On Monday, President Trump asserted he has the power as president to order the reopening of the economy. He also issued a tweet whereby he stated that his power as president supersedes the authority of governors of the respective states.
On Tuesday, President Trump appeared to back away from his position, saying that governors would be the ones to decide whether to reopen their state economies.
The dust-up over federalism does raise important issues that we need to consider during the coronavirus pandemic. What is the proper role of the federal government vs the states and which level of government is best suited to handle the many issues confronting the nation?
First, the 10th Amendment to the U.S. Constitution expressly states that powers not granted to the federal government are reserved to the states. The Constitution grants no authority to the national government to determine or dictate public health or safety decisions at the state or local level. In fact, the Constitution is silent on such matters and since there is no express delegation to the federal government such authority is reserved to the states.
Second, there is no statutory grant of authority from Congress empowering the federal government during a public health emergency to order companies to close or tell citizens to stay home. Police powers have historically been left to the states and by state delegation, to local governments. For example, you may recall that during the race riots in the 1960’s, President Johnson sent in federal troops to restore order only after specific requests from a governor.
Third, perhaps the seminal case on presidential authority during a national emergency, was the Youngstown Sheet and Tube case in 1952. During the Korean War, President Truman attempted to nationalize the steel industry because a threatened steelworker strike jeopardized the ability of the military to secure necessary equipment for the war. In a 6-3 decision, the Supreme Court overruled Truman, finding that despite the exigent circumstances of the war, the president lacked specific constitutional and statutory authority to federalize the steel industry. This case is even more significant because Truman was acting in wartime as commander in chief. Nonetheless, the Court found his argument unpersuasive.
It is true that presidents and congresses have sometimes found ways around limits on their authority to command the states to follow federal will. The Supreme Court has upheld federal intrusions on state authority when federal dollars have been used as inducements to force states to adopt preferred federal policies. A relevant example was when Congress commanded states to adopt a 21-year old drinking age as a condition of receiving federal dollars. More recently, the Court ruled that the federal government could not force states to accept the Medicaid expansion as part of the Affordable Care Act.
Congress could force state action in the current instance if receipt of federal stimulus dollars were conditioned upon the states adopting certain public health or economic policies. But they’ve taken no such action in these areas and the president can’t force the states to act without such express authority from congress.
Of course, ironies abound in this little dustup. Just a week ago, many Trump critics were attacking him for not ordering shutdowns in the few states where governors haven’t acted to do so. Mr. Trump doesn’t have the power to force states to shutdown and he doesn’t – under our federal system – have the power to force states to re-open their businesses or schools.
This dispute, like many contemporary political arguments, is mostly beside the point.
Everyone wants the virus curve to be sufficiently flattened to allow us to resume our normal lives. While private companies and medical labs continue to push for the drugs and vaccines to beat down the threat of contagion, we must also develop strategies to gradually reopen the economy. This means much more testing for those with the virus, including those who may be asymptomatic.
The federal and state governments will continue to focus our attention on public health needs including the coordination of needed medical supplies and equipment. Both must also develop and execute plans to get our economies up and running, while assuring the safety and well-being of the public.
We need to resist the temptation to Monday-morning quarterback, cast blame and spread invective. Such actions will do nothing to bring back those who’ve died or heal those who are sick. Let’s remember that we’re all in this together and we’re best positioned to beat this virus as a united nation.
Former Representative John Faso of Kinderhook represented New York's 19th House district in the 115th Congress.
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