Yesterday, President Trump declared his intention to stage a resurrection for the U.S. economy – just in time for Easter Sunday. As he spoke, 17 governors across the country had placed their states on total lockdown, and another 11 had imposed such orders on the hardest-hit portions of their states, setting up a potential test of wills between them and the federal government.
Can President Trump order them to change course? The short answer is no, unless he wants to disregard the Constitution. Here are the basics:
The 10th Amendment to the U.S. Constitution, included in the original Bill of Rights, states that “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.” As University of Texas law professor Bobby Chesney has recently reminded us, the states are independent entities within our system of federalism, not mere subordinate jurisdictions of the national government. In areas reserved to the states, he says, the federal government “cannot coerce the states into taking actions to suit federal policy preference.”
In particular, states enjoy unchallenged primacy in what constitutional scholars call “police powers”—those involving the health, safety, and well-being of their citizens. In exercising these powers, they may require citizens to do things—such as staying at home or getting tested—that some may resist.
As the federal government responded haltingly to the reality of the COVID-19 pandemic, governors across the country stepped forward to set policies for their states’ schools, businesses, and medical facilities. Many turned out to be credible and effective communicators as well, explaining the challenges they face and providing much-needed clarity for a confused and anxious citizenry. The day-to-day contrast between the leadership of governors, from Andrew Cuomo of New York, a Democrat, to Governor Mike DeWine of Ohio, a Republican, has not been lost on the public. In a recent Monmouth poll while 50% think President Trump is doing a good job handling the crisis, substantially more voters, 72%, think their governor is doing a good job.
If Trump thinks he can move to center stage by ending the crisis before the science says he should, he will find it difficult to do so. No federal statute gives the president the authority to override state decisions. Nor does he possess this inherent authority under Article II of the Constitution. Nor do any other provisions of the Constitution (such as the interstate commerce clause) confer this power on him. If governors choose to disregard his call to reopen their states, their decisions will be final, and the President Trump will have to live with them.
Still, there are powers that only the federal government can exercise. As we have seen, the president can restrict international travel, harden the borders, and invoke national emergency powers such as the Defense Production Act. Without federal leadership, the states will have hard time coordinating their policies on the many aspects of the current pandemic that cross state lines.
The federal government is also the only entity that can address medical supply issues that have already begun to generate a zero-sum competition among the states. It does no good to tell New York’s Governor Andrew Cuomo to procure ventilators and respirator masks on his own if not enough are available to meet his needs, let alone national needs. The president can and should lead a national mobilization of businesses and engineers to improvise solutions to the looming shortage of life-saving equipment.
Achieving effective coordination within the federal government, and between the federal government and the states, may be the toughest job of all. A mass-contagion simulation performed last year by the Department of Health and Human Services was the latest to reveal that the federal government would be unprepared and uncoordinated in responding to the kind of crisis that now threatens to overwhelm us. As far as we know, neither executive departments and agencies nor the legislative branch undertook the necessary reforms. The price we paid for this neglect will be measured in time squandered and lives lost.
Federalism is perhaps the most basic structure of our constitutional order. In the aftermath of the national tragedy that is unfolding, we must searchingly reexamine how this system performed under pressure and what we must change to do better next time.
The countries that have done the best to fight the current pandemic learned lessons from past failures and responded with new organizations and policies. There is no reason whatever to believe that this is the last pandemic that will hit us. We can start by taking a simple and inexpensive step: recreating the unit within the National Security Council that was responsible for planning for pandemics that was disbanded in 2018. With such an organization there will be civil servants who know, from day one, the steps that a president needs to take.
If we fail to undertake the necessary reforms between now and the next one, we will have no one except ourselves to blame for the consequences.