A Close Look At President Trump’s Assertion Of ‘Absolute’ Authority Over States

https://www.npr.org/2020/04/14/834460063/a-close-look-at-president-trumps-assertion-of-absolute-authority-over-states

A Close Look At President Trump’s Assertion Of ‘Absolute’ Authority Over States

April 14, 2020

NPR’s Ari Shapiro speaks with Elizabeth Goitein of the Brennan Center for Justice about presidential emergency powers, and President Trump’s assertions of authority amid the coronavirus crisis.

ARI SHAPIRO, HOST:

The president has certain powers in a national emergency like this pandemic. Yesterday, President Trump falsely said that his power is total.

(SOUNDBITE OF ARCHIVED RECORDING)

PRESIDENT DONALD TRUMP: The federal government has absolute power. It has the power. As to whether or not I’ll use that power, we’ll see.

SHAPIRO: Today, he moderated his message saying he’ll work with governors to determine when the country should reopen. Elizabeth Goitein studies presidential power at the Brennan Center. And she’s here to explain where the line is between state and federal authority in moments like this. Good to have you back on the program.

ELIZABETH GOITEIN: Thanks very much for having me.

SHAPIRO: There is always this kind of push-pull between the federal government and the states. In a national emergency like this, does the president have certain powers that he doesn’t ordinarily have?

GOITEIN: He does. When the president declares a national emergency, it gives him access to more than 100 different statutory powers that Congress has granted over the decades. And those powers allow him to do some pretty remarkable things, some rather scary things I would argue. But none of them provides the authority to do what the president was threatening to do here. And that is to require the states to reopen businesses and to lift their stay-at-home orders. So the simple answer to that question is, no, a national emergency does not give him that authority.

SHAPIRO: But you’ve also written about secret emergency powers that the president has had for decades that we don’t actually know what’s in them. Can you explain what those are?

GOITEIN: Yeah. There’s something called a presidential emergency action document. And what that is is a draft order or executive proclamation that is prepared in advance in order to anticipate a wide variety of worst-case scenarios. And so these documents essentially take on hypothetical situations, very bad situations like, for example, the aftermath of a nuclear attack. And they try to anticipate what orders the president might need to order at that time. And those are kind of on standby. I mean, they are there in case the president feels that he needs them. And what’s extraordinary about these documents is their secrecy, their total secrecy. So even the most sensitive military operations or intelligence operations have to be reported to at least some members of Congress. But these documents apparently even Congress has never seen them. So you have to kind of wonder what’s in them.

SHAPIRO: That raises a whole bucket of questions. But I wonder just generally, you know, many people have compared the fight against this pandemic to a war. And legally, a president does get certain extraordinary powers in times of war. Does the analogy translate here? I mean, does he have those war powers in the fight against this disease?

GOITEIN: It’s a really interesting question. I mean, we have heard a lot of comparisons coming from the White House between the fight against COVID-19 and war. The president has said that he’s now a wartime president. But public health crises and war are not the same thing. Under the Constitution, Congress has the power to declare war and the president, as commander in chief, has the power to conduct military operations and to defend against attack. The Constitution doesn’t give either the president or Congress authority over public health. That is one of the powers that’s reserved to the states under the 10th Amendment. Now, Congress does have some ability to legislate on public health as a result of its – of other powers it has over taxing and spending and interstate commerce. So it does share some of these powers with the states, but that’s Congress. The president has no authority over public health beyond what Congress delegates to him. He is not commander in chief of the fight against COVID-19.

SHAPIRO: That’s really interesting. Just in our last minute, I wonder whether you find it odd to see, for the most part, liberals making a states’ rights argument here, which has traditionally been the more conservative position.

GOITEIN: It is really interesting. And I should mention that even though the states are doing the responsible thing here in a situation where the president is not, and so that’s something to be grateful for, there are some advantages to a coordinated response to a pandemic like this one. And ideally, the federal government, not just the CDC and the secretary of Health and Human Services, but the president would be providing the necessary leadership and could assist with interstate coordination. But what we’ve seen is that in the absence of this leadership, the states are doing this on their own. They’re entering into these agreements with one another, and that’s the next best thing.

