At a briefing for the press on Monday, President Donald Trump announced that his authority to force states to reopen for business is without limit under Article II of the Constitution. “When somebody’s the president of the United States, the authority is total,” he said. He tweeted in the same vein on Monday that “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.” Since then, “Amendment X” has been trending on Twitter, led by the efforts of strange political bedfellows that sweep in Liz Cheney and Joshua Geltzer.
Geltzer teaches at Georgetown Law Center, and he served in the Obama administration as senior director for counterterrorism at the National Security Council. Prior to that he served as deputy legal adviser to the NSC and counsel to the assistant attorney general for national security. He has been warning us for a very long time to take quite seriously, and quite literally, the president’s frightening pronouncements on the scope of his constitutional authority. In many ways, what the president is now claiming—some inchoate and free-floating power to seize state authority over stay-at-home and quarantine orders—is just a different version of his long-standing claims about his boundless presidential authority. He has, after all, claimed that he is immune from investigation or prosecution, he has argued that Congress has no authority to constrain his decisions to execute foreigners, and he has asserted that neither Congress nor the courts can tell him how to spend funds appropriated to the military. Yet there is something deeply chilling about the president’s repeated insistence that the 10th Amendment powers reserved to the states are nonexistent. I wanted to clarify with Geltzer what the president appears to be claiming and what the implications might be. Our conversation is lightly edited for clarity.
Dahlia Lithwick: Sorry to ask this but—can you just do five minutes of Constitutional Law for Dummies: What does the Constitution say about the boundary between state powers and the president’s legal authority?
Joshua Geltzer: Let’s start with a slightly broader question: What does the Constitution say about the boundary between state powers and the legal authority of the federal government as a whole, which includes Congress, not just the president? The key notion here is that our federal government has specific powers, whereas states have general powers. This gets called, especially for Congress, the difference between having “enumerated powers”—described, one by one, in Article I of the Constitution—and the states having “police powers”—meaning the general powers to regulate the lives of those states’ residents. This distinction was inherent to the text and structure of the original Constitution, and yet still some worried that wasn’t enough. So that’s why the 10th Amendment was added, making abundantly clear 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.” Translation: If it’s not in the Constitution, it’s a power of the states or of the people, not of the federal government.
But you asked a narrower question, about the boundary between state powers and the powers of just one part of the federal government—the presidency. The powers of the presidency aren’t generally required to be set out as explicitly as the powers of Congress are. That’s in part because of a textual difference in the Constitution (“All legislative Powers herein granted shall be vested in a Congress of the United States” versus “The executive Power shall be vested in a President of the United States of America”). And it’s in part because of a structural sense that a president must be able to keep the country safe in the face of grave threats and draw on inherent executive authority when needed to do so. But that has not—and, I repeat, not—generally been understood to invade the police powers of the states. Instead, it’s been interpreted to allow a president to, for example, authorize military action to neutralize an imminent threat to the national security of the country. That’s not displacing state authority—it’s exercising national authority. It’s a key difference.
And when we are talking about “opening states up,” whatever that means, that strikes me as classic “police powers”—whether it’s opening schools or businesses or easing up on social distancing rules.
That strikes me that way, too, Dahlia. However authorities are allocated within particular states—and that of course can differ state to state—the basic control over opening or closing schools, or requiring residents to shelter in place apart from essential outings, or imposing social distancing, all seem to fall outside any authorities explicitly granted to the federal government by the Constitution and inside the authorities inherently maintained by the states. So, for President Trump to order states to “open up” would mean for him to have an authority to override the states’ own exercise of their authorities to keep their residents safe, especially amid the continuing spread of a lethal virus.
Is there a tremendous body of doctrine undergirding all this? Do we have precedent for this type of conflict? Does it go back 100 years to the 1918 flu?
The short answer is that President Trump’s claim is rather extraordinary when he claims that, “When somebody is the president of the United States, the authority is total.” I mean, “total”?? “Total” despite Congress and the federal courts? “Total” despite the states and their constitutional reservation of authority in the 10th Amendment? As my friend and mentor Neal Katyal wrote earlier this week, with that language, “our commander-in-chief sounded more like the leader of some tinpot dictatorship than of the United States.” Neal’s right.
But the art of common law is the art of reasoning by analogy. And we do have analogies. We have a famous Supreme Court decision holding that, during the Korean War, the president lacked authority to, in effect, seize control of most of the country’s steel mills in order to support the war effort. And we also have more recent Supreme Court decisions holding that the federal government can’t “commandeer” the states into becoming the enforcers of federal law. But, perhaps most importantly, we have the Constitution itself: a Constitution designed precisely to create a system of checks and balances within the federal government as well as between the federal government and the states—not a Constitution intended to recreate the very unbounded monarchical authority Americans had just fought a revolution to reject.
What’s an example of something Trump could legitimately order, related to COVID-19, under his Article II powers? International travel restrictions, presumably? What else?
It’s interesting that you raise travel restrictions—because that’s something President Trump has already done in the face of COVID-19, but not entirely under his Article II powers. Look at his proclamation suspending travel between the United States and China: It cites multiple provisions of federal immigration law, in addition to the general “authority vested in me by the Constitution.” It’s a great illustration of how much power has been explicitly given to the executive branch by Congress itself through statutes passed by Congress and signed by various presidents over the years. That makes it all the more extraordinary for Trump to claim some unidentified source of authority to “open up” the states: Despite decades and decades of laws getting added to the statute books giving the president more and more explicit authorities, there’s still basically nothing to support this assertion of presidential authority.
