President Donald Trump recently made a remark on Twitter that has sparked a big controversy in American politics. While bashing the ‘fake’ media, which he finds a favorite opponent on the question of reopening the country which is witnessing a shutdown because of the COVID-19 pandemic, Trump said it is him and the federal government that will decide on lifting the lockdown. The remark did not go down well with several states and many of them came up with their own groups to decide on the restoration of normalcy.
On Monday, April 13 — the day he posted the controversial tweets — Trump also bragged at a news briefing at the White House, saying: "When somebody’s president of the United States, the authority is total." He said this while discussing whether he or the governors of various states have the power to lift the restrictions. The statement added fuel to the fire as New York Governor Andrew Cuomo, who has played an impressive role to lead in the times of the crisis, teamed up with other governors from the east to set up a regional task force to deal with the pandemic.
The situation gradually crawled towards a potential constitutional clash with the state leaderships clearly not impressed with what is seen as the White House's efforts to see the provinces comply with its call.
"We don't have a king in this country... It's the colonies that ceded certain responsibility to a federal government. All other power remains with the states," the Democratic governor said on April 14.
The veteran governor referred to the 10th Amendment to the Constitution, which has been incorporated to the Bill of Rights. According to the amendment: “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.”
So, does Trump’s claim of total authority stand strong against the constitutional provision?
'Constitution was framed to check authoritarianism'
Jonathan Turley, a legal expert at George Washington University, who had in the past argued against the impeachment of Trump before the House Judiciary Committee, said in a tweet that the law of the land was written precisely to prevent presidents from claiming such positions. He added, "It (Constitution) also reserved to the states (& individuals) rights not expressly given to the federal government."
According to a report in the USA Today, Turley said the American federalism, in which the states are given a large degree of autonomy, was one of the ways the framers of the Constitution tried to avoid authoritarian tendencies.
He said there was another way to check the authoritarian tendencies and it was by limiting the possibility of “constitutional drift” — in which individual officials or branches of the federal government gradually expanded their authority — by creating “clear structural limitations” on the federal government’s power. Turley, a law professor, called the 10th Amendment an “insurance policy” against the constitutional “mission creep”.
It basically mandates that the default position when the states come into conflict with the federal government “rests with the states", he said. “So, when federal push comes to states' shove, the states are supposed to prevail,” Turley added. “There is nothing particularly ambiguous about that,” USA Today quoted him as saying.
He even said federalism was not designed to combat a contagion but tyranny. According to Turley, the federalist principles say that it is the primary responsibility of the states to deal with pandemics.
Turley was supported by Kathleen Bergin, a law professor at Cornell University. Saying there is no scope of debate over it, Kathleen said: “Trump has no authority to ease social distancing, or to open schools or private businesses. These are matters for states to decide under their power to promote public health and welfare, a power guaranteed by the 10th Amendment to the Constitution."
What top judges said over centuries
Nineteenth-century chief justice of the Supreme Court, John Marshall, had used a ruling on interstate commerce in 1824 to say that ‘police powers’ lied with the states. In the landmark Gibbons v. Ogden case dealing with interstate commerce that year, Marshall wrote: “Quarantine laws 'form a portion of that immense mass of legislation which embraces everything within the territory of a State not surrendered to the General Government’.”
In 1997, the Supreme Court set another precedent to affirm the states' rights. In the Printz v. United States case, Justice Anton Scalia wrote: "The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States' officers, or those of their political subdivisions, to administer or enforce a federal regulatory program." He added: "Such commands are fundamentally incompatible with our constitutional system of dual sovereignty."
As per a 2014 Congressional Research Service report on the issue, the states have quarantine laws on their books and many of them are between 40 and 100 years old, according to a 2014 Congressional Research Service report on the topic. “While the federal government has authority to authorize quarantine and isolation under certain circumstances, the primary authority for quarantine and isolation exists at the state level as an exercise of the state's police power,” the report said, referenced in an analysis by the Constitution Center.
Trump’s words on authority have also sounded contradictory to his earlier positions. The president had earlier cooperated very little with the states when they sought federal help in terms of supply of medicine and equipment to fight the crisis and even left it to the governors to impose lockdowns when pressured to issue a nationwide order. “What the president said directly contradicts his position of the last three weeks,” Turley said.
“One of his most unnerving statements was that governors imposed these orders simply because he let them do it and that he could have declared a national quarantine earlier,” he said. “That's a direct contradiction of what he has previously stated, but, more importantly, what the Constitution states.”
Bergin said Trump was not “powerless” but added that the chief executive doesn’t draw a constitutional authority just by claiming it. She said what the president aims and what he is permitted under the Constitution are different things.
Conflicts between the federal government and the states in the US are not new. During the Civil War, the southern states had invoked the 10th Amendment to claim their right to continue slavery but the northern provinces invoked their own right to not be forced to follow the federal Fugitive Slave Act.