Trump’s powers to revive economy
During the televised Covid-19 news conference on Monday, April 13, President Donald Trump insisted he has total authority to decide when and how to reopen the economy as the pandemic begins to subside. He also mentioned his willingness to work with the states, but emphasized that he has the final say in the reopening process. When asked to give the basis for this assertion, the president said he would release a written explanation.
Do not be surprised, however, if President Trump never releases a written explanation because there does not appear to be any definitive legal authority for his claim. He does, however, clearly have such extensive power over national security, foreign affairs, interstate commerce, and national emergencies that if he chooses to exercise it, he can largely control the revival of business activity across America.
From a legal perspective, the president’s claim appears to be without merit. Articles I, II, and III of the Constitution outline the enumerated powers of the legislative, executive, and judicial branches of the federal government. The enumerated powers of each branch are subject to checks and balances from the other branches in order to prevent any one branch from asserting too much control over the operation of the federal government as a whole.
In addition, the concept of federalism is a structural feature of the Constitution which belies the president’s claim. Federalism means that there are two levels of government — state and national — in which the 50 states and the federal government have broad authority within their respective spheres to regulate health, safety, and commerce, among other things. Moreover, the 10th Amendment reserves to the states the powers that are not prohibited to them or expressly delegated to the federal government. Thus, both the concept of federalism and 10th Amendment arguably allow the states to control the reopening of intrastate commercial activities.
Given the limited powers of the federal government and the degree of autonomy the states have to manage their own affairs, American law clearly establishes that no individual government entity or actor, including the president, has the sole authority over governmental issues like regulating commerce. In short, neither President Trump nor any other part of the federal government has unfettered decision making authority over when and how to reopen the economy.
Even though the president incorrectly claims such authority, he does unquestionably have the constitutional power to prosecute the “war” against the Covid-19. For example, under Article II of the Constitution he may, as commander-in-chief, deploy the military to take action in support of this country’s national security and international relations. Article II also requires him to ensure that the law is faithfully executed, which includes the federal law concerning interstate commerce. This means he must exