On Monday, President Trump delivered an astonishing press conference, in which he claimed the sort of powers ordinarily associated with an absolute monarch.
The 10th Amendment, explained for Trump
No, the president doesn’t have “total authority” to order states to reopen.
Ian Millhiser is a senior correspondent at Vox, where he focuses on the Supreme Court, the Constitution, and the decline of liberal democracy in the United States. He received a JD from Duke University and is the author of two books on the Supreme Court.
When asked what he would do about states that do not agree to lift coronavirus-related restrictions and reopen their economies on the same schedule preferred by the White House, Trump falsely claimed that “the president of the United States calls the shots.” He then added another false statement, that states “can’t do anything without the approval of the president.”
When pressed, Trump went even further. “When somebody is the president of the United States,” Trump incorrectly claimed, “the authority is total.” Trump has reportedly floated May 1 as a target date for reopening US businesses.
It’s a bit surprising that this needs to be said, but no, the president of the United States’ authority is not “total.”
The federal government’s powers are restricted to a broad-but-limited list of enumerated powers, and the 10th Amendment reserves any power not mentioned on that list “to the states” or “to the people.” A doctrine known as “anti-commandeering” prohibits the federal government from ordering state and local governments to take specific actions, or to spend their resources in particular ways.
Because the state and local governments own and operate public schools, the federal government cannot lawfully order those schools reopened. Schools will reopen when governors, mayors, or other relevant state and local officials decide to open them.
Meanwhile, as many Americans of a certain age learned from Schoolhouse Rock, the Constitution separates power between the president and Congress. Congress has the power to “regulate commerce ... among the several states,” a power that is broad enough that the federal legislature could probably enact a law preempting state and local orders closing private businesses.
If Trump wanted such a bill to become law, he would have to appeal to the Democratic House in order to pass it, which is unlikely so long as Democrats believe that social distancing remains necessary to control the coronavirus pandemic.
All of this said, Trump is hardly powerless. His most important power likely has nothing to do with the specific legal authority given to the president. Though Trump has never been a popular president, he remains very popular among self-identified Republicans — a recent YouGov tracking poll, for example, found that 66 percent of Republicans “strongly approve” of Trump’s job performance.
Trump, in other words, has tremendous persuasive power over Republican partisans — including many Republican partisans who sit in governor’s mansions. If Trump were to order the economy reopened, it is likely that at least some red-state officials would be under pressure to cooperate.
The most significant stay-at-home orders come from state officials, not the federal government
Historically, the federal government has been fairly cautious in writing public health laws not to exceed its authority under the Constitution. The federal law and regulations dealing with quarantines, for example, does not claim the power to impose a quarantine on any American anywhere in the nation. Rather, they permit quarantines of individuals entering the country or crossing state borders, while leaving the question of whether to quarantine individuals within a state’s borders to the state itself.
Similarly, the raft of stay-at-home and business closure orders imposed on many Americans, as well as various orders closing public schools, have typically come from state or local officials. And, in many cases, these officials have already signaled that they plan to keep these orders in place well beyond Trump’s May 1 deadline.
In Virginia, for example, Democratic Gov. Ralph Northam issued an executive order providing that “all individuals in Virginia shall remain at their place of residence,” except to perform limited activities like obtaining groceries, seeking medical attention, or traveling to work. Notably, the order provides that it “shall remain in full force and in effect until June 10, 2020, unless amended or rescinded by further executive order.”
That’s a pretty clear signal that Northam intends to keep social distancing measures in place well into June, even if Trump would prefer to lift them at the beginning of May.
Similarly, many states have announced that public schools will remain closed for the remainder of the academic year, including several states such as Alabama, Arizona, Georgia, Indiana, and Missouri that are dominated by Republicans.
As mentioned above, the federal government has no constitutional authority to reopen these schools, even if Congress enacted a law requiring them to reopen (Congress could conceivably try to set up an alternative network of federal public schools run by federally employed teachers, but the logistical challenge of setting up such a network on short notice would likely be insurmountable).
If schools remain closed, moreover, it’s hard to see how many workers will be able to return to their jobs as if there were no pandemic. Public schools do not simply educate the next generation, they also give parents someone to look after their children while they are at work. If the economy were nominally reopened, but public schools remained closed, private daycare centers would be overwhelmed (if they reopened at all). And many parents would likely struggle to find babysitters who were willing to step out of their own homes while the disease still raged.
All of this said, it is likely that at least some red state governors would lift stay-at-home restrictions and possibly even school closure orders if Trump asked them to do so. But even among Republicans, Trump’s influence may be limited. Some Republican governors, such as Ohio’s Mike DeWine and Maryland’s Larry Hogan, have executed an aggressive and serious response to the coronavirus pandemic, even as they’ve faced pressure from their fellow Republicans to back down.
It’s far from clear that these governors would respond positively to additional pressure from Trump.
It’s also possible that Trump might divert the federal resources he does control to states that comply with his wishes. But it’s also far from clear that this tactic would move many governors to give Trump want he wants. Sure, a governor who reopens their state might get a few more ventilators to deal with existing coronavirus cases — but they’d also wind up with significantly more coronavirus cases.
Trump cannot order private businesses and individuals to pretend like everything is normal
In the midst of the extraordinary shared sacrifice demanded by the coronavirus pandemic, it’s important to acknowledge that many of the most important decisions are not being made by governments. Indeed, it is a testament to the human capacity for solidarity that hundreds of millions of individuals across the globe have made the personal decision to stay at home in order to fight the spread of coronavirus.
Similarly, countless private employers made the decision to close their doors or to order their employees to work from home, not because a government official made them do so, but because they wanted to do their part to prevent infections.
Trump cannot order individuals back to work against their will. Neither can Congress. Nor any state or local official. The Constitution is quite clear on this point. The 13th Amendment unequivocally bans “involuntary servitude” within the United States.
If Trump wants the economy to reopen, he needs to convince individual Americans that it is safe to return to a semi-normal life. The best way to do that is to actually make it safe.