SHAPIRO: Elizabeth Goitein is co-director of the Brennan Center for Justice’s Liberty & National Security Program.

Thank you for talking with us.

GOITEIN: My pleasure.

April 16, 2020. Tags: , , , , , , , , , . Communism, COVID-19, Donald Trump, Police state. Leave a comment.

Trump says his ‘authority is total.’ Constitutional experts have ‘no idea’ where he got that.

https://www.washingtonpost.com/nation/2020/04/14/trump-power-constitution-coronavirus/

Trump says his ‘authority is total.’ Constitutional experts have ‘no idea’ where he got that.

April 14, 2020

When President Trump was asked during Monday’s news briefing what authority he has to reopen the country, he didn’t hesitate to answer. “I have the ultimate authority,” the president responded, cutting off the reporter who was speaking.

Trump later clarified his position further, telling reporters, “When somebody is the president of the United States, the authority is total and that’s the way it’s got to be. … It’s total. The governors know that.”

The local leaders, Trump said, “can’t do anything without the approval of the president of the United States.”

Trump’s eyebrow-raising assertions about the reach of his office during national emergencies, which were also echoed by Vice President Pence at the briefing, came on the same day governors on both coasts announced their own plans to begin working toward reopening their states amid the ongoing global coronavirus pandemic.

While the president appears convinced he is the only one empowered to make the critical determination, his extraordinary assertions of authority over the states astounded legal scholars, leaving them wondering, as they have before about Trump’s broad claims, where on earth he got them.
“You won’t find that written in the Federalist Papers anywhere,” Robert Chesney, a law professor at the University of Texas at Austin, told The Washington Post.

Not only does the power Trump asserted have no basis in reality, experts said, but it’s also completely antithetical to the Constitution, the concept of federalism and separation of powers — whether during a time of emergency or not.

“This isn’t ancient Rome where there’s a special law that says in the event of an emergency all the regular rules are thrown out the window and one person, whom they called the dictator, gets to make the rules for the duration of the emergency or for a period of time,” Chesney said. “We don’t have a system like that.”

On Twitter, Steve Vladeck, another professor at the University of Texas School of Law, rebutted Trump’s “authority is total” remark.
“Nope,” Vladeck wrote. “That would be the literal definition of a *totalitarian* government.”
Trump: “When somebody is president of the United States, the authority is total.”

Nope.

https://twitter.com/steve_vladeck/status/1249835579153485825

Various Democrats and Republicans appeared to be in agreement on this basic democratic principle. Rep. Liz Cheney (R-Wyo.) tweeted the full text of the 10th Amendment, which says any powers not specifically delegated to the federal government in the Constitution are reserved to the states. The federal government, she said, “does not have absolute authority.”

Appearing on CNN, New York Gov. Andrew M. Cuomo (D) scoffed at that idea as well, telling host Erin Burnett, “You don’t become king because there’s a federal emergency.”

https://twitter.com/Liz_Cheney/status/1249845408127488000

Josh Blackman, a constitutional law professor at the South Texas College of Law Houston, told The Post that if Trump were to call up Cuomo tomorrow and order him to send everyone back to work, Cuomo could easily tell Trump to “get lost, and that would be his prerogative.”

It’s the most basic tenet of federalism, he said: “The federal government can’t give orders to governors. That’s a very simple fact of life.”
At least one former governor took Trump’s side: Vice President Pence, who offered a forthcoming legal brief on the subject at the news conference Monday.

“Make no mistake about it, in the long history of this country, the authority of the president of the United States during national emergencies is unquestionably plenary,” Pence said.

https://twitter.com/steve_vladeck/status/1249874928159121409

Blackman said he had “no idea” what law or legal precedent Trump believed granted him such sweeping authority, because none do. He said there is a long history of presidents using “creative arguments” to assert executive authority during wartime or emergencies — but contrary to Pence’s assertion, there is not a long history of presidents getting away with nearly unfettered authority. There is no “emergency clause” in the Constitution for presidential power, he said.

