Considering that he took an oath at his inauguration, an oath literally written into Article II of the Constitution, to “preserve, protect and defend the Constitution of the United States,” President Donald Trump’s ignorance of the Constitution, and the powers and duties of the president under it, and the limits on those powers, are truly… groping for a word here … Scary? Pitiful? Megalomaniacal?
How wrong was Trump about the limits on his powers this week? OMG. Not really surprisingly, but frighteningly wrong. The man is three months into the fourth year of a four-year term in the job and either no one has told him how the U.S. system of government works, or he wasn’t wearing his quiet and attentive hat the day they did.
Here is what Trump said during his Monday televised rant about whether governors of the 50 states had anything to say about whether and when they will decide to relax the various stay-at-home orders they have issued to deal with the COVID-19 pandemic. Please read this carefully. It’s frightening to think that Trump thinks this (or did until someone told him how wrong he was):
The president of the United States calls the shots. [The states] can’t do anything without the approval of the president of the United States. … 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.
No, the governors don’t know that, because it isn’t even slightly true. He didn’t hire them. He can’t fire them. And he can’t make them do things in their states that they don’t want to do and/or don’t believe are in their states’ interests. The 50 state governments are not his to command. What I wrote above about how wrong that statement was (scary? pitiful? megalomaniacal?) was not just me venting my feelings about him.
How much so? So much so that even His Highness Himself has been told and apparently even half-assedly accepted that he was wrong.
In the 24 hours after his claim of total authority to tell governors whether, when and how to reopen their states for business and other activities, someone in his operation apparently explained to the self-titled “very stable genius” that the governors of the states are actually elected by the people of their own states to lead those states’ governments. They are not his hirelings and he is not their boss. He can’t fire them; he has impressively little authority to tell them how to run their states.
So on Tuesday he rephrased his claim of the day before that he has “total authority” to boss the governors around on matters of governing their own states.
Trump said he would “be authorizing each individual governor of each individual state to implement a re-opening and a very powerful re-opening plan of their state at a time and in a manner as most appropriate. … I’m not going to put any pressure” on any state to reopen before governors feel they’re ready, said Trump, who somehow managed to get the words “very powerful” in a random spot in his sentence that no longer said he had the formerly asserted power to tell them what to do about closing opening schools, businesses or major league ballparks in their states while they are battling the spread of the COVID virus.
He also said some states may be ready to step away from CDC social distancing guidelines, which are supposed to last through the end of the month, before May, and he’d “authorize” them to do so. That “authorize” comes across as a last desperate effort to imply that he had the power to not authorize them.
By coincidence, in the time between Trump’s I-tell-governors-how-to-run-their-states and his I-authorize the-governors-to-do-what-they-think-best-for their-states, I happened to cover (by Zoom, from a very safe distance, over my computer) a talk by Erwin Chemerinsky, dean of the University of California Law School and highly esteemed constitutional scholar. The talk was titled “A Constitutional Examination of the COVID-19 Pandemic.”
Because the audience was mostly legal scholars, and because Trump had made his constitutionally illiterate claim of absolute authority over states just the previous day (and not yet, shall we say, clarified it as he did later that day), the scholars almost immediately asked Chemerinsky what he made of Trump’s claim that he could tell the governors what to do in such matters.
The powers of the federal government over state authority are actually “quite limited,” Chemerinsky said, and they are limited to powers specified in the Constitution.
In claiming that he had “total authority” over state decisions on ordering businesses to stay closed or re-open, “the president is just plain wrong here,” Chemerinsky said. ”The federal government has no constitutional or statutory authority to overrule state or local governments and order them to order businesses to close or to stay open.”
Nothing in the Constitution nor in any federal statute remotely gives the president that authority, Chemerinsky said, and there are actually federal statutes that make it clear this is not a federal power. He said that any congressional effort to assert a federal power such as the one Trump claimed would “certainly be repugnant to the Supreme Court.”
Forgive me if any of the quotes above are not perfect. Monitoring the meeting over Zoom I couldn’t figure out a way to tape it, but I took pretty good notes. I’m quite certain Chemerinsky said “repugnant.”
Toward the end, Chemerinsky was asked whether an emergency declaration might create a situation in which the existing constitutional limits on unilateral presidential power might be overcome. According to my notes, he replied: “The Constitution is just as important — maybe more important — in an emergency. And you’re the ones who have to be on the front lines to be sure that due process is protected.”