

He warmed up on Twitter:

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.

NEXT: We Are All Federalists Now

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  1. The fascists here are loving it, ready to give everything to their dear leader.

    1. Last I heard, Cuomo was crying about being broke.

      He thinks he’s going to get Federal Money without Federal Strings attached? No, he can do what Trump wants or not get Trump’s money. Grove City and Hillsdale College have chosen not to accept Federal money, and Cuomo can do likewise, but he’s crying about being broke…

      1. That’s not how this works. That is not how any of this works.

        And Cuomo is doing what real leaders do. Lead. And not act like a spoiled child when asked softball questions.

        1. “Former Centers for Disease Control and Prevention (CDC) Director Tom Frieden said in a new interview that implementing social distancing measures two weeks earlier could have reduced New York’s coronavirus death toll up to 80 percent.
          “Flu was coming down, and then you saw this new ominous spike. And it was COVID. And it was spreading widely in New York City before anyone knew it,” Frieden, who also served as commissioner of New York City’s Health Department, told The New York Times. “You have to move really fast. Hours and days. Not weeks. Once it gets a head of steam, there is no way to stop it.”
          Taking steps such as closing schools, nonessential stores and restaurants could have reduced mortality between 50 and 80 percent, Frieden said.
          Both the city and the state implemented such measures several weeks after orders in major cities in California and Washington state, two early epicenters of the virus in the U.S.”


      2. Are you adopting Trump’s affectation (random capitalization) as a sign of solidarity with America’s illiterates?

      3. Trump’s money? Are you calling money in the federal treasury Trump’s money?

      4. No, he can do what Trump wants or not get Trump’s money.

        Whose money?

  2. You have heard of King Canute, right ?

    That great King who commanded the tide to stop coming in. To demonstrate to his courtiers that he did not have that power.

    Trump is playing his usual game here. Using the frothing media to make his case for him.

    1. Demonstrating to the economically suffering masses that he really really cares about them and is trying to move Heaven and Earth to help them. And blockages or delays are not his fault, they are the fault of Democrats and judges. They must be, mustn’t they ? Since we’re now going to get wall to wall “analysis” that it’s not within Trump’s powers.

    2. Encouraging his enemies to shout loudly that he has no powers to order Governors and States about. Consequently he cannot be to blame for any slowness in ordering a shutdown in the first place. Not my fault.

    He’s just positioning hiself for the next stage in the game, where the Dems and the media beat the drum forever that he can’t open things up. And so, when they wake up, they discover that they’ve imprinted in the minds of the voting public that :

    Trump is to blame neither for a slow reaction in imposing curbs, nor for a slow reaction in lifting them.

    The penny will probably drop on the media in about a month, by which time the message Trump wants the public to believe will have been set in concrete by the likes of CNN. They never learn.

    1. Puppets dancing on Trump strings.

      Hope the ratings, clicks and book deals are worth it to them.

      1. The puppetmaster defense is one employed by failed trolls when they get owned too hard.

        1. Trump is indeed a bad puppet master but he manipulates the press to do what he wants anyways.

          The fall for his transparent and obvious bait every time.

          1. It’s not really a defense, though – ‘I acted like an idiot and you treated me like an idiot haw haw haw’ does not absolve one of idiocy.

            1. Not trying to absolve anyone of anything.

              Who is the greater idiot though? The person laying the bait or the person taking it?

    2. That’s moronic. Trump had the power to do all sorts of things, including likely the power to issue a national shut-down order. He just doesn’t have the power to force states to impose or lift their own shut-down orders.

      1. If he can’t issue a national open-up order, how can he issue a national shutdown order?

        1. It is an interesting legal question whether he can issue a national shutdown order. He clearly could lift one if he issued one. He just can’t force states to issue or lift their own. Moreover, no government entity, with limited exceptions, can force private companies to open or return to work.

          1. I’m too young to remember, but didn’t Nixon impose price and wage controls? How’d he do that?

            And as to ordering people to return to work — he can cut off the Federal funding of unemployment and welfare benefits and that’d be a damn big incentive to returning to work….

            1. You apparently don’t understand how unemployment insurance works.

            2. he can cut off the Federal funding of unemployment and welfare benefits

              He can?

          2. Politically, many squeaking he has no power to force things open last week were screaming what a demon incompetent he was for not ordering a nationwide closure.

            In both cases, not just one, that’s too much power.

            1. Politically, leading and coordinating is not the same thing as…whatever this is.

        2. Issuing national shutdown orders is kind of like calling forth spirits from the vasty deep; Trump can do it, as can any man.

          But will they shutdown when you issue the order?

          1. Not sure what your point is. If he has the authority to issue a national shutdown order, he would have the power to enforce it. He would also have the informal powers of the bully pulpit, persuasion, and leadership, but I could see why you might have overlooked those powers right now.

            1. A lot of states are relying on their National Guards — and he can take those over with just a signature.

              Without its National Guard, would a state have the manpower to enforce anything?

              1. Yes. I don’t think the National Guard has been involved in enforcement anywhere.

                  1. Yes, I saw after I posted that Rhode Island was an exception.

              2. Ed, I think that is at least a bit ambiguous. Constitutionally, it is Congress which has the power to federalize state militias. I don’t want to get into a lot of back and forth over what a militia is, and how the National Guard isn’t one. The back and forth is part of the ambiguity.

                Notably, however, and another part of the ambiguity, is that in 2006 Congress passed a law delegating to the President a power to call up the National Guard for federal service. The very fact that the law was passed suggests that the consensus at the time was that under the Constitution, Congress had that power, not the President.

                That is another instance, among too many, of Congress delegating it’s own constitutionally prescribed powers to the executive. As a practical matter, when delegations of that sort were made, Congress presumed it had the power to reclaim those delegated powers by joint action. But not so fast. Afterward, the Supreme Court in action of its own made that more difficult, essentially empowering the President to veto that kind of action by Congress to get back what the Constitution says is rightfully theirs. So instead of simple joint action, now Congress has to make a law, and get over a super-majority bar to get its own power back.

                I think the Supreme Court decided that wrongly. Presumably Trump supporters think it is great for now, but will turn wrong when a Democrat occupies the White House. This issue is right up there on the list of topics where concern for protecting institutional structures ought to take precedence over party politics.

                1. Mark Levine has spent an hour explaining how FDR gave Trump this power.

        3. He has statutory authority to declare national emergencies. He does not have statutory authority to repeal emergencies declared by states.

