SALT LAKE CITY — Politicians, legal scholars and local leaders have this advice for nervous business owners and employees listening to Washington and state governors argue over who decides when to reopen the economy:
“The government can say whatever it wants to say, but the government can’t come in and say, ‘You will open your restaurant on this day,’” said Derek Miller, president of the Salt Lake Chamber and head of a task force steering Utah’s response to the coronavirus pandemic.
Miller’s observation came near the end of a temporary tempest this week that disrupted what seemed like a coordinated effort between Washington and state governors to halt the spread of the deadly virus that has crippled state and the national economies. But when President Donald Trump declared he had “total” and “absolute” authority to tell states when to reopen their economies, the apparent bonhomie between governors and the White House blew up.
Governors from both sides of the political aisle fired back, with New York Gov. Andrew Cuomo, a Democrat, saying the president is not a king. Republican Utah Gov. Gary Herbert took a more cooperative tone as did those of Utah’s congressional delegation who commented on the flare-up.
“Despite a politicized environment, the governors and the president have developed an effective working relationship. The president is a proven federalist in allowing states to implement their own directives thus far, and I would expect this to be the case moving forward,” said Utah Republican Congressman Chris Stewart, a reliable Trump defender.
Other Republicans weren’t so diplomatic in calling out the president for violating a long-held conservative credo to champion states rights and decry federal overreach.
“The Constitution doesn’t allow the federal gov’t to become the ultimate regulator of our lives because they wave a doctor’s note,” Sen. Rand Paul, R-Ky., tweeted Tuesday. ”Powers not delegated are RESERVED to states & the PEOPLE. If we dispense with constitutional restraints, we will have more to worry about than a virus.”
By the end of the day, the president backed off his claim to absolute authority, saying he would leave it to governors to determine when and how to revive economic activity in their states. He said he likely would discuss his plans with governors on Thursday, according to The Associated Press.
“The governors are responsible,” Trump said. “They have to take charge.”
But at his Wednesday news briefing, Trump warned states that “if we’re not happy ... we’ll let them know about it and as you know we have very strong action including a close down.”
Constitutional scholar Robert Schapiro said Tuesday he didn’t expect a standoff between the president and a governor. The Emory University law professor said tensions between state and federal authorities amid a crisis tend to work themselves out through discussion and negotiation.
“So I tend to think that that’s where this will end up, where there won’t be a situation where the president purports to order businesses to be open and governors order businesses to be closed, but rather a kind of compromise and understanding that circumstances may vary and that different states can come up with different solutions,” said Schapiro, director of Emory Law’s Center on Federalism and Intersystemic Governance.
Commander in chief
While the nation’s chief executive has broad powers to regulate interstate commerce, national defense and immigration, Schapiro explained that the president of the United States receives his authority from either the Constitution or if Congress delegates certain responsibilities to the executive branch.
The 10th Amendment to the Constitution embodies the concept of “federalism” — a federal government with limited powers listed in the Constitution and the remaining authority reserved for the states. Among those state powers are so-called policing powers, which include overseeing public health and safety.
The federal government’s power over the states has expanded — through constitutional amendments, laws enacted by Congress and federal court rulings — over the decades in areas such as business and environmental regulation, civil rights and health care, to name a few.
“And so you have a federal government exercising authority that would have been far beyond what the framers or the founders would have thought justifiable,” said Robert Natelson, who heads the Constitutional Studies Center for the Independence Institute, a free market think tank in Denver, Colorado.
The cries of federal overreach have increased in recent decades, spawning movements such as “Tenthers,” which espouses federal powers be narrowly defined to what is in the Constitution, and the Tea Party, whose adherents want to reign in federal authority at all levels. States have pushed back, as well, in attempts to nullify the Affordable Care Act and thwart Trump’s loosening of environmental regulations.
