If you have been following along with President Donald Trump’s daily press briefings, you have likely heard him speak about his desire to reopen America as soon as possible. With the economy in the tanks and millions of businesses floundering due to “Stay At Home” orders, it makes sense that Trump wants to help turn things around by reopening the country and letting people get on with their normal life.
However, Trump hasn’t exactly used the best foresight when it comes to handling this pandemic, so there’s worry that his rush to reopen the economy could actually cause more harm than good. Regardless of whether or not the decision to reopen America would make things better or worse, we’re going to focus on the constitutionality of such a decision. Does Trump actually have the authority to reopen the country?
Before we answer that question, we must first acknowledge that according to Trump’s twitter account, he certainly believes he has the right to do so.
….It is the decision of the President, and for many good reasons. With that being said, the Administration and I are working closely with the Governors, and this will continue. A decision by me, in conjunction with the Governors and input from others, will be made shortly!
— Donald J. Trump (@realDonaldTrump) April 13, 2020
Can Trump Order States To Reopen? – A Constitutional Law Approach
The short answer to the above question is no, he does not. The United States Constitution outlines the specific powers granted to all three branches of the government. Article II vests the executive power of the federal government in the president while also establishing his powers and responsibilities. This article is silent on any power the president has to order the states to do anything in times of crisis. The argument would be if the power is not enumerated in the Constitution, then the president lacks the power to reopen the states. The president could certainly reopen the federal government and all of its agencies, however the agencies with officers and locations in various states would still be limited by the restrictions imposed by the state and local executive governments.
The Constitution even goes a little farther, as our forefathers saw first-hand the problems associated with government overreach and the tyranny of King George. Our founders were fearful of the consolidation of power in any one person or branch and crafted a system of checks and balances to ensure no one branch was more powerful than the others. Trump has challenged this idea and has been assisted in his efforts by a weak-kneed Senate Majority Leader, Mitch McConnell. The Tenth Amendment states that “powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” This last Amendment to the Bill of Rights will be critically analyzed in the days and weeks to come as this constitutional crisis moves forward.
No, there is no power in the Federal Government, let alone the president, to control, order, dictate or mandate when, if or how, the states choose to open their economy. What is apparent is that Trump is prepared to act like a mob boss. When Trump was pressed about his authority to reopen the states and under what authority he could refer to, Trump stated “the states need us one way or the other.” This is an implied threat.
We are in the midst of a global pandemic. Over 500,000 Americans are infected and as of this morning over 23,000 people have died from the virus in the United States alone. We stand alone in the world in terms of numbers of cases and deaths. Trump is essentially telling the governors to either get on board or the federal government may not help with the much needed personal protection equipment, medical supplies, front-line healthcare needs and other resources needed to ensure they have the resources to battle this virus.
Trump plans to announce his “Open The Country” task force sometime Tuesday. He plans to come up with a process he believes will reopen the US for business. This will set up a constitutional crisis as some governors will choose to go it alone or as Connecticut, Massachusetts, New Jersey, New York and Rhode Island in the east and California, Oregon and Washington in the west are doing, form an organization of states to combat the crisis together and gradually work on reopening. I predict the governors will ultimately be forced to sue President Trump to prevent his dangerous demands to reopen from creating new coronavirus hotspots.
Governors and local executives have led this battle in the absence of any real federal leadership. We should allow them to continue to do their jobs, protect their citizens and take a cautious yet optimistic approach to reopening the government.
