Trump’s Presidential Powers Do Not Erase State Police Powers

A press conference held on Monday, April 13, 2020, by President Donald Trump, sparked much debate throughout the country regarding who has the final say of when states must open back up. According to the National Governors Association, 41 states have required all non-essential businesses to close and at least 41 states have issued mandatory stay-at-home orders.

President Trump has expressed a desire for some of these states to open back up as early as May 1 and believes he has the absolute power to decide for the states if need be. During the April 13^th press conference, Trump stated:

“The president of the United States has the authority to do what the president has the authority to do, which is very powerful…When somebody is the president of the United States, the authority is total. That’s the way it’s got to be.”

Vice President Mike Pence, former Indiana Governor, agrees with President Trump’s assertion that he has the absolute power to make the decision for the states if he chooses to. According to Pence, “in the long history of this country, the authority of the president of the United States during national emergencies is unquestionably plenary.”

Why Experts Say Trump’s Claims Are Hollow

Although the president and vice president confidently assert that President Trump has absolute power during this pandemic, scholars and constitutional law experts disagree with the statements made during the April 13^th press conference. Many scholars and constitutional experts are basing their reasoning off of the Tenth Amendment of the United States Constitution, which states:

“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 Tenth Amendment gives the states police power to establish and enforce laws protecting the welfare, safety, and health of the public. In an interview with the IndyStar, Gerard N. Magliocca, a professor at the Indiana University Robert H. McKinney School of Law and a constitutional law expert, stated that the simplest reason why the president can’t unilaterally lift stay-at-home orders is because the president never issued a national order.

An IndyStar article quotes Magliocca stating, “A national lockdown was not even attempted. How could there be a national order to open?” The IndyStar article further went on to state that constitutional law expert Magliocca stated that the National Emergencies Act of 1976 gives presidents greater power, but that power generally involves the mobilizing of funding and supplies needed by the states during an emergency.

According to Magliocca, the president’s emergency powers do not apply to reopening the country after shutdowns. Magliocca states:

“The question here is about well, when should you reopen your skating rinks or your stores or your parks? Those are decisions that local officials make all the time and they are the ones empowered to do it. The federal government has no power to do so. You can’t find it in the Constitution, you can’t find it in the history of the United States.”

Other scholars, such as Robert Chesney, seem to agree with Magliocca’s point of view. Robert Chesney is a Professor in Law and Associate Dean for Academic Affairs at the University of Texas School of Law. His scholarship has encompassed a wide range of issues relating to national security and the law. Chesney discusses the president’s authority during this national emergency in his article, “Can the Federal Government Override State Government Rules on Social Distancing to Promote the Economy?”

In his article, Chesney discusses the federal structure and states that federal law is supreme over state law in our system. However, as stated in the Tenth Amendment, if a power is not expressly granted to the federal government through the Constitution, and not expressly prohibited by the states, then the states reserve those powers. This means that if there is a constitutional federal law that is contradicted by a state or local rule, then federal law prevails.

As Chesney states, though, “it does not follow that President Trump can, therefore, override state and local rules on matters like shelter-in-place.” Chesney further explains, “First, no currently existing statute plausibly can be read to confer such an authority on the president. The Stafford Act, the Defense Production Act, the Public Health Service Act, and the various statutes triggered by a declaration under the National Emergencies Act – none of these come close to authorizing something like this.”

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It seems as though most scholars and constitutional experts have concluded that the president does not have the authority to override states and force them to open up before state governors decide to do so on their own. While President Trump does have broad authority during a national emergency, those powers, as stated by constitutional expert Magliocca, generally involve the mobilizing of funding and supplies needed by the states during an emergency. As stated before, the Tenth Amendment gives states police power to establish and enforce laws in order to protect the welfare, safety, and health of the public. Many state governors have announced that if President Trump attempts to declare a national order requiring states to open up before they are ready, it is unlikely that state governors will comply with these orders.

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