Trump's Claim of "Total Authority" Ignores Federalism Principles
Written by Meryl Chertoff, Executive Director, SALPAL
I am not clutching my pearls about what the President said in his Monday briefing about his “total authority.” Nothing surprises me anymore from this Commander in Chief. At best, he was trying to rile up the good folks who still believe in the rule of law. At worst, he was trying to start a new smackdown to distract us all from our real troubles.
The claim was unfathomable, and if you don’t trust law professors, you can look to the conservative Heritage Foundation’s John Malcolm, the National Review, and Wyoming Senator Liz Cheney, a conservative stalwart, all of whom have refuted the President’s assertion.
Here is why he is flat-out wrong. The Tenth Amendment to the US Constitution is the basis of federalism. It says that all rights not delegated to the federal government are reserved to the states. Historically, that has meant that the states (and more specifically, the state’s chief executive, its Governor) holds plenary power over all aspects of governance not constitutionally assigned to the central government. Among these are police powers, public safety powers and emergency powers, including public health emergency powers. Through Congressional enactments, like the Public Health Services Act (PHSA), the federal government has gotten in on some of that action, by authorizing travel limits on specific individual or groups at risk of transmitting a disease. Still the primary function is the states’. There is no blanket power to impose a federal or national quarantine. Governors declare quarantines (and some mayors can as well, using powers delegated to them by their states) They can also order shelter-in-place, curfews, and business closures under inherent authorities, and through state constitutional provisions and state laws.
There is also a division of power federally between the two political branches, and the judiciary. Congress regulates interstate commerce, and if what a governor is doing hurts interstate commerce, then that can be challenged in federal Court. So if a state emergency order hurts interstate commerce, the solution is a lawsuit to challenge that—but it is a tough go, since Congress has not passed a law here. American citizens generally have a right to travel domestically, under the Privileges and Immunities Clause, but that can be constrained if there is no less restrictive way for the governor of one state to protect her state from a harm likely to be caused by the citizen of another state (so travel restrictions that the governors have announced in places like Rhode Island and Texas may be ok– or they may not be the least restrictive means to stop the spread of COVID-19—we won’t know until a court challenge is decided) Nothing so far on absolute presidential power, in fact the opposite: ours is a system designed to disseminate power, “ambition countering ambition” with each locus of power balancing another. The Founders liked geometry.
Those are the basics. All fifty states have declared emergencies to combat COVID-19. Here is where the federal government can shine in an emergency: by issuing guidelines to exhort sound action, by funding programs, and by providing technical and logistical support to states and locals. The state emergency declarations, once approved by the President, trigger eligibility for federal Stafford Act funds: the same funds that states request when there is a hurricane or flood. They allow FEMA and other response agencies to coordinate response and logistics. Some governors have invited the National Guard to come in for civilian support tasks. Under the PHSA, the President has some power to restrict interstate travel and clear authority to restrict travel by US citizens and foreign nationals entering the US over a land or sea border, or international air travel
In addition to the state emergencies declared by governors, the president on March 13 declared a national emergency, under the Stafford Act, and also, under the 1976 National Emergency Act, a provision that is sparingly used by Presidents, but which Trump also used in February 2019 to redirect funds to construction of his border wall. Among more than 100 powers that the President can claim in a national emergency, none include countermanding an order by a state’s governor. So, that cannot be the source of last night’s claim.
This leaves just one other option: The Insurrection Act. It says
Whenever the President considers that unlawful obstructions, combinations or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws on the United Sttes in any State by the ordinary course of judicial proceedings, he may call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion.
This is the one exception to the general rule that federal troops cannot be used for domestic law enforcement. This is the authority that President Eisenhower relied on when in 1957 he called in the 101st Airborne to escort students into Little Rock’s Central High School, enforcing a federal court order to integrate Little Rock public schools. The Airborne confronted Arkansas National Guard troops called out by Governor Orville Faubus, and a screaming angry mob.
Have you been to New York City this week? There are no mobs, no protestors, and no armed National Guard troops, just an eerie silence. So if President Trump thinks there is an insurrection going on, it is only because his definition of an insurrection is opposition to one of his directives.
Today, each of the governors is running his or her own public health emergency, with guidance coming from Washington sometimes slow, or worse, contradictory. But we have seen an interesting thing emerge. Understanding that the fate of each state in the face of the epidemic is tied to other states in their region, the governors are coming together voluntarily, and engaging in a regional response. Governor Cuomo, leading the Northeast regional economic engine centered in New York City, gathered his fellow governors from New Jersey, Connecticut, Pennsylvania, Delaware, Rhode Island and Massachusetts into a bipartisan regional coalition to develop a science-backed, data-driven approach to gradually restarting the economic engine of the Northeast. Governor Newsom of California and fellow West Coast governors are doing the same. This kind of horizontal federalism allow the governors to share best practices, and to work together to balance health and safety concerns with economic exigencies. The federalist system was designed to allow this flexibility, and it is being put to good use now. The best thing President Trump could do right now is to stand aside and let the governors work things out. If they stumble, he could offer to mediate. Claiming absolute power at this critical juncture is counterfactual, counterproductive, and frightening.