Case in point: During the Korean War, President Harry Truman declared a national emergency and seized private steel mills to preempt a steelworkers’ strike, arguing that the mills were essential to the national defense. The Supreme Court, in a case called Youngstown Sheet & Tube Co. v. Sawyer that continues to guide the courts today, stopped Truman in his tracks.

That was before the National Emergencies Act of 1976, which did give presidents authority to declare a national emergency without the prior approval of Congress. Still, Vladeck stressed in an email to The Post that while presidents “do and should have broad powers to respond to crises, broad is not the same as ‘total.’ ”

In this case, he said, it’s critical to remember that Trump never issued any kind of national lockdown order like other countries did. Trump thus cannot reopen something he never shut down. Vladeck said he does not believe that Trump would have had the authority to do that anyway. At most, he said, Trump might have been able to ban interstate travel under the Public Health Service Act.

“But for better or worse, the president has left most of the big decisions to local and state authorities. That makes it only that much harder for him to try to override them,” Vladeck said.

Blackman and Chesney said the president is free to issue “guidelines” urging states to go back to work, but the states are also free to ignore them.
Trump, if he were to act on his impulses, would probably discover that states and local governments “don’t work for him,” Chesney said, but he stressed that Trump’s sweeping assertions need to be kept in check before he gets to that point.

The federal system created by the framers of the Constitution divided power between the national and state governments. While the Constitution’s supremacy clause means acts of Congress can override the laws of states, the same does not apply to the president acting unilaterally.

As a result, various police powers, as well as authority over functions such as zoning and regulation of business, belong to the states because the Constitution does not grant them to the federal government. The states, in turn, are constrained by the constitutional grant of the power to regulate interstate commerce, for example, and the Bill of Rights.

The federal government has exerted its greatest power over the states by withholding or threatening to withhold money from recalcitrant states, though even that authority has been limited by the Supreme Court.

Trump has made many extreme claims of power, previously declaring that Article II of the Constitution, which vests executive power in the president, gives him “the right to do whatever I want.”

“On the one hand, we shouldn’t freak out over every blustering claim of power he asserts, but on the other hand, there’s something very harmful in failing to rebut those claims every time they happen,” Chesney said Monday. “There are plenty of people who will credit what he says, and if he repeatedly asserts he has such powers perhaps, that will help him get away with asserting powers he should not have.”
Ultimately, Vladeck said, the real problem only begins if Trump’s claims to nearly boundless power are left unchallenged through the system of checks and balances by the courts or Congress.

“It’s not a crisis when a president claims powers unfettered by those constraints, and unconfined by written law and settled precedent,” he said. “It’s a crisis when those other institutions don’t push back.”

April 16, 2020. Tags: , , , , , , , , , . Communism, COVID-19, Donald Trump, Police state. Leave a comment.

Here’s what the Constitution’s 10th Amendment says about Trump’s claim to have total authority over states

https://www.usatoday.com/story/news/politics/2020/04/14/trump-claim-total-authority-claim-10th-amendment/2988013001/

Here’s what the Constitution’s 10th Amendment says about Trump’s claim to have total authority over states

April 14, 2020

While discussing whether he or the nation’s governors have the power to lift restrictions states put in place to fight the spread of the coronavirus, President Donald Trump declared at a news briefing Monday, “When somebody’s president of the United States, the authority is total.”

The president’s unprecedented claim of total power met with immediate pushback from Democrats and Republicans, many of them arguing the U.S. Constitution explicitly refutes his claim to absolute authority.

“The federal government does not have absolute power,” said Rep. Liz Cheney, R-Wyo., who went on to quote the text of the 10th Amendment in a tweet that went viral.

Sen. Marco Rubio, R-Fla., said changes to the social-distancing orders should be made by the governors. Federal guidelines “will be very influential. But the Constitution & common sense dictates these decisions be made at the state level,” he tweeted.