          1. Yeah; the distinction seems pretty self-evident. Not sure why Trump (and some posters here) are missing the difference between a presidential shutdown order (even assuming its legality) and shutdown orders coming from individual state governors. Absolutely no one would be surprised that a president can rescind a shutdown order that he himself ordered earlier. But of course a president has no authority to overrule a state-specific shutdown order that came from a governor. Federalism, and all that. (But, having said that; I do agree that it is not 100% cut-and-dried…presidents can and have overruled state actors before. Racist governors trying to prevent school desegregation, etc.)

            1. What weight would his shutdown order carry?

              You people are talking out of both sides of your mouths.

              1. The weight of whichever statute he invokes for the authority. It could be the NEA. It could be the DPA. It could be the Public Health Cat. You can go read the Proclamation yourself.

                1. So he can shut stuff down but can’t open that stuff back up?

              2. I don’t know if he has that power, but sure as hell shouldn’t. This will be disappointing to a party that feared him as a dictator but have spent the past two weeks screetching how he should become one to order the nation shut down. You have heard it — some governors haven’t and it’s up to the feds to do it.

                Now he claims it and, in the 34,768th example of raw contrarianism, they declare it dangerous and unwarranted.

                Well, the stopped clock was right, briefly.

            2. But, having said that; I do agree that it is not 100% cut-and-dried…presidents can and have overruled state actors before. Racist governors trying to prevent school desegregation, etc.

              That’s enforcing a federal court order — which of course the president can do — not just acting on his own whim.

      2. That’s moronic. Trump had the power to do all sorts of things, including likely the power to issue a national shut-down order. He just doesn’t have the power to force states to impose or lift their own shut-down orders.

        🙂 You still don’t get it.

        What you just wrote is complicated.

        “all sorts of things” – what things ?

        “including likely the power” – “likely” eh ? That’s not very specific.

        ” national shut-down order…. their own shut-down orders” Yup, federalism in twenty minutes. Everybody’s favorite bedtime reading.

        So in a month’s time, you and CNN are going to unpack all those subtle nuances to dent Trump’s concrete wall, lovingly constructed by CNN, CBS, ABC etc :

        “Trump doesn’t have the power.”

        1. I think Trump’s own actions, inactions, and words are more damaging than you think. I guess we will see.

        2. Lee, you make an interesting argument. It persuades me as a matter of logic. But I doubt that the logical arena is where Trump’s base wants any such controversy evaluated. What they want are cage match tests of brute power, where Trump wins. When this plays out, if Trump decides on a power play against a group of governors, and Trump does not prevail, that will not be a good look for Trump.

          Trump will undoubtedly figure that out. Which ought to concern everyone. What Trump might try to be sure he does win could be astounding. This is not a good time for astounding. Especially, astounding the Constitution would not be good.

          1. If President Trump says the economy should be open and a dozen Democrat governors keep their economies shutdown, you think that would look bad on President Trump?

            1. Well, it would totally depend on what happens next, right?
              If those states stay closed, and some of the *other* states suffer a spike in new cases and in new deaths, then those closed states will look brilliant (or, their governors will), and Trump will look awful. Which he should–he was wrong, after all. But, if the above happens and the open states regain their economies faster AND there is no spike in new infections…then Trump will benefit. Which he should–he was right, after all.

      3. Your starting premise is wrong. Trump did not (and does not) have the power to issue a national shut-down order. Congress could, theoretically, give him that power but they have not.

        If Trump did have that power, the Supremacy Clause would probably let him preempt any state shut-downs. But since he doesn’t have that power, he can’t do anything about the states either.

        1. I’m not sure about this. If Congress did give him this power, he would certainly be able to preempt a state’s *refusal* to order a shutdown. And, almost certainly–if a state has a very weak type of shutdown procedure–to trump that weak order, to raise the shutdown conditions to match the federal order. But I’m not convinced that this would give any president the authority to overrule a state’s own decision to shut down.

          Trump rambling response to totally legitimate questions yesterday–that asked him what the source of his authority was . . . did not inspire confidence. Paraphrasing Trump: “The president has the authority to do . . . mumble mumble . . . what the president has the authority to do.” While that tautology was, technically, correct, I think Trump would have been better served by a response that used English words placed into an order that conveyed the sense that the speaker knew what the hell he was talking about.

          1. I think Trump would have been better served by a response that used English words placed into an order that conveyed the sense that the speaker knew what the hell he was talking about.

            And I think that Gal Gadot should divorce her husband and marry me. My scenario is more plausible.

    3. “While God created the Earth, the Dutch created the Netherlands”

      Yes, I’ve heard of King Canute, but the Dutch had a few kings (and whatever they had for a government in 1958) who *prevented* the tide from coming in…..

      Something like 28% of that country is below sea level.

    4. He’s just positioning himself for the next stage in the game

      I find the notion that Trump acts strategically, rather than based on his childish instincts, to be laughable.

      1. ADHD does not mean stupid — he got elected President, didn’t he?
        I’d say he is a whole lot more strategic than you realize.

        1. He got elected President because the Democrats ran an unlikable candidate and the Republicans sold out their values decades ago. He is also a useful tool that can be easily manipulated. See McConnell

          That doesn’t make him “smart” or “strategic”. Everything about him is tactical. He can’t think more than four minutes ahead of any topic.

          1. Everything about him is tactical as a child is tactical.

          2. I’ve always felt he almost eked out a loss when any other Republican would have had clear sailing. Indeed I thought he was this election’s Ross Perot, trying to help the Democrats win when they stood no chance.

        2. He’s got five honorary doctorates.

          He’s a self-made real-estate billionaire.

          He’s a TV star.

          He’s married to a model.

          He’s banged Playboy Bunnies and Porn Stars.

          He’s President of the United States.

          He won an election where we was nearly a 10:1 underdog.

          He created the US Space Force.

          But somehow people think he’s stupid. It’s bizarre.

          1. “He’s banged Playboy Bunnies and Porn Stars.”

            And we all know you have to be a genius to bang playboy bunnies and porn stars. Great point.

            1. And we all know you have to be a genius to bang playboy bunnies and porn stars

              Have you????

          2. Honorary doctorates don’t mean much, especially since one was revoked and two are from Liberty University.

            He’s not by any means self-made, and it’s not proven that he’s a billionaire, and he made most of what he did make by stiffing creditors and evading taxes.

            I’ll leave the rest.

            1. Bernard,
              No sour grapes. After all, every single one of us got gifts of hundreds of millions of dollars from our daddy (in today’s dollars), and look how few of us increased those massive gifts into billions of dollars.

          3. That is quite a list.

            These are your peeps, Conspirators. You have my condolences.

