No, President Trump, You Can't 'Reopen America'
If you asked whether the president of the United States had the general power to overrule governors and mayors, I’m sure he would say yes. Putting it in language suitable to his background, I’m sure he believes that the org chart for the business he currently runs — the United States — has him at the top, with governors reporting to and controllable by him. In other words, he is the boss, while they are middle management.
This view of how things work in America surely informs Trump’s topic du jour — “reopening America.” The president clearly stated his vision for how to reopen the country in tweets this morning:
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 & the Federal Government. Let it be fully understood that this is incorrect….
— Donald J. Trump (@realDonaldTrump) April 13, 2020
But this is all wrong, and for several reasons. As an initial matter, the president never “closed” America or its states, so he has no authority to open them. The CDC has issued many different recommendations and guidance about coronavirus — about masks, social distancing, large gatherings, schools, and more. However, the federal government has done nothing to mandate the closures that have devastated the economy and brought about record unemployment.
Rather, that has fallen upon governors and, in some places, mayors. The result has been a patchwork of rules, with most of the country covered by statewide orders, but with eight states stubbornly refusing to do so. The governors and mayors that have issued these shutdown orders have done so based on their own state and local authority. They have not relied on any federal power, nor have they done so after asking permission from the federal government. Instead, they have acted as completely separate entities from one another and the federal government in order to protect the people who live in their states and cities.
What this means for President Trump is that he simply has no power to control this issue. He can stand in front of a camera and urge governors to rescind their orders. He can instruct the CDC to change its recommendations. He can tell federal workers to go back to work. But, what he can’t do is issue a binding order to America’s governors that overrules their independent judgment about what is best for their states. If the governors want to keep their states “closed,” they can do so regardless of how much the president tweets.
The reason for this dates back to the founding of the country. The country’s founders, as one of many ways to prevent the re-creation of the tyranny of the king, separated powers within the federal government, and between the federal government and the states. Importantly, they gave the federal government limited powers over certain national affairs, but allowed the states to have general power over things happening within their borders.
Acting within that authority, governors issued the orders that shut down the economy, which means it’s up to them — not Trump — to rescind those orders. And right now, various groups of governors are talking with each other about how to best get America functioning again while protecting their citizens. Whether that works best as a coordinated effort or an independent effort involves great complexity and remains to be seen, but the power is for the governors, not for President Trump.
Trump’s understanding of the Constitution and the relationship between the federal government and the states is nothing short of a complete rewriting of the basic structure of this country. Recognizing this, Rep. Justin Amash (I-Mich.) responded to Trump’s tweets today by saying that the president “is flat-out wrong” and that he needs to “put down the authoritarianism and read the Constitution.”
But there’s an important third reason why the president doesn’t have the authority to reopen America. Ultimately, the only way America is reopened is if the people agree to do so. To put it in the words that start the Constitution, “We the people” will decide when the country opens back up based on when we feel comfortable going back to school, heading into work, attending sporting events, and shopping in stores.
If we continue to be scared of this virus and the possibility of follow-up waves of infections when restrictions are lifted, then we are the ones who will keep the country shut down and the economy closed, no matter what any politician — governor or president — says. After all, the economy doesn’t function without people working and spending. And, to put a fine point on it, no matter what the president wants for his business friends, he can’t order us to participate in the economy if we don’t feel safe doing so.
If Trump understood and/or believed in the U.S. Constitution, he would realize that this isn’t how it works. But, as political blogger Jeff Tiedrich wrote earlier today in responding to the president’s tweets, “Three years as head of the government and you still have no idea how any of it works.” Trump still thinks he runs a business, not a constitutional democracy.