Jonathan Turley – a law professor at George Washington University who argued against Trump’s impeachment before the House Judiciary Committee and a USA TODAY contributor – said the framers wrote the Constitution precisely to bar presidents from claiming the type of authority asserted by Trump.

“Our constitutional system was forged during a period of grave unease over executive authority. After all, the nation had just broken away from the control of a tyrant,” Turley said. And if there is “one overriding principle” in the Constitution, it is to avoid the concentration of power, and it does so “in myriad ways,” he said.

The 10th Amendment was one instrument written to help ensure that the federal government would not be able to impose the kind of absolute authority the framers feared.

https://twitter.com/JonathanTurley/status/1249837933038837760

What the 10th Amendment says

“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.”

What it means

Turley said federalism, in which states are granted a large degree of autonomy, was one of the ways the framers sought to avoid authoritarianism. The other was to limit the possibility of “constitutional drift” – in which individual officials or branches of the federal government slowly expand their authority – by creating “clear structural limitations” on the powers of the federal government.

He described the 10th Amendment as an “insurance policy” against such constitutional “mission creep.”

“It basically mandates that the default position” in conflicts between the states and the federal government “rests with the states,” he said, “So, when federal push comes to states’ shove, the states are supposed to prevail.”

“There is nothing particularly ambiguous about that.”

Kathleen Bergin, a law professor at Cornell University, agreed.

“It’s so plain and obvious it’s not even debatable,” Begin 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.”

How it applies to the coronavirus outbreak

“Federalism was not designed to combat a contagion, it was designed to combat tyranny,” Turley said. But according to the principles of federalism, it is the “primary responsibility of the states to prepare for and to deal with pandemics” such as this, he added.

Previously, Trump denied it was his responsibility to supply the states with the medicine and equipment needed to contain and treat the virus when asked about governors’ complaints that the federal government was not doing enough to help them. And when pressured to issue a nationwide stay-at-home order, Trump said he preferred to leave it up to each governor to impose such restrictions.

“What the president said directly contradicts his position of the last three weeks,” said Turley, who has written columns supporting Trump’s previous approach.

“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,” Turley 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,” however.

“He could lift international travel restrictions and issue directives to the military or federal agencies,” she said. “But he doesn’t get constitutional authority simply by claiming it. What he tries to do and what he’s authorized by the Constitution to do are two different things.”

No statutory power when it comes to social distancing
Charles Fried, who has taught at Harvard Law School since 1961, strongly disputed the idea that the 10th Amendment was relevant to Trump’s claim of total authority and said the real issue was that Congress had not passed any law granting Trump authority to order a national quarantine or stay-at-home directive.

Fried said the 10th Amendment was a “bogus concern” in this instance and anyone making that argument is “barking up the wrong tree” or is a “10th Amendment nut.”

“People like Cheney just want to bring federalism into everything, but it’s not a federalism problem,” Fried told USA TODAY.

Fried said the problem was really in the fact that Congress hadn’t given Trump the power that he claimed. But he said it theoretically could under its authority to regulate business as outlined in Article 1, Section 8 of the Constitution.

“And that’s why I don’t like referring to the 10th Amendment. It’s not really a 10th Amendment issue. It’s a rule of law issue,” Fried said. “The president can’t just say, ‘I am the boss.'”

Fried pointed to the 1952 Supreme Court case of Youngstown Sheet & Tube Co. v. Sawyer in which the court ruled President Harry Truman did not have the power to take control of the nation’s steel mills despite a labor strike that threatened production during the Korean War.

“The President’s power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself,” wrote Justice Hugo Black.

How would Trump enforce it?

David Cole, the national legal director for the American Civil Liberties Union, told USA TODAY that even if Congress passed a law granting the president the authority to implement a national curfew, quarantine or stay-at-home order, and it survived constitutional challenges, Trump would not be able to compel the states to enforce it.

Under what is known at the “anti-commandeering principle” the courts have ruled that states don’t have to use their resources or law enforcement officials to enact federal programs.