            One thing the Conspiracy has done is to show me what I missed — the level of argument, for example — by not attending an unranked, backwater, conservative-controlled school with sketchy accreditation.

            1. That’s the level of argument among the Conspiracy’s conservative commentariat, not the level of argument among the Conspirators.

              1. But Kirkland, note well, it is the level of argument among a tranche of the conservative commentariat which is undoubtedly composed of elite representatives of its kind.

                1. I expect the Conspirators to lose the public debates, because their ideas are lacking; I do not, however, expect them (not nearly) to present arguments as rubes and anti-social dullards.

          4. He’s a self-made real-estate billionaire.

            This is literally the exact opposite of true.

        3. ADHD is not stupid, let me second that. For example, any biography of Thomas Edison shows that years before ADHD existed as a diagnosis, the man very likely had it, yet his inability to sit still and that he wasn’t drugged up with ritalin, meant that he put that energy and intelligence to good use.

        4. Trump didn’t get elected because he was able to do anything other candidates couldn’t, but because he was willing to do things any decent person wouldn’t, i.e., shamelessly model the most sadistically predatory, self-aggrandizing behavior, all in the service of signaling to the GOP’s angriest, most tribal factions that their own dark impulses weren’t the type of defects that people who humbly aspire to moral self-improvement confess and atone for before God, but legitimate, even virtuous weapons in a holy war against half the country they hate and feel aggrieved by.

          Congratulations. Never in my life have I seen a more transparently Faustian bargain.

        5. ADHD does not mean stupid — he got elected President, didn’t he?

          That’s the right passive tense, yes. He did poorly in the election — getting a sad 46% of the vote, less than Romney had done 4 years earlier, against a much stronger opponent. But at the end of the day the electoral college voted for him.

          But in any case, since when is the presidential election, or any other, an IQ test? You might as well argue that whoever the heavyweight champion in boxing is must be smart, because he’s got the title.

          1. That’s silly, while a level of “fight IQ” as they call it in boxing is necessary, intelligence doesn’t count as much in boxing as politics. That’s a bad comparison. There is a reason why so many boxers end up broke and taken advantage of after their fighting years, the profession selects on different traits than intelligence.

            As for winning the presidency as a measure of intelligence, it’s *A* measure, but just one. Personally, I take the Scott Adams approach to Trump’s intelligence. He’s not the smartest or savviest or whatever, but he’s slightly above average in a multitude of skillsets (like personal charisma, reading a crowd, policy analysis, etc.). He has a “talent stack”. That said, he’s been remarkably shitty in the selection of subordinates, and that is a measure of how he’s not some sort of genius.

            1. He’s slightly above the average coniferous tree in the skill of “policy analysis.”

    5. 1. The President lies to the public about his constitutional power, to induce people who would correct him into doing so, just to demonstrate to people who don’t know the President is lying that he really cares. And this is the charitable explanation for the President’s lies?

      Is it even possible, at this point, for the President to do or say some inane bullshit and for you to conclude that it was just the President saying asinine nonsense randomly, rather than attributing to him some long-term, brilliant strategic thinking? And if you are incapable of seeing his ramblings as ramblings, when are you going to get offended that he keeps up the subterfuge? After all, you’re the target of it. He thinks you’re that fucking dumb.

      2. The theory is ludicrous. There is no counter to a self-fulfilling prophecy. Instead, we just call it “being wrong”. But even if this wasn’t laughable, it’s premises are filled with holes. First, it’s at war with 1. How can the President project power if his goal all along is to concede weakness? Second, it assumes he has supporters who need an excuse to hold the President blameless for his COVID response. Finally, as far as predictions go, count me in the camp who do not think the President will be holding a press conference in the future conceding that he was wrong and that the media and social commenters bested his understanding of constitutional law. To the extent he does back off, he’ll do so quietly by agreeing with governors’ responses.

      1. To his followers Trump Can Never Fail. He can only be failed.

        If Trump says something stupid it’s a clever trick. If Trump lies it’s in a noble cause, or else some deep strategy.

        Whatever goes wrong is someone else’s fault – the experts, the deep state, the bureaucracy, Obama, the media, the Mexicans, FDR, etc.

        Whatever goes right is to Trump’s Everlasting Credit.

        I’m surprised you haven’t figured that out by now.

        1. Just be thankful you and your children get to compete economically with the Trump base, and that Trump’s followers will be replaced in the natural course of American progress.

      2. A commenter from Idaho, responding to an NYT column about Trump’s wild press conference, put it more or less like this: “Trump served up a piece of tripe so stinky it would knock a buzzard off a gut wagon.”

  3. I’ve said it before: Since we’re in the middle of a genuine crisis, maybe electing a self-absorbed narcissist who thinks everything isn’t about him wasn’t such a great idea after all.

    1. ” self-absorbed narcissist ”

      Yes, that is why Clinton lost.

      1. No, the electoral college is why Clinton lost.

        1. No, Clinton is why Clinton lost.

          1. Right, because she is a self-absorbed narcissist.

            1. Among other bad things.

            2. She is a self-absorbed narcissist who actually cares about governing and is more qualified to do so than a twice divorced failed businessman with a reality tv show.

              1. She cares about power. She got elected to the Senate because her husband boinked the help. Her sole accomplishment.

                She ran the two worst campaigns in US history. She lost to a twice divorced failed businessman with a reality tv show after all.

                1. Agreed, but why is Clinton’s weakness as a candidate a point in Trump’s favor? Why even bring Clinton up?

          2. As a Democrat, I hated that she was my party’s nominee. Nevertheless, with all the bad things to be said about her (plus a couple of pieces of bad luck, like the Comey letter), she still got more votes than Trump did. So, the electoral college is why Clinton lost.

            1. Trump got more of the votes that mattered. Every elected president won because of the electoral college.

              1. True. Most of our past presidents also got more votes nationwide than did their opponents. In terms of winning the actual election: irrelevant. In terms of being able to legitimately claim some sort of popular mandate: quite relevant.

            2. Krychek_2, saying that “the electoral college is why Clinton lost” is like saying that someone lost a chess game even though they captured more pieces than their opponent who check-mated them, because – rules. Rules that were known from the outset, indeed, in the case of the U.S., for more than 200 years. Does the loser of the chess game have a legitimate claim to victory because they had captured more pieces? No. And neither does Clinton have a claim to victory because she collected more popular votes.

              Is it even necessary to state that the popular vote is meaningless, legally and constitutionally? If no one tallied it, it would not materially affect the outcome of the election.

              1. ThePublius, I don’t think anyone, and certainly not me, disputes that those are what the rules are. The question is whether that is what the rules should be.

