The Largest Constitutional Dilemma: The federal government against the states

Richard Roth, Esq –

April 13th 2020

President Trump’s claim that he has the power “to open up the states” and not the governors is not only positively false, but was the largest issue that the framers grappled with during the Constitutional Convention.

Trump, simply ignorant of the laws, seeks to project an image of almost unlimited presidential authority during the coronavirus crisis.  Yesterday – remarkably – the President  claimed that it will be his decision when the nation’s businesses will reopen during the coronavirus pandemic, and not a choice left to individual governors.  That statement is wrong.  First, U.S. law gives state governors wide latitude to protect the health and safety of their constituents. Second, because Trump never declared a nationwide lockdown, there’s no mechanism by which he could order a nationwide reopening.

In reality, the authority to protect the public health of U.S. citizens by directing shutdowns and shelter-in-place orders lies squarely with the nation’s governors, and not with the president.  Simply, there is no authority that allows the federal government to override the state and local governments sweeping police power to protect their citizens.  While the President does make certain declarations about critical infrastructure and general guidelines that states regularly follow, the President cannot order the governors to do anything.  He can’t even withhold funding from states, as that is a function of the legislative branch.