For example, in the 1997 case Printz v. United States, the Supreme Court ruled a provision of the Brady Handgun Violence Prevention Act, which required background checks for handgun sales, was unconstitutional under the 10th Amendment because it required local law enforcement officers to carry out the background checks.

“He could not direct the mayor of New York, or the governor of New York to carry out that program,” Cole said. Trump could ask the National Guard to carry it out, or the FBI, but not state or local officials, Cole said.

So, despite the president’s claims, his authority is far from total, Cole and other legal experts agreed.

“He can only execute laws that Congress has passed, and Congress can only pass laws that are authorized by the Constitution,” Cole said.

April 16, 2020. Tags: , , , , , , , , , . Communism, COVID-19, Donald Trump, Police state. Leave a comment.

Fact check: Trump falsely claims the president has ‘total’ authority over coronavirus restrictions

https://www.cnn.com/2020/04/14/politics/fact-check-trump-president-total-authority-coronavirus-states/index.html

Fact check: Trump falsely claims the president has ‘total’ authority over coronavirus restrictions

April 14, 2020

Washington (CNN)President Donald Trump falsely claimed on Monday that, as President, he has “total” authority to decide to lift restrictions governors have imposed to fight the coronavirus pandemic.

“When somebody’s the President of the United States, the authority is total, and that’s the way it’s got to be,” Trump said at a bitter White House coronavirus briefing.

Trump then said: “The authority of the President of the United States having to do with the subject we’re talking about is total.” And after speaking about local governments, he said, “They can’t do anything without the approval of the President of the United States.”
It wasn’t clear if he was referring to state or local officials with that assertion. But he was wrong regardless.

Facts First: The President does not have “total” authority over coronavirus restrictions. Without seeking or requiring Trump’s permission, governors, mayors and school district officials imposed the restrictions that have kept citizens at home and shut down schools and businesses, and it’s those same officials who have the power to decide when to lift those restrictions. There is no legislation that explicitly gives the President the power to override states’ public health measures. In addition, Trump said last week that he prefers, because of the Constitution, to let governors make their own decisions on coronavirus restrictions.

We can’t say for sure that the courts would not side with Trump if he attempted to challenge state restrictions on some constitutional grounds he has not yet identified. However, many legal scholars believe Trump would lose.
James Hodge, a professor and director of the Center for Public Health Law and Policy at Arizona State University, said Trump is “wrong” to claim he has the power to lift the states’ coronavirus restrictions.

“He can strongly encourage, advise, or even litigate whether states’ authorities to restrict public movements re: shelter in place or stay home orders are warranted, but cannot tell sovereign governors to lift these orders all at once just because the federal government determines it is high time to do so,” Hodge said in an email.

Trump’s Monday evening comments at the briefing echoed tweets from earlier in the day in which he asserted that “it is the decision of the President,” not governors, on when to “open up the states.”

“This tweet is just false. The President has no formal legal authority to categorically override local or state shelter-in-place orders or to reopen schools and small businesses. No statute delegates to him such power; no constitutional provision invests him with such authority,” Stephen Vladeck, a University of Texas law professor and CNN legal analyst, said on Twitter on Monday.

Trump did not personally shut down the economy. Rather, he issued non-binding guidelines on how people should keep their distance from each other. The guidelines begin as follows: “Listen to and follow the directions of your STATE AND LOCAL AUTHORITIES.”

No legislation says the President has the power to overturn the public health decisions of these authorities, Vladeck and other legal scholars say.
Trump did not explain why he believes he has this power. When CNN’s Kaitlan Collins asked him who told him he has “total” authority, he did not answer directly, instead saying, “We’re going to write up papers on this.”

When another reporter explained that the Tenth Amendment to the Constitution grants to states the powers not delegated to the federal government, Trump did not contest this interpretation — and instead sidestepped the question, saying he did not believe a state official who refused to reopen the economy could win reelection.