                If the rules were that the Democrats would govern in perpetuity, those would be the rules, but I doubt very much that you would consider them to be just rules.

        2. “electoral college is why Clinton lost”

          No, winning the electoral college is the election.

          You win the World Series if you win 4 games. If the other team scores more over all runs, it still loses.

          Popular vote is runs, electoral college is games.

          1. And someone didn’t bother to campaign in a few key states, and that’s part of why she didn’t win those states….

          2. Bob, if you want to make a sports analogy, the more appropriate one would be that the electoral college is when one Super Bowl team starts out with a free touchdown.

            1. Dumb analogy.

              1. Why is that a dumb analogy?

                1. Neither party has an advantage in the electoral college.

                  Trump won Pennslyvania and Michigan. No GOP had won either since 1988.

                  Looks like Wisconsin has always voted for the electoral college winner.

                  Dems thought they had a “Blue Wall”. Not so.

                2. Because of the “blue wall” that is, states that until just recently were Democrat strongholds, the Dems started with free touchdowns: CA, NY, and IL. The GOP has TX and a ton of flyover country with like, 3 Electoral College votes each. It was not an even matchup. A Republican candidate has an uphill climb, and has to win FL and OH to even have a prayer. If they don’t, they lose like Romney did to Obama.

                  Hillary presumed WI would go blue. Last time it didn’t was Reagan, so she didn’t campaign there. But she lost by just a few thousand votes…same with PA. Part of the reliable blue wall.

                3. Look at how eager people are to go over well-trod ground about the electoral college rather than continuing to insist Trump pooped his pants on purpose.

                  1. Who brought up the EC first?

                    1. Who brought up Hillary first?

                    2. Who resorted to silly insults about Trump and narcissism, which applies to every politician, particularly Hillary AND Trump, prompting said reply?

                      See where I’m going here? Your usual shtick won’t work this time.

                    3. At least that was on-topic.

                    4. It was a silly red herring, you admit it by saying it was “bait” why he threw out the chum.

                      Learn to live by your own rules.

                    5. Who resorted to silly insults about Trump and narcissism, which applies to every politician, particularly Hillary AND Trump, prompting said reply?

                      No, it doesn’t apply to every politician.

                      No other politician — not one — would be treating press briefings on a pandemic as campaign commercials.

                  2. Sarcastro, you’re right, I should not have taken that bait. Just a reminder that this particular sidetrack started when I responded to Bob’s comment that Hillary lost because she was a narcissist. She may well be, but that’s not why she lost. She lost because of the electoral college.

                    1. You brought up first, thus it wasn’t bait. That’s not how it works. I’m sorry you feel Hillary was robbed by the system, but both parties knew the rules before they started the game.

                      It’s kinda funny, the Dems were fans of the EC in general due to the blue wall until 2016, ill feelings about 2000 aside. Expect that if say, in ten years, if the demographics support a national vote for the GOP, folks will switch sides on this issue.

                    2. mad_kalak, I did not bring it up first. The point of this thread is Trump’s handling of the coronavirus crisis. I said that maybe having a narcissist in charge during a crisis wasn’t such a great idea, which is on-topic for a thread about Trump’s handling of it. Bob then responded “But what about Hillary”, which was NOT on topic for a thread about Trump’s handling of it. Sarcastro is right; even if Hillary is just as terrible as the right makes her out to be and a thousand times worse, that has nothing whatsoever to do with Trump being an incompetent, self-absorbed dumpster fire of a president who is more concerned about getting adulation than he is about solving our national problems.

                      Which in retrospect is how I should have responded to Bob: That whatever flaws Hillary has, they are entirely beside the point since she’s not in charge, he is, and he’s driving us off a cliff.

                      As to your final comment, I’m active in Democratic Party politics at the national level and I don’t think it’s accurate that Democrats ever were fans of the EC. I think Democrats are resigned to the EC because we understand it’s a political reality, at least for the foreseeable future, and we had managed to build a blue wall that mostly held until 2016. But Democrats have been introducing constitutional amendments since the 1960s to get rid of the EC.

                    3. Krychek, when folks say that Trump is incompetent and self-absorbed , etc. etc., it is certainly a fair retort, especially when his last opponent in the last election who almost would be in his place, is just as bad, if not worse. By God, the country is split about evenly on this topic. .

                      As for your final comment, I respect your experience. My perception from reading on the topic has been the opposite, but I could be misinterpreting a type of comfortable satisfaction with the Blue Wall as support for the EC.

                    4. mad_kalak, suppose one of my subordinates at work grandly screws up a project, and when I confront him about it, his response is “Oh, but the guy you almost hired would have been just as bad.” Not only would I not care that someone else is also incompetent; I would see that comment as a total and complete lack of taking responsibility, and I might well fire him for that comment alone.

                    5. I guess my answer, is that in a typical Trump supporters mind, he’s not screwed things up, but is doing okay or great, all things considered.

                      By way of comparison, the foreign policy situation in Libya and Syria and the Iraq pull out could have been done better, but Obama supporters thought he was doing okay or great, all things considered.

                      I say that not to introduce another topic, but just to note how, without objective criteria for success, how a president is doing is subjectively filtered by your prior support of the politician. In my opinion, that’s why America is lucky to have a huge swatch of voters who don’t care or pay attention to politics, I think they are better judges than you and me when there are not objective criteria for success.

                    6. I agree that someone’s presuppositions tend to influence, not just their perceptions of how a given politician is doing, but their approach to political questions as well. For example, the first time a Republican wins the popular vote and then loses the electoral college, Mitch McConnell will not be able to schedule a vote quickly enough on a constitutional amendment to abolish the electoral college. If I had magical powers, I might be tempted to conjure up that result just for the amusement value of watching all the side-switching that would immediately follow.

                      That said though, there are objective measurements for whether someone is doing a good job, just as there are objective arguments for and against the electoral college. Trump spent the first month of the crisis claiming that it was a big nothing that would soon blow over on its own (or, alternatively, that it was a Democratic Party hoax to make him look bad). When the death toll rose to the point that he could no longer ignore it, he then spent another month ignoring the experts when he wasn’t actively cutting their legs out from under them. It’s the state governors — Cuomo, Murphy, Inslee and Newsom, Democrats all — who are doing the actual leading.

                      And if you want to do a “but Hillary”, for all the bad things to be said about her, and there are many, she at least listens to advice. She would not have spent the first two months of the crisis sitting on her hands.

                4. “Why is that a dumb analogy?”

                  Because the reality is more like a 10-point advantage.