A case both Natelson and Schapiro cited as particularly relevant to Trump declaring he had authority to tell local businesses to reopen took place in the early 1950s. President Harry Truman issued an executive order to nationalize the steel industry to avert a strike during the Korean War. The president argued that as commander in chief of the military he had power to take over a private industry to ensure a steady supply of munitions during war.
The steel companies sued to regain control of their plants. The Supreme Court in 1952 agreed, 6-3, that the president didn’t have authority to seize the nation’s steel mills without congressional approval.
In his concurring opinion, Justice Robert Jackson said when a president “takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb.”
“That might be a lesson that President Trump should learn,” Natelson said. “That the commander in chief of the Armed Forces is not commander in chief of the country.”
But the Truman case is also an example that the current administration is not alone in debating the powers and authority of the president and the executive branch.
“I see very little evidence that any president in recent history understands the division of powers or really cares about it,” Natelson said. “Federal politicians generally have very little consciousness of what the Constitution says or what the limits on their authority is supposed to be.”
‘Every state is different’
An area where states welcome federal help is during natural disasters. Under a system that largely developed over the 20th century, states declaring a state of emergency can trigger federal resources to help with recovery.
The system had a rough start in the beginning of the coronavirus pandemic as the unprecedented speed and scope of a health and economic crisis enveloping every state caught many federal and state leaders unawares. Eventually state governors took control issuing public health orders and the federal government approved trillions of dollars in economic aid and ramping up medical supply lines and testing.
“You’ve got that mix of public health and the economy that makes the relationship more complicated,” John Weingart, director of Rutgers University’s Center on the American Governor, told the Deseret News in March. “There should be a cooperative relationship. But in the circumstances of a crisis happening for the first time, everyone’s having to feel their way to some extent, even if you assume everybody’s operating with the best of intentions.”
Governors have had weekly — and sometimes daily — phone conferences with the administration. The administration issued guidelines that generally backed state orders and directives to shutter businesses and maintain social distancing to curb the spread of the virus.
But tensions surfaced over Easter weekend, after Trump suggested the economy could reopen in May and governors began pushing back, saying they would decide when it is safe for their states to reboot their economies. Trump shot back on Twitter early Monday, blaming the media for sowing confusion and declaring “it is the decision of the president.”
....It is the decision of the President, and for many good reasons. 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!— Donald J. Trump (@realDonaldTrump) April 13, 2020
Trump doubled down at a press briefing later in the day, sparring with reporters asking him where in the Constitution does it give the president that authority to order states to reopen.
“When somebody’s the president of the United States, the authority is total,” Trump said. “And that’s the way it’s got to to be. It’s total. It’s total. And the governors know that.”
Trump appeared to relish the debate his comments ignited, tweeting that governors were in a mutiny that was “an exciting and invigorating thing to watch, especially when the mutineers need so much from the Captain. Too easy!”
But while some governors acknowledge they need federal assistance, they are also working among themselves to set their own timelines on when to reopen local economies on a statewide or regional basis. Governors of six Northeastern states that share borders collaborated Monday, and the governors of coastal states Oregon, Washington and California announced they were doing the same.
In response to questions about the federalism flare-up, Utah Republican Rep. Rob Bishop said the administration has given states a lot of flexibility to address the pandemic and he expects that to continue as the rate of infection slows and opportunities appear across the country for the economy to open back up.
“It’s just natural. Utah is not the same as New York state,” Bishop told KSL Newsradio Tuesday. “When (Utah) reopens, it will reopen in a different way with different dynamics than New York. So there has to be some flexibility to do that.”
Bishop, an Advanced Placement government and history teacher for three decades before he was elected to Congress, said both states and the federal government have powers and authority to work together to regulate commerce and public health.
“Both of them have some responsibility” to reopen the economy, he said. “The federal government has an overall responsibility set the tone, standards and guidelines, especially as it relates to interstate commerce, but at the same time give some flexibility and variances to states because every state is different.”
Clarification: An earlier version of this story identified the Independence Institute as a libertarian think tank. The institute describes itself as a free market think tank.