Trump-friendly website Breitbart broached the possibility that Trump could try to use the Constitution’s Commerce Clause, which gives Congress the power to regulate interstate commerce, to try to lift commercial restrictions.

Robert Barnes, a lawyer who supports Trump, argued to CNN on Monday that, “in the emergency context,” the President possesses these commerce powers the Constitution assigns to Congress.

Vladeck said Barnes’ claim is unfounded. While Vladeck said Congress might be able to pass a law authorizing the President to override some state and local restrictions — he emphasized the “might” — he said Trump does not have the power to override the restrictions on his own.

“Congress has delegated the President a bunch of powers for emergencies, but this isn’t among them,” Vladeck told CNN.

Hodge said states have a long-established authority to restrict some commerce for the protection of public health. And it is widely understood that state governments have the power to address public health emergencies within their states.

In a 2014 report, the Congressional Research Service, which provides nonpartisan research and analysis to Congress, looked at federal and state powers over quarantine and isolation. The report did not specifically address the question of a president wanting to override state public health measures, but it noted: “In general, courts appear to have declined to interfere with a state’s exercise of police powers with regard to public health matters ‘except where the regulations adopted for the protection of the public health are arbitrary, oppressive and unreasonable.'”

While both the Congressional Research Service report and the National Conference of State Legislatures say that the federal government can “take over” the management of a public health incident within a state “if the federal government determines local efforts are inadequate,” they do not specifically address a situation in which the federal government wants to take over because it believes the state is being too strict in trying to address the emergency.

Trump has some power

Trump himself has spoken as recently as last week about states’ constitutional powers during the pandemic, though he has asserted that he too has powers.

After he was asked on April 10 about the possibility of Florida’s governor opening up schools in May, the President said: “I like to allow governors to make decisions without overruling them, because from a constitutional standpoint, that’s the way it should be done. If I disagreed, I would overrule a governor, and I have that right to do it. But I’d rather have them — you can call it ‘federalist,’ you can call it ‘the Constitution,’ but I call it ‘the Constitution.’ I would rather have them make their decisions.”

Trump does have some clear, though limited, direct power. For example, he can order federal employees to return to their offices and reopen national parks and other federal property.

And he can, obviously, use his influence to try to persuade governors — and citizens — to do as he wishes.

It is also possible that Trump could try to leverage the “major disaster declaration” he has issued for each state — for example, attempting to require governors to take certain steps in exchange for federal assistance. Hodge, though, said it “could be unconstitutional” to try to impose new conditions for the receipt of federal funding after having already authorized the disaster declarations without such conditions.

Trump also asserted at the briefing that even Democratic governors would agree with his claim to total authority. New York Democratic Gov. Andrew Cuomo, speaking shortly after the briefing to CNN’s Erin Burnett, said he disagreed: “We have a Constitution. We don’t have a king.”

April 16, 2020. Tags: , , , , , , , , , . Communism, COVID-19, Donald Trump, Police state. 1 comment.

Trump’s Claim of Total Authority in Crisis Is Rejected Across Ideological Lines

https://www.nytimes.com/2020/04/14/us/politics/trump-total-authority-claim.html

Trump’s Claim of Total Authority in Crisis Is Rejected Across Ideological Lines

Trading barbs with governors about their powers over when to ease restrictions on society, the president made an assertion that lacks a basis in the Constitution or federal law.

By Charlie Savage

April 14, 2020

WASHINGTON — President Trump’s claim that he wielded “total” authority in the pandemic crisis prompted rebellion not just from governors. Legal scholars across the ideological spectrum on Tuesday rejected his declaration that ultimately he, not state leaders, will decide when to risk lifting social distancing limits in order to reopen businesses.

“When somebody’s the president of the United States, the authority is total,” Mr. Trump asserted at a raucous press briefing on Monday evening. “And that’s the way it’s got to be.”

But neither the Constitution nor any federal law bestows that power upon Mr. Trump, a range of legal scholars and government officials said.