        3. Don’t take the bait on this one, Krychek!

      2. But Clinton is some lame-ass nonsense at this point.

  4. It’s too funny, a month ago everyone was crying because he wasn’t using total authority, then when he claims it everyone all of a sudden becomes 10th Amendment federalists.

    It’s so hilarious and sad.

    My guess is President Trump is setting up these moron reactionary Democrat governors to take the blame for their state economies.

    1. Yes, because those pissant state economies of New York, California, New Jersey, Michigan, Illinois, and Washington will have no impact outside of those states.

      1. Yes, because those pissant state economies of New York, California, New Jersey, Michigan, Illinois, and Washington will have no impact outside of those states.

        Truman was re-elected in 1948 by running against a do-nothing Congress — Trump likely will be running against a bunch of petty tyrants.

        1. Just not enough uneducated bigots left in America to position Trump for another Electoral College trick shot.

    2. Is it possible he has the authority to do some things and not others?

      I guess that never occurred to you.

  5. To play devil’s advocate here, wouldn’t the last 80-odd years of Commerce Clause cases make this a plausibly constitutional assertion of power? If home-grown crops (Wickard, Raich) and robbery of businesses (Hobbs Act) are within the reach of federal regulation, then why not orders to close (or open) businesses? This isn’t regulating purely intra-state noneconomic activity like in Lopez and Morrison. And once the federal government can regulate it, of course, it preempts state law and governors’ orders.

    Don’t get me wrong, I’d love to see some solid 10th Amendment caselaw come out of this, and it’s great to see people on both sides of the aisle recognize the value of federalism, but it does not appear as obviously wrong re current caselaw as is being asserted here. And courts looking at this are going to worry about having to thread the needle to avoid holding a lot of statutes unconstitutional.

    1. Is Trump relying on a statute?

      1. Eisenhower and Kennedy relied on ones authorizing them to Federalize the Arkansas and Alabama National Guards, and then order them to oppose their respective Governors. QED, Trump definitely has that authority….

        Remember George Wallace on the schoolhouse steps?

        1. The Guard was federalized to avoid any interference with enforcement of federal court orders.

          Eisenhower sent regular army troops to Little Rock. JFK sent US Marshals to Alabama.

          1. You are right about Little Rock, but I thought that someone had done it.

            In any case, Trump can Federalize the Guard and doesn’t need a reason.

            1. In any case, Trump can Federalize the Guard and doesn’t need a reason.

              Assuming for the sake of argument that this is true — your track record does not promote confidence — what does it have to do with the topic?

              Is he going to order the Guard to start operating schools and restaurants and stores?

        2. WTF do you think the National Guard is going to do, you moron?

          March people to work at gunpoint? Force businesses to reopen and hire workers even if they have no customers?

          1. WTF do you think the National Guard is going to do

            Stop obeying the Governor.
            If ordered to, arrest the Governor — although I doubt that would be necessary.

            1. The Volokh Conspiracy — exposing clinger fantasies to a wider audience since 2002.

      2. To say that Trump is “relying” on anything is a stretch. He literally has no idea what he is talking about or seems to care.

    2. Quoting from the OP:

      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

  6. There is one problem — what if Congress already GAVE the President the power to overrule the states?

    From 1949 to 1989 — for 50 years — we lived under the fear of Soviet Nukes and Congress gave the President a *lot* of “emergency” powers. The PATRIOT Act expanded this, and then Obama vastly expanded these powers even further into things that folks were somewhat uneasy about at the time — e.g. the power to seize private food and fuel supplies.

    One he declared a “National Emergency”, Trump acquired an incredible array of Congress-granted powers. Congressionally granted under not only the “necessary and proper” and “commerce” clauses, but the power to “provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.”

    This *is* an invasion, but a lot of laws were written for a nuked country, the FED reportedly even had stockpiles of cash stashed around to restart the economy, and while one might argue that such laws are unconstitutional, they do exist.

    1. Generally invoking ‘I’ll bet this power is in there somewhere’ isn’t really going to convince anyone.

      1. You apparently haven’t spent much time in America’s southern and rural stretches.

      2. Wanna bet?

        /4 liberal justices and Roberts under a Democrat administration

        1. You just underscore the contrast. The Taxing Power is a thing. You may not like how it’s interpreted, but it’s a thing.

          ‘Congress gave the President a *lot* of “emergency” powers’ is not a thing.

          1. As long as the constitution is what 5 people say it is … it does NOT matter

            1. Better to have it mean what you think it means, eh?

          2. I didn’t know you could tax not doing a thing.

            But I guess you can in Liberal Crazy Land.

            1. Apparently, the taxing power encompasses more actions than just levying taxes on a specific activity.

              Your appeals to incredulity are not evidence, just stamping your foot.

  7. The governors issued their shut-down orders based on their own statutorily granted emergency powers

    Well, they certainly purported to do so. I’d want to read the fine print before agreeing that they were actually given the authority to, for example, tell stores to rope off aisles with non-essential products.

    1. I’d want to read the fine print before agreei

      Nah; don’t bother. Easier to just post comments on the VC.

  8. For the sake of argument, if Trump and the Federal government decided to overrule the individual governors in regards to the shutdown, and actually put their minds to it, they’d generally have their way. And they could accomplish this through any of several dozen different methods.

    For example, the President could order through the DPA, any of several dozen difference industries to operate. Governor’s attempts to shut this down would fail due to the supremacy clause.

    Then, if the entire federal government was behind Trump, if needed, several laws could be passed that would be extremely influential in “convincing” the states to reopen. With a variety of sticks and carrots.

    Court cases could begin to be launched, in regards to interstate commerce, and freedom of movement.

    The short answer is, if the entire federal government decided to re-open a state, the state would almost certainly end up reopening.

    1. ” if the entire federal government decided to re-open a state ”

      What would incline the House of Representatives to flatter Trump in this manner or matter?

      1. That’s a different question. But Trump’s tweet was.

        ” 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….”

        The House is included in the Federal government.

    2. Damn, your right — the Defense Production Act!

      If it includes transportation/distribution, he can order stores reopened, etc.

    3. The President has already invoked the DPA. He initially said he wouldn’t. Then Speaker Pelosi told him to do it. He tried to negotiate with the industry for a solution that didn’t involve the DPA, but he couldn’t close the deal. So then he invoked the DPA this month. Of course he did it only for for ventilators and masks. I’m not aware of any governor seeking to shut down ventilator and mask production. If the President declares that strip clubs are an essential service under the DPA, I suspect he’s not going to end up getting his way, regardless of your views about the breadth of the DPA.

