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Trump finds little support for ‘total authority’ claim

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Via Financial Times

Donald Trump’s claim that he has “total authority” to reopen the US economy has put him at odds with the state governors whose “stay at home” orders he is eager to lift — as well as the weight of US constitutional history. 

Mr Trump has appeared to relish the politics of the fight over how and when to ease restrictions designed to stop the coronavirus pandemic, even if he is on shaky legal ground. On Tuesday, he tweeted pointedly at Democratic state governors that “Mutiny on the Bounty” was one of his “all-time favourite movies”.

“A good old fashioned mutiny every now and then is an exciting and invigorating thing to watch, especially when the mutineers need so much from the Captain. Too easy!” he said.

Here’s what you need to know.

What has Mr Trump said?

On Monday, Mr Trump said that he had effectively unrestrained power to open or close the US economy.

“When somebody is the president of the United States, the authority is total,” he said. Later, he declared: “The federal government has absolute power.”

The comments contrasted with his position just a week earlier when he noted a “constitutional problem” with ordering governors who had not yet issued stay-at-home orders to do so. 

Mr Trump has also previously put the onus on states, not the federal government, to get the supplies they need to fight the pandemic. In an April 2 tweet, the president said that the federal government was just “a back-up” for states in terms of securing gear. 

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What does the constitution say?

The US constitution divides power between the federal government and the states. In particular, the 10th amendment says that any power not specifically given to the federal government resides with the 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.”

This federalist division of power is seen as a key protection of freedom in the US constitutional system, including by William Barr, Mr Trump’s attorney-general.

Last week, when asked on Fox News about lockdowns imposed by state and local officials, Mr Barr said that having “the government closest to the people make those decisions” was a “form of protecting liberty”.

Quarantine powers in a pandemic have long been the reserve of the states, not the federal government. In 1824, the Supreme Court said that such public health measures “form a portion of that immense mass of legislation which embraces everything within the territory of a state not surrendered to the general government”.

Any order by Mr Trump could be challenged in the courts. Andrew Cuomo, New York governor, has said he would not obey a directive from the president to reopen his state if he felt the time was not right. 

Mr Trump’s assertions that authority actually lay with him would be “a pretty radical shift if it were ever accepted by the courts”, said Ilya Somin, a law professor at George Mason University.

“It would set a very dangerous precedent if the president could just override the states by decree,” he said.

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Does Trump have emergency powers?

On Monday, Mike Pence, the vice-president, pointed to the national emergency declaration that Mr Trump signed in March as giving the president broad authority.

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

Presidents have controversially claimed draconian powers in wartime through their position as commander-in-chief. Abraham Lincoln suspended habeas corpus — the right to appear before a court — during the Civil War, for example.

However, the coronavirus pandemic is not a war, and the National Emergencies Act under which Mr Trump declared an emergency does not grant unrestrained powers, said Elizabeth Goitein, a co-director of the Brennan Center’s national security programme.

“When the president declares a national emergency that gives him access to specific authorities that Congress has granted him, and only those authorities,” she said.

“None would enable the president to order states to reopen businesses and to lift their stay at home orders,’ she added.

Congress, which the constitution grants the power to regulate interstate commerce, could potentially pass a law that gives the president the authority to order states to lift restrictions on businesses. So far, it has not done so.

Has the president’s party supported his claims?

Some lawmakers in the Republican party — which has positioned itself in recent years as a champion of states’ rights against federal government over-reach — have pushed back against the president.

Liz Cheney, a top Republican in the House of Representatives, quoted the 10th amendment in a tweet on Monday and said: “The federal government does not have absolute power.”

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Rand Paul, the Republican senator from Kentucky with libertarian views, went further on Tuesday, saying that “the constitution doesn’t allow the federal [government] to become the ultimate regulator of our lives because they wave a doctor’s note”.

“Powers not delegated are RESERVED to states & the PEOPLE. If we dispense with constitutional restraints, we will have more to worry about than a virus,” he tweeted.

John Yoo, a former George W Bush administration official who helped create the legal authorisation for the use of torture, wrote on Monday:

“[O]ur federal system reserves the leading role over public health to state governors . . . only they will decide when the draconian policies will end.”

Mr Yoo wrote the president would have to rely “less on command and more on persuasion” — for instance, wielding federal coronavirus resources as an incentive, or using the bully pulpit of the presidency to make his views known. 

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