“We don’t have a king in this country,” Gov. Andrew M. Cuomo of New York said on Tuesday, adding, “There are laws and facts — even in this wild political environment.” He rebutted Mr. Trump’s claim by citing a line from Alexander Hamilton, observing that presidential encroachment on powers that the Constitution reserved to the states would be “repugnant to every rule of political calculation.”

Mr. Cuomo is a Democrat, but even some of the most outspoken Republican supporters of a generally sweeping vision of presidential power agreed that Mr. Trump’s claim was empty.

John Yoo, a University of California, Berkeley, law professor known for writing much-disputed Justice Department memos after the Sept. 11 attacks claiming that President George W. Bush, as commander in chief, had the power to override legal limits on torture and surveillance for the war against Al Qaeda, said Mr. Trump could not force states to reopen.

“Only the states can impose quarantines, close institutions and businesses, and limit intrastate travel,” Mr. Yoo wrote in The National Review. “Democratic governors Gavin Newsom in California, Andrew Cuomo in New York, and J.B. Pritzker Illinois imposed their states’ lockdowns, and only they will decide when the draconian policies will end.”

Vice President Mike Pence — who styled himself as a strong proponent of states’ rights when Barack Obama was president — was a lonely voice backing Mr. Trump. “In the long history of this country,” he said on Monday, “the authority of the president of the United States during national emergencies is unquestionably plenary.”

The Constitution bestows specific powers on the federal government while reserving the rest to sovereign state governments. None of the enumerated powers given to the federal government directly address control over public health measures, although the Constitution does let Congress regulate interstate commerce.

Both a pandemic and social distancing measures that require the closure of businesses, to be sure, affect interstate commerce. But even if the federal government in theory could have more power in this area, it would take an act of Congress to bestow it on the presidency.

Lawmakers have created some executive powers relevant to the crisis — including enabling an administration to take steps to keep illness from spreading across state lines and to mobilize industry to ramp up production of needed goods in a public health crisis. But they have passed no statute purporting to give the presidency pre-eminence over governors on rescinding public health limits inside states.

Similarly, while Mr. Trump declared a national emergency over the pandemic, that did not mean he was tapping into some reservoir of limitless constitutional power. Rather, he was activating specific statutes that Congress has enacted creating particular standby powers, none of which include letting a president overturn state-imposed public health safety measures.

In a 1952 case involving President Harry S. Truman’s seizure of steel mills to avert a strike during the Korean War, the Supreme Court rejected his effort to invoke purported “inherent” constitutional power to resolve the crisis using different tools than Congress had provided.

And even if Congress were to now enact a law giving Mr. Trump that power — which is unlikely, with the House in the hands of Democrats — there would still be legal obstacles. The Supreme Court over the last generation has pushed back when Congress has enacted laws that the court sees as federal commandeering of states’ authority.

“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,” Justice Antonin Scalia wrote in a 1997 Supreme Court ruling.

On Tuesday, Mr. Trump appeared to seek a face-saving way out, saying he was “authorizing” governors to decide for themselves when to reopen their states. He offered no explanation for the implication that his permission was necessary before they could lift their own orders.

For Mr. Trump, the legal emptiness of his assertion fits with a larger pattern in his handling of the pandemic and more. Where President Theodore Roosevelt liked to invoke an African proverb to describe his approach to wielding executive power — “speak softly and carry a big stick” — Mr. Trump sometimes talks as if he has a big stick but with little to back it up.

Despite his “extreme, proud rhetoric about how he can do whatever he wants,” said Jack Goldsmith, a Harvard law professor and senior Justice Department official in the George W. Bush administration, the story of the Trump presidency has been, with few exceptions, “talking a big game, but not in fact exercising executive power successfully.”

Mr. Trump has made greater use of a softer power of the presidency: using his pre-eminent position and the attention he commands for public persuasion, which Roosevelt called the bully pulpit. But Mr. Trump used it at first to play down the crisis, rather than issuing a call to action to galvanize the country to more swiftly take steps like ramping up testing capacity and consider imposing social distancing measures.