      1. The President has invoked the DPA in a very limited manner. In many ways, its one of the things I appreciate about Trump and the Trump administration. His actions in the current crisis haven’t been an amazing overreach of federal power, that politicians of other parties may have undertaken.

        That restraint and limitation politicians of that alternate party at the State Level have been…rather lesser.

        That being said, the DPA could be used for far more extensive purposes, if so required. Strip Clubs might be a stretch. But Civil Engineering and Highway Construction? The DPA could easily order that re-opened. Textile and Fabric Mills? Those could also be re-opened (Military uniforms and Kevlar vests are important, after all). Spring, wire manufacture, machine shops. Clearly have military implications. Industrial Machinery? Absolutely. Motor Vehicle Manufacture? Yes. Ship and Boat building, both civil (transport) and military? Oh yeah. All these have been closed down by the governor of PA, and the DPA could easily be rationalized to open them back up.

        1. The DPA could easily order that re-opened. Textile and Fabric Mills? Those could also be re-opened (Military uniforms and Kevlar vests are important, after all). Spring, wire manufacture, machine shops. Clearly have military implications. Industrial Machinery? Absolutely. Motor Vehicle Manufacture? Yes. Ship and Boat building, both civil (transport) and military? Oh yeah. All these have been closed down by the governor of PA, and the DPA could easily be rationalized to open them back up.

          Can he order the employees of those places to show up at work?

          1. Several have said this, but do employees stay home because they are good non-spreaders, of because it’s the law. Hell, most stay home because everything is closed.

            Who is going to stay home when work opens back up?

            1. Who is going to stay home when work opens back up?

              If it opens up grudgingly due to federal mandate and the state governor says it’s still not safe?

              Not sure people’s devotion to the is quite what you think it is.

          2. I don’t think he can “order” the employees of these places to show up for work (at least under this law).

            I believe the law does provide significant legal protection for employees that do show up, even if in doing so they are breaking state stay-at-home laws. IE, Virginia has a stay-at-home order (or some variant thereof). General Friendly is on his way to the Pentagon. Virginia state troopers pull him over, and arrest him for breaking the Stay-at-home order. Federal law would protect General Friendly, because it has deemed his job mission critical, and would supercede state law.

            And if employees of an industry that is ordered to open stay home just because of the state law, there may be justification to fire the worker and hire someone else.

            1. Telling you think legal sanction is the only thing the government can bring to bear.

    4. AL, invoking the DPA for economic purposes may not be a power you want the President to have unless you’re cool with New Deal 2: Executive Orders Only This Time.

      1. I don’t think it’s a good idea. I think it’s a bad idea, quite frankly.

        But me think it’s a bad idea, and the president not having the power to do so, are two completely different things.

      2. Correction:

        It’s New Deal 2: Executive Order Boogaloo

  9. Are Pres. Trump’s statements entitled to respect? Are his followers entitled to respect? At some point, the prudent approach is to cut bait.

  10. Actually, it is possible that while a president lacks the authority to (for example) _implement_ a quarantine, he may indeed possess the authority to _end_ (by multiple methods) a quarantine imposed by the governor of a state. Can anyone think of a few of the mechanisms by which a president (with and/or without the aid of Congress) could _end_ a quarantine imposed by the governor of a state?

    1. It’s the exact opposite, but shoot your shot.

    2. Can anyone think of a few of the mechanisms by which a president (with and/or without the aid of Congress) could _end_ a quarantine imposed by the governor of a state?

      Threaten to nuke the state unless the governor changed his or her mind?

  11. Fortunately, as with so many things he boasts about, he’s too stupid and lazy to actually do it. Our national laughingstock.

    1. Respectfully, while I think Trump is wrong about his power here, for about half the country, he’s not a laughingstock. Remember that. A laughingstock is someone subject to near universal mockery…that is not Trump.

      By way of comparison, the wimpy, stuttering, equivocating, Obama was laughable, but most people took him seriously, thus he was not a laughingstock.

      1. Trump is a laughingstock in Europe, but not in the U.S. In the U.S., people who oppose Trump are too scared to laugh. Which is too bad, because they might be rid of Trump sooner if they could get over their fear and start laughing—not just laughing, of course, but laughing and pointing.

        1. God Emperor Trump in Italy

          Moreover, do a little search for the crowds that came out to see him during his visits, particularly in Poland. Sure, there were protesters, there always are.

          People who oppose Trump in the U.S. have no hesitation in mocking him or his supporters.

          It’s a common enough trope that Republican presidents are not taken seriously, called cowboys, and considered not sophisticated by wine sniffing Frenchmen or an aghast queen, but the intellectual Democrat presidents are. A nugget of truth to that exists that Trump’s manner in trying to get NATO nations to pay up, and his brusque manner rub them the wrong way, but that is a far cry from “laughingstock”. Moreover, the Queen and the Brits were not fans of Obama either.

          As much as you want to believe that something is true, that doesn’t make it so.

      2. Being a highly accomplished black man is not something that is laughable.
        He taught Con Law at the most prestigious law school in his home state. He was Editor of Harvard Law Review.
        Can you see beyond skin color? When you see a black man on the street, what defensive actions do you take?

        1. I never said a thing about Obama’s race. I see beyond it every damn day where I judge everyone as individuals.

          Race is irrelevant to his wimpiness, stuttering, and equivocating, which is why I found him laughable, in addition to his psuedo-intellectual approach and endless strawmanning of his opponents’ positions and opinions. There tons of wimps, stutterers, and equivocators of all races/creeds/ethnicity.

          But I’m honest enough to know that half of America saw a smart, articulate, and thoughtful politician….meaning that he WASN’T a laughingstock. Remember that poor rodeo clown that wore an Obama mask who got shut down, and how he was not subject o mockery (much at all) by SNL etc. etc., yea that’s some evidence right there he wasn’t a laughingstock, though he should have been. Hell, his wife got made fun of more for being ugly.

  12. The president does not have the power to order a national shutdown. But even if he did, if a state wanted to ignore it, there is not much the federal government could do. There are many times more state and local law enforcement officers than there are federal officers. The federal government would not have the manpower to enforce such an order.

    1. I wonder if that’s what Orville Faubus thought.

  13. Trump got the entirety of the media and political elites to scream “TRUMP CAN’T END THE SHUTDOWN!!! THE CONSTITUTION!!”

    All Trump had to do was say he could do it. So now when state’s re-open their economies and lift lockdowns and it works well, Trump can say he pushed for it.

