Trump then said: “The authority of the President of the United States having to do with the subject we’re talking about is total.” And after speaking about local governments, he said, “They can’t do anything without the approval of the President of the United States.”
It wasn’t clear if he was referring to state or local officials with that assertion. But he was wrong regardless.
Facts First: The President does not have “total” authority over coronavirus restrictions. Without seeking or requiring Trump’s permission, governors, mayors and school district officials imposed the restrictions that have kept citizens at home and shut down schools and businesses, and it’s those same officials who have the power to decide when to lift those restrictions. There is no legislation that explicitly gives the President the power to override states’ public health measures. In addition, Trump said last week that he prefers, because of the Constitution, to let governors make their own decisions on coronavirus restrictions.
James Hodge, a professor and director of the Center for Public Health Law and Policy at Arizona State University, said Trump is “wrong” to claim he has the power to lift the states’ coronavirus restrictions.
“He can strongly encourage, advise, or even litigate whether states’ authorities to restrict public movements re: shelter in place or stay home orders are warranted, but cannot tell sovereign governors to lift these orders all at once just because the federal government determines it is high time to do so,” Hodge said in an email.
No legislation says the President has the power to overturn the public health decisions of these authorities, Vladeck and other legal scholars say.
When another reporter explained that the Tenth Amendment to the Constitution grants to states the powers not delegated to the federal government, Trump did not contest this interpretation — and instead sidestepped the question, saying he did not believe a state official who refused to reopen the economy could win reelection.
Robert Barnes, a lawyer who supports Trump, argued to CNN on Monday that, “in the emergency context,” the President possesses these commerce powers the Constitution assigns to Congress.
Vladeck said Barnes’ claim is unfounded. While Vladeck said Congress might be able to pass a law authorizing the President to override some state and local restrictions — he emphasized the “might” — he said Trump does not have the power to override the restrictions on his own.
“Congress has delegated the President a bunch of powers for emergencies, but this isn’t among them,” Vladeck told CNN.
While both the Congressional Research Service report and the National Conference of State Legislatures say that the federal government can “take over” the management of a public health incident within a state “if the federal government determines local efforts are inadequate,” they do not specifically address a situation in which the federal government wants to take over because it believes the state is being too strict in trying to address the emergency.
Trump has some power
Trump himself has spoken as recently as last week about states’ constitutional powers during the pandemic, though he has asserted that he too has powers.
After he was asked on April 10 about the possibility of Florida’s governor opening up schools in May, the President said: “I like to allow governors to make decisions without overruling them, because from a constitutional standpoint, that’s the way it should be done. If I disagreed, I would overrule a governor, and I have that right to do it. But I’d rather have them — you can call it ‘federalist,’ you can call it ‘the Constitution,’ but I call it ‘the Constitution.’ I would rather have them make their decisions.”
Trump does have some clear, though limited, direct power. For example, he can order federal employees to return to their offices and reopen national parks and other federal property.
And he can, obviously, use his influence to try to persuade governors — and citizens — to do as he wishes.
Trump also asserted at the briefing that even Democratic governors would agree with his claim to total authority. New York Democratic Gov. Andrew Cuomo, speaking shortly after the briefing to CNN’s Erin Burnett, said he disagreed: “We have a Constitution. We don’t have a king.”