Some legal experts theorized that Mr. Trump could try to use the federal government’s control over disaster relief funds and equipment to punish states whose governors reject a hypothetical future White House declaration that it is time to open up.

He could, for example, try to allocate more equipment to states whose governors acquiesce to his desires, which would inevitably lead to litigation. Even so, as Mr. Yoo wrote, such punitive measures are politically unlikely to move Democratic governors in hard-hit areas to reopen their economies before public health experts say it is safe.

Mr. Trump demurred when pressed to say who told him he wielded “total” authority, and his administration has put forward no legal theory.

Some White House officials expressed uncertainty about what the president was relying on. But others pointed to Article II of the Constitution, which creates the presidency and which Mr. Trump has often invoked, and several statutes creating certain public health powers. None of those statutes they cited say a president has total authority to force governors to lift pandemic restrictions.

Indeed, numerous legal scholars rejected Mr. Trump’s claim as baseless, including Jonathan Turley, a George Washington University law professor who testified in the president’s favor during the impeachment inquiry.

“The Constitution was written precisely the deny that particular claim,” Mr. Turley wrote on Twitter.

Complicating the task of parsing the president’s intentions, he often appears to float striking and self-aggrandizing ideas off the cuff, causing consternation before he drops them.

On March 28, for example, he abruptly suggested that he might impose a federal quarantine on the New York City area before reversing course hours later.

It was never clear what he was talking about. While Congress has granted the federal government some power to take steps to prevent the transmission of illness into the country or between states, the virus was already everywhere by then, so sealing state borders would not have kept it contained. And a quarantine that would confine large populations to their homes within a state is widely understood to be a state-level decision.

Yet despite punctuating his performance with claims of his own might, Mr. Trump has repeatedly made less-than-aggressive use of undisputed authorities at his disposal to combat the pandemic.

For example, he has repeatedly boasted about shutting down travel from China in February, using the power that Congress granted to the presidency to control the international border in a public health emergency.

But despite Mr. Trump’s claims that he was the first to take that action, 38 other countries had already put in place such a travel ban. And the American version was limited and porous.

And as it became clear in March that hospitals were hindered by shortages of masks and other equipment, Mr. Trump resisted growing calls to make use of another power Congress gave the presidency for use in a national emergency: to coerce factory owners to change what they are manufacturing under the Defense Production Act.

In late March, Mr. Trump finally declared that he was invoking the law — but he had merely delegated to Alex M. Azar II, the secretary of health and human services, the ability to invoke that law in theory. No company had been ordered to do anything.

As criticism over Mr. Trump’s inaction swelled, he signed an order telling Mr. Azar to use the law to push General Motors to make ventilators. But G.M. said it had already decided by then to make ventilators in partnership with Ventec, developed plans to source the necessary parts and started preparing a factory in Kokomo, Ind., for production.

Mr. Trump has a history of making head-turning claims about his powers in other contexts. During the Russia investigation, for example, his lawyers argued that he could not be guilty of obstruction of justice because his power over the Justice Department was absolute, and Mr. Trump repeatedly claimed he could fire the special counsel, Robert S. Mueller III, if he wanted — even directly.

“Article II allows me to do whatever I want,” he said.

Yet as the eventual report by Mr. Mueller showed, in practice Mr. Trump’s power was weak. He pushed subordinates to oust the special counsel, but they would not go along.

Mr. Goldsmith said that Mr. Trump’s approach to the pandemic crisis and more had reflected a general pattern of loud words but incompetently executed action on policies that were more complex than basic tasks like issuing pardons and firing people, bogging down his efforts in court battles and dysfunction rather than clear accomplishment.

“Trump wants it to seem like he is this really powerful guy being really aggressive with executive power, but he’s not,” Mr. Goldsmith said. “There has been a huge mismatch between his rhetoric and his actions. He clearly seems to enjoy how people’s heads explode when he says this stuff, even though it’s not matched by reality.”

April 16, 2020. Tags: , , , , , , , , , . Communism, COVID-19, Donald Trump, Police state. 1 comment.