But that then takes us right back to your question, Dahlia: What could the president do based on his constitutional authority alone? There’s a decent argument that he could order federal employees back to work, even in states where that would run contrary to governors’ orders to stay at home. There’s a long line of Supreme Court decisions—written by the likes of Chief Justice [John] Marshall through Justice [Antonin] Scalia—suggesting a general rule that states can’t take steps to, in effect, destroy a valid federal entity or even just directly regulate the federal government against its will. The Justice Department summarized the law in this area in a 1997 opinion that remains on the books and binding on the executive branch. So the president would at least have an argument that he could override state shelter-in-place orders specifically to get federal employees back at work—though the idea of putting only our nation’s dedicated public servants in harm’s way strikes me as utterly reprehensible, whatever the law might be.
Have we any notion where the president is getting his constitutional advice from? What, in other words, is he even formally referencing when he talks about his power over state executives?
Wait—so you’re not advising him, Dahlia?? Now I’m even more worried.
Honestly, I don’t know where Trump gets ideas in his head. But I do worry that he has an all-too-pliant White House counsel and Justice Department to cook up justifications for whatever he does say after he says it. Look at his White House counsel’s unprecedented assault on impeachment as a process. Look at his attorney general’s unrelenting defense of the president’s continued spewing of conspiracy theories regarding law enforcement’s efforts dating back to 2016. If anyone still thinks President Trump can’t find lawyers to write down justifications for his zany notions, that person needs to think again.
And, to be honest, I worry that many who’ve rightly rejected President Trump’s outrageous assertion of authority haven’t really grappled with what the legal defenses of that assertion could look like. I’m just speculating here, but my hunch is that, if Trump really does go down this unfortunate path, we’ll see his lawyers relying on the Supreme Court’s famous decision in the Prize Cases, in which President Lincoln’s blockage of Southern ports at the outbreak of the Civil War was deemed an acceptable exercise of inherent constitutional authority to maintain the nation itself. Trump’s lawyers, I worry, will say that Trump is doing something similar: He’s reinvigorating the American economy before it’s permanently debilitated and the nation’s security is forever harmed. That would be the constitutional argument in its most aggressive form. To be clear, I think it’s utterly unsupported by the facts and projections—if anything, reopening too much too soon will yield even more thousands of tragic deaths and set back our nation’s efforts to recover. But I think we need to be prepared for aggressive arguments like that, given what we’ve seen Trump lawyers argue over the past three years.
That all being said, President Trump does appear to have walked back his sense of authority in this area, saying more recently that he is ordering governors to craft their own plans for reopening the economy. So maybe someone with some actual sense of the Constitution—and respect for it—did get to Trump and set him straight a bit. Even still, Trump can’t seem to let go of the notion that he’s the one ordering governors around. And, in this area, it’s hard to see why he thinks the Constitution authorizes him to do that.
I don’t like wasting your brain cells this way, but is it even relevant that a few short weeks ago the same president implied that he had no power over the states and the governors needed to put distancing measures in order?
It’s relevant only insofar as consistency might matter. But consistency simply doesn’t matter to President Trump—it just doesn’t. In the same breath, he’ll say that he has complete authority over the nation’s governors and that the governors have complete responsibility for the obvious failings of the COVID-19 response that are aggravating an unfathomable death toll. There’s no consistency in asserting total power and zero responsibility. But that’s Donald Trump.
The inevitable next question is the grim one: What happens if and when the president orders a state to reopen and a Gavin Newsom or Andrew Cuomo or Mike DeWine says, “Yeah, no?” Send in the National Guard time? Constitutional crisis time?
I hope not—and I’m still willing to believe that our nation can resolve even these escalating, tense fights peacefully. Let’s say President Trump issues a proclamation purporting to override a state’s shelter-in-place or school closure order. The governor of that state should follow in the grand American tradition: He or she should sue. Go to court. Seek an injunction against enforcement of the proclamation on the grounds that it’s ultra vires, or beyond the president’s powers, and a violation of the 10th Amendment. Let each side make arguments to a federal judge, and let the losing side appeal. But keep us a nation of laws.
And what happens down the line when Florida or Texas or Louisiana citizens grow sicker, as a result of all this?
They need to know whom to blame. If a governor wants to get back to normal life before it’s safe to do so, they should be held accountable. But, in our constitutional system, it’s their choice—not the president’s. And if the president tries to interfere with that, either in the ways we’re talking about or even in more subtle ways like attempting to make federal funding contingent on reopening the economy or through the presidency’s bully pulpit, then it’s the president who deserves blame.
What do you say to your conservative friends who are smirking that Democrats sure took to federalism in a hurry this week?
I’ll confess: Federalism is a particular relief when national leadership is an absolute disaster, as it is right now. It gives all of us in this country other leaders who can step up to help us—as some governors and mayors are doing right now in what I’ve called elsewhere “homeland security federalism.” But, honestly, no serious lawyer or scholar who works on constitutional law has ever denied that federalism is a critical element of America’s constitutional design. It’s just a question of what it means when. And, right now, I agree with Liz Cheney: It means that President Trump simply and clearly “does not have absolute power.”
