Below is my column in the Washington Post on President Donald Trump’s assertions of “absolute” and “total” power over the states. While he appeared to dial back on the rhetoric in the last two days, President Trump again yesterday said that he could have issued orders shutting down every state but decided to let the governors do it. There remains a fundamental misconception of the President’s authority in our system of federalism.
Here is the column:
President Trump caused a stir Monday morning by declaring not only that he would decide when to open the country – resuming something like normal economic activity after coronavirus-related lockdowns – but that he had the ultimate authority to do so:
Trump doubled down in Monday evening’s White House coronavirus task force briefing, saying “the federal government has absolute power” to direct Americans back to their normal routines and “when somebody is president of the United States, the authority is total.” It was a startling shift after the president correctly maintained for weeks that state governments, not the federal government, have primary authority to prepare for and deal with a pandemic. After leaving it to governors to implement various stay-at-home orders, Trump is now asserting the unilateral authority to lift such state orders.
He’s wrong. Our Constitution was written precisely to the deny that particular claim.
It was also designed to limit federal authority, generally. Under our federalist system, the default authority remains with the states. As James Madison explained in the Federalist No. 45, “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.” In other words, faced with a conflict with the states, the federal government must rely on express, not presumed, authority, particularly in areas like public health and police powers. In such conflicts, courts return home to the 10th Amendment, which says that “the 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.” In other words, when federal push comes to state shove, the states are supposed to win.
If we reach a point in this crisis where a national vaccination program is on the table, an important authority is the Supreme Court’s decision in Jacobson v. Massachusetts (1905), which upheld a state’s right to enforce such a program. The court held: “The safety and the health of the people of Massachusetts are, in the first instance, for that Commonwealth to guard and protect. They are matters that do not ordinarily concern the National Government. So far as they can be reached by any government, they depend, primarily, upon such action as the State in its wisdom may take, and we do not perceive that this legislation has invaded any right secured by the Federal Constitution.”
The Centers for Disease Control and Prevention has limited authority to quarantine individuals but not to impose broad stay-at-home orders. There is one ambiguous provision in the federal code titled “Measures in the event of inadequate local control,” which reserves the right of the CDC director to “take such measures to prevent such spread of the diseases as he/she deems reasonably necessary.” That authority is designed to allow tougher public health protections than a local government has ordered, when necessary to protect public health.
But what Trump suggests is that there is a type of inverse power to order more lax public health measures over state objections. Yet the pandemic rules were designed to ensure more protective health measures, not protect against them. Trump has alluded to a type of pan-economic power to force states to prioritize economics over pandemic concerns. Not only does no such express power exist, it would contradict core principles of our constitutional system.
Federalism is a strength, not a weakness, in a pandemic, allowing highly tailored plans that are primarily administered by state and local officials, for better or worse. A 2015 New York State Department of Health report, for example, shows that New York, which has borne the brunt of the coronavirus pandemic, received this warning, which wasn’t adequately heeded: “If an influenza pandemic on the scale of the 1918 pandemic were to occur, it is possible that New York would face a significant shortage of ventilators.”
The flip side of federalism is that, just as states decide how to prepare and act on a pandemic, they also get to decide when to stop such measures. Each state is allowed to balance the possible costs of a resurgence of cases against the costs of harming its economy by continuing public health measures. It is the ultimate policy decision, and it remains a state decision with likely different priorities in different states. Regardless of the state choice, however, a constitutional order imposed by a governor must be lifted by that governor.
As president, Trump has the bully pulpit to argue that case, and many governors are likely to listen to him. By calling for the nation to reopen, he offers some political cover for governors who can rely on the federal guidance. The federal government can also threaten to extend or withhold forms of financial support or cooperation for states that oppose the federal plan – but that power is limited. The Supreme Court has struck down federal laws that effectively “commandeer” states to carry out federal policies, including supporting the striking down of parts of the Affordable Care Act. As the court wrote in one of the most critical cases, Printz v. United States (1997), “Such commands are fundamentally incompatible with our constitutional system of dual sovereignty.”
The constitutional reality is that the president’s desire to order the opening up of the country falls somewhere between the aspirational and the persuasive. Federalism dictates as a constitutional matter what task force member Anthony Fauci believed is required as a public health matter: The return to normalcy will vary from jurisdiction to jurisdiction rather than be “one-size-fits-all.” The founders, of course, were not seeking to combat contagions when they created our system. They were trying to avert tyranny.
Trump has to convince, not command, governors on what is best for their states.