States largely have authority over when to shut down, reopen

President Donald Trump gestures to a chart as he speaks about the coronavirus with Dr. Deborah Birx, White House coronavirus response coordinator, left, and Dr. Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases, right, in the James Brady Press Briefing Room of the White House, Tuesday, March 31, 2020, in Washington. (AP Photo/Alex Brandon) (Copyright 2020 The Associated Press. All rights reserved.)

WASHINGTON – President Donald Trump has shown no reluctance to use his White House perch to commend and criticize governors over steps they've taken to try to slow the spread of the coronavirus. But one thing Trump can't do, despite his assertion to the contrary on Monday, is command them to ease restrictions they imposed because of the virus outbreak. The Constitution largely gives states the authority to regulate their own affairs.

Governors in both parties have said they are as eager as the president to reopen the economy, which has plummeted as businesses have been forced to close, putting millions of people out of work. But they have said they will let health issues, especially the widespread availability of rapid testing, drive their decisions.

Presidential guidelines limiting social interaction are in place until the end of this month, but in many places, state and local restrictions extend well into May and beyond.

Some questions and answers about the legal authority for shutting and reopening the U.S. economy.


Q. What is the president saying about reopening the economy?

A. Trump took to Twitter on Monday to assert his authority to act. Some 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 is the decision of the President, and for many good reasons,” Trump tweeted. He added, “With that being said, the Administration and I are working closely with the Governors, and this will continue. A decision by me, in conjunction with the Governors and input from others, will be made shortly!”


Q. Do the governors agree that the federal government is in charge?

A. They do not. Governors have made clear in recent days, not for the first time, that they will make decisions for their states driven by data that show whether efforts to contain the virus are working. Ohio Gov. Mike DeWine, a Republican, who was one of the first governors to take aggressive action, on Saturday refused to offer a timeline for reopening his state. “We’re not going to flip a switch and everything’s going to get back to normal until we get a vaccine, until we get a way to prevent this,” DeWine said on MSNBC.


Q. Does the president have the authority to override state and local orders?

A. No. Under our constitutional system, states have the power and responsibility for maintaining public order and safety. As we've seen since the outbreak began, decisions about limiting social interactions by ordering people to shelter in place, closing businesses and shutting schools are being made by governors and local officials. Those same officials will make the call about when to ease up. Trump's comments “are just advisory," said John Malcolm of the Heritage Foundation.


Q. But the president has set a period until the end of April in which all Americans are being urged to drastically scale back their public activities. Doesn't that amount to a national order?

A. No. The guidelines are voluntary, and they underscore the limits on Trump's powers. He can use daily briefings and his Twitter account to try to shape public opinion, and he has not been reluctant to do so. “When Donald Trump selects a narrative and begins to advance it, especially through his Twitter account, it has a remarkable effect on those who trust him," said Robert Chesney, a University of Texas law professor wrote on the Lawfare blog. Late last month, Florida Gov. Ron DeSantis abandoned a county-by-county approach and issued a statewide stay-at-home order, saying he consulted with Trump and White House advisers before acting.


Q. Still, Trump has invoked some federal laws to address the virus outbreak, hasn't he?

A. Yes, he has. The Stafford Act allows the expenditure of tens of billions of dollars in emergency assistance. The Defense Production Act allows the president to direct private companies to produce goods or acquire raw materials. But Trump can only assert powers that Congress has specifically given him. “There are real limits on the president and the federal government when it comes to domestic affairs,” John Yoo, a University of California at Berkeley law school professor, said on a recent Federalist Society conference call. At the same time, the federal government has the power, under laws aimed at preventing the spread of communicable diseases, to quarantine people when they arrive in the United States and travel between states.


Q. Is it clear that state and local governments have authority to impose the severe restrictions we've seen?

A. Lawsuits already are challenging state actions on religious grounds and as seizures of property for which the government must pay compensation. But for more than 100 years, the Supreme Court has upheld states' robust use of their authority, even when it restricts people's freedoms. In 1905, the court rejected a Massachusetts pastor's complaint that he should not be forced to get a smallpox vaccine or pay a fine, Malcolm noted.


Q. But we've seen the federal government curtail the public before, notably during World War II when people of Japanese descent, including U.S. citizens, were put into internment camps. Wasn't that the same?

A. President Franklin Delano Roosevelt used an executive order that designated certain areas as military zones to make camps. The Supreme Court in 1944 did uphold the internment in its notorious decision in Korematsu v. United States as a “military necessity” that was not based on race. In 2018, the court formally overruled Korematsu (even as it upheld Trump’s travel ban on people from several mainly Muslim countries. ) “Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and — to be clear — ‘has no place in law under the Constitution,’’’ Chief Justice John Roberts wrote.