    If a 2nd wave of COVID-19 kills a million people, there are a million tweets and news stories and governors saying only they had the power to re-open, not Trump.

    1. Looking like an authoritarian idiot to own the libs.

      1. What’s still a mystery to me, in all fairness, is if he does this on accident or on purpose.

        Libs and progressives sigh in frustration that so much power is devolved to govs and mayors, bemoaning federalism, and want an Obama in charge to lead the way. Trump, with no national plan, is a failure said Brian Stelter.

        So Trump says “I have the power” like He-man and the libs and progressives spring leaks as their “Trump is bad meter” goes to 11 when he acts like an authoritarian (though he hasn’t done anything with this power he says he has).

        Does he bait them on purpose, or does he just counterpunch like this like a punch drunk boxer? I really don’t know. Some of both I think.

        1. When someone tells you who they are, believe them.

          1. How about – don’t listen to what they say, watch what they do. That should be the case for all politicians, who lie routinely as a matter of course.

            Anyway, what if someone says they speak for others, do you believe them?

            1. Telling you what they are isn’t limited to words.

              But this is Trump telling us who he is.

              1. Trump is constrained by the Constitution, his staff, listening to Tucker Carlson, the deep state, Twitter shadowbans, the balance of power, etc. etc. You’re not going to get any argument from me that Trump’s ability to “fundamentally transform America” *wink* won’t be achieved due to these things. The system is working like it did against that other authoritarian that you were so enamored of.

                Watch what people do, not what they say, is possibly the truest piece of wisdom you’re ever going to get. James M. Buchanan won a Nobel Prize for that idea, he said, when asked to sum up his research.

                Let me ask again, if someone claims to speak for others, do you believe them?

                1. Yous see how hard you’re having to work to rationalize around him telling us who he is? How many other people you need to point at?

                  You should maybe consider why that is.

                  1. Yea, that’s you just saying that those grapes are probably just sour anyway.

                    Sorry bro, Trump can’t “fundamentally transform the country” just like Obama couldn’t, because others won’t let him. He can only move the ball downfield a ways.

                    If you don’t want to answer you should ask yourself why (heh), let me ask again…if someone claims to speak for others, do you believe them?

                    1. Ranting about ‘fundamentally transform’ is your refuge. You often go there rather than defend Trump. Or talk about how Obama is actually kinda dumb.

                      Sad, really.

                    2. You know, there are only so many times you can say something like: “Makes you think, or sad really, or shows how you really feel” as a crappy attempt to try to close an argument before it gets lame. I mean, if it makes you feel better, like you’re getting in some final dig, by all means continue. You debate like a jilted woman.

                      I suppose you (willfully) won’t make the “fundamentally transform” meta connection between the two wanna-be authoritarian presidents. If you can’t (won’t) see that Obama was as bad as Trump, just to the left not the right, that’s some serious partisan blinders you’re wearing there my friend.

                    3. I get it, but, I’m not going to take your bait and talk about Obama.

                      This is about Trump, and your mania to talk about every other past grievance you have and not Trump is something you should think about.
                      Why, when asked to explain why your guy is doing this or that, can you only yell about past guys on the other side? What does that say about your politics?

                    4. Past grievances, what the hell man. I’m making a simple baseline comparison between two wanna-be authoritarians stymied by the American system. All I see is you ducking and dodging a fair comparison…between two presidents. It’s like I asked you compare the 90s Chicago Bulls to the 80s Boston Celtics for which was a better team…and you’re saying that Larry Bird is beyond reproach.

                      And I’ve told you numerous time, that Trump, in my opinion, over-reacted and hasn’t handled this situation correctly, that we should have a lighter lockdown like Sweden. You’re conflating me with others.

                      Again, if someone says that they speak for someone else, do you believe them?

                    5. You’re not making comparisons, you’re pivoting from the topic here to wankery about Obama.

                      I’m not letting you do that.

  14. So what? If Trump violates the Constitution then who is going to stop him?

    1. Fair point. Certainly not Senate Republicans.

      1. Depending on the issue, you can count on the Courts. Even the Supreme Court, something like 9 times, unanimously said Obama had violated the Constitution. Trump can’t flip *all* the seats in even 8 years.

  15. President Trump can certainly provide political cover for governors who want to reopen quickly, but fear backlash if things go wrong “President Trump ordered us to!”
    He also gives cover to those who want to be seen opposing the evil tyrant Trump “You can’t make us, we’ll do it in our own sweet time, nyah nyah!”
    He also exposes governors who drag their feet to adverse public opinion “The economic resources of State X are vital to smooth operation of the US, but Governor Y is dragging his feet to the detriment of the whole country!”
    Seems like a pretty good move by the President, no?

    1. “Seems like a pretty good move by the President, no?”

      I am glad you are on the other side of our political divide. It has made winning the culture war that much easier.

    2. It seems like a pretty good move unless you’re actually concerned with the right way to deal with the pandemic.

  16. How many different versions of ‘He didn’t mean it – this is all a clever ploy to own the libs’ do you guys have out there at this point?

    Does it occur to you that it’s a bit strange how often you have to explain away what the President actually says as not nearly so dumb/authoritarian as it seems?

  17. Interesting. While Trump might not have the legal authority to lift a lockdown, he does have the power to tell the businesses across the country, or even in certain regions, that they can reopen, and this will pit governors against businesses in their states. Remember, businesses want to open, they are just not allowed to by their governors.

    1. No, not interesting. Trump using the bully pulpit to undercut governors is pretty screwed up.

    2. he does have the power to tell the businesses across the country, or even in certain regions, that they can reopen,

      Sure. So do I.


    Trump Supporters on the VC: We’re gonna need a bigger squirrel.

  19. State Stay at Home orders are unconstitutional.
    Shadows and penumbra of the constitution do not make them constitutional.
    See Brown v. Board of Education, CA Prop 8 and AZ SB 1070 on what the Feds can do with unconstitutional state laws.

    1. While I’m sure you are sure in your position, that’s not what the courts have so far said that the law is.

      1. Cite the case that the courts have ruled that the Government can sentence people to be confined to their homes with no due process.
        I would guess the Courts will dismiss all the State Stay at Home orders cases citing Qualified Immunity.


          Also from this blog: “A state “may exclude from its limits … persons afflicted by contagious or infectious diseases,” Railroad Co. v. Husen (1877), and this extends to quarantines that aim at people who might be infected (or might get infected), not just to exclusion of people who have actually been infected, see, e.g., Compagnie Francaise v. La. State Bd. of Health (1902).”

