President Trump took to Twitter Monday to address what he described as “conflict and confusion” stirred up by some in the media about who exactly has the final authority on when to re-open state economies, which have largely shut down in response to the COVID-19 pandemic — actions that have resulted in a devastating 17 million Americans filing for unemployment. The decision to re-open, Trump declared in a pair of posts, rests with the President of the United States and the federal government, not the state governors.
“For the purpose of creating conflict and confusion, some in the Fake News Media are saying that it is the Governors decision to open up the states, not that of the President of the United States [and] the Federal Government,” Trump tweeted Monday. “Let it be fully understood that this is incorrect. It is the decision of the President, and for many good reasons.”
“With that being said, the Administration and I are working closely with the Governors, and this will continue,” the president added. “A decision by me, in conjunction with the Governors and input from others, will be made shortly!”
….It is the decision of the President, and for many good reasons. With that being said, the Administration and I are working closely with the Governors, and this will continue. A decision by me, in conjunction with the Governors and input from others, will be made shortly!
— Donald J. Trump (@realDonaldTrump) April 13, 2020
In his approach to the crisis, Trump has attempted to maintain a balance between state and federal authority, providing guidance to the states but largely allowing the governors to make the key decisions, including when and how to lockdown in an attempt to curb the spread of the virus.
From the beginning, questions about state and federal authority as outlined in the U.S. Constitution have arisen. The Tenth Amendment expressly gives states authority over any powers not specifically delegated to the federal government in the Constitution. “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,” the amendment reads.
However, the federal government often has authority over issues that cross state lines and in times of crisis has asserted authority over states on key issues. So how exactly does the authority question play out in a pandemic situation. The Associated Press addressed the question recently and concluded that much of the decision-making ultimately rests with state and local authorities.
“President Donald Trump has the biggest megaphone, but it’s governors and local officials who will decide what type of restrictions to impose on their citizens to try to slow the spread of the coronavirus. The Constitution largely gives states the authority to regulate their own affairs,” AP reported on April 1. In response to the question “Does the president have the authority to override state and local orders?” AP provided the following response:
No. Under our constitutional system, states have the power and responsibility for maintaining public order and safety. As we’ve seen since the outbreak began, decisions about limiting social interactions by ordering people to shelter in place, closing businesses and shutting schools are being made by governors and local officials. Those same officials will make the call about when to ease up. Trump’s comments “are just advisory,” said John Malcolm of the Heritage Foundation.
Lawfare‘s Robert Chesney also tackled this question and provided a more thorough and nuanced response. While he argues that the president “cannot simply order state and local officials to change their policies,” noting that while “federal powers are supreme,” they are also “limited in scope” and state governments “are independent entities, not mere subordinate layers under and within the federal government.” While the federal government can “override contrary state and local rules,” Chesney explains, “it does not follow that President Trump can therefore override state and local rules on matters like shelter-in-place.”
That said, as both AP and Lawfare stress, Trump has “practical power” as the president to heavily influence states’ policies because of his powerful position. If he and his Coronavirus Task Force begin to urge states to re-open, the public and political pressure on state governors would mount quickly and prove difficult to countermand.