          1. Um, Compagnie is about New Orleans using a city-level quarantine to keep people from disembarking from a ship that came from France and Italy. The Supreme Court affirmed that the state Board of Health had the power to “exclude healthy persons from a locality infested with a contagious or infectious disease.” The case has precisely jack to do with the current situation of presumptively healthy people across the country effectively being placed under house arrest, and has never been cited as such.

            I take it you just cut and pasted and didn’t actually read it.

            1. I cut and pasted it from Prof. Volokh’s analysis.

              1. Ah, ok. So you just cut and pasted an analysis of an issue different than the one we were discussing in this thread. Not uncoincidentally, that’s how Eugene was able to appropriately cite the case I discussed above for the issue he was discussing (orders that “forbid travel to a particular place, or require travelers to be temporarily quarantined.”)

                1. the courts have ruled that the Government can sentence people to be confined to their homes with no due process.

                  I posted cases that speak to that issue, and analysis that does.

                  Oh, and hey look, there’s a new case out of PA on the point!

                  1. the courts have ruled that the Government can sentence people to be confined to their homes with no due process.

                    Under specific circumstances not applicable to the topic of this thread, specific circumstances which Eugene specifically addressed in his analysis, and specific circumstances you strangely omitted from your cutting and pasting. That’s like trying to justify arbitrary mass executions with, “well, the courts have ruled that the Government can shoot people with drones with no due process!”

                    Oh, and hey look, there’s a new case out of PA on the point!

                    Look, a squirrel!

                    To my (ahem) untrained eye, that case is about a challenge to an order “compelling the closure of the physical operations of all non-life-sustaining business” and thus also has squat to do with ordering people to stay inside their houses in effective perpetuity.

                    Again, actually reading the material before gleefully throwing it around like confetti does wonders.

                    1. 1. Something on point, such as the PA case which explodes Paul L’s bluster about what the law totally is? That is very much the opposite of a distraction.

                      2. If you don’t see how the logic in that case applies to quarantines generally, you’re straining to distinguish.

                      3. I find Prof. Volokh’s past analysis to apply here. He didn’t limit it to closing businesses, just as the case we are discussing did not. What were the specific conditions Prof. Volokh was applying that distinguish it from the quarantine orders Paul L. above thinks are illegal tyranny?

                    2. 1. Something on point, such as the PA case

                      Repeating it does not make it so. I explained above why it’s not on point, and you’ve said nothing beyond “is too!”

                      If you don’t see how the logic in that case applies to quarantines generally, you’re straining to distinguish.

                      If I don’t agree with your superficial, word-search bingo analysis, I’m straining. Got it. In other news, distinguishing cases is a large part of what lawyers do for a living. Sorry about that.

                      I find Prof. Volokh’s past analysis to apply here. He didn’t limit it to closing businesses, just as the case we are discussing did not.

                      Again with the glib pronouncements. Quote the specific language in either that you feel makes your case. I’ll not hold my breath.

        2. Cite the case that the courts have ruled that the Government can sentence people to be confined to their homes with no due process.

          What process do you think is due?

  20. Let’s see. Here are some good Trumpbacks for this occasion!

    1. But Hillary! Did you know if Hillary was elected, she would probably have already sold us out to the subterranean lizard people already?

    2. Trump gets rent-free space in ur hed! Trump is only lying about how dumb he is about stuff, because he knows that when he lies, it annoys libtards who are all concerned about stupid stuff like the truth.

    3. Trump isn’t lying, he’s right! Old-timey conservatives think the government should stay out of stuff, but GALAXY BRAIN conservatives know that the President has absolute power. It’s in that part of the Constitution I haven’t read yet.

    4. 8th Dimensional Chess. Trump is all Buckaroo Banzai, and this is all about leveraging businesses, who don’t know that he lies, against state governments, who do know he is lying, so that …. something something he doesn’t get blamed for anything and SHUT UP!

  21. I’m sure liberals who spent a long time arguing the federal government had to power to tell people to buy a commercial product (health insurance) and the commerce clause gave the federal government the power to run a national healthcare system will have a fun time making the argument that the President doesn’t have time type of superseding authority over the states when those shutdown orders clearly effect commerce and commerce between the states.

    Hold on while I microwave some more popcorn…

    1. It’s almost as though what you describe liberals supporting isn’t ‘Total Authority.’

      1. If ordering Johnny Citizen to purchase a consumer product on pain of being fined by the federal government isn’t “total authority” of the federal government then I don’t know what might be.

        1. Really, that’s the worst, most authoritarian thing you can imagine a government doing? Ordering you to buy insurance?

      2. And almost as if Jimmy doesn’t understand the difference between the executive and the legislature. Whatever liberals (wrongly) thought/think of the power of Congress to enact the individual mandate, I guarantee they didn’t think that the president had the Total Authority to order people to buy health insurance.

  22. If Trump starts trying to order the states and governors around unilaterally, will there be a side of broccoli with that?

    Republicans deserve everything that’s coming to them, including Trump.

    1. Things like good poll numbers because Trump supporters love it when he sticks it to liberals?

      1. Uh huh. Might want to check those polls again.

  23. The Federal Government controls/regulates interstate commerce and the states may NOT interfere with or place burdens upon interstate commerce. The Supreme Court has ruled that the interstate commerce clause also covers non-interstate commerce activities as long as such activity has an affect upon interstate commerce. There is almost no activity that doesn’t have an affect on interstate commerce. So for example, Trump says trucks may roll into a state to pick up or drop off at a factory or warehouse the Governors and Mayors may not be able to stop that activity without running afoul of the interstate commerce powers of the federal government.

    I haven’t seen any Supreme Court case being cited that attempts to balance the health and safety police powers of the states with the federal power over interstate commerce. It is NOT a slam dunk one way or the other in my opinion. Those “experts” who claim it is a slam dunk one way or the other, and wrong in my opinion.

    1. No. Notice the weird way that you switch around subjects. Let’s start with the beginning.

      When we say that the Federal Government can regulate interstate commerce, what we really mean is that CONGRESS has an ENUMERATED POWER to LEGISLATE when it comes to interstate commerce. Now, when Congress has correctly legislated, then the President can enforce that law.

      There is no law cited here. Instead, you have the PLENARY power of the states when it comes to the states’ police power (and the health, safety, and welfare of state citizens).

      As for your example, Trump cannot just “say” that something happens, and therefore it must. That is called an absolute monarchy, which we do not have. So if Trump says, for example, that in all divorces men get all the money, because money goes in interstate commerce (and is fungible), that doesn’t mean that it will happen, because Trump said it. You understand that, right?

      What … the …. hell…. has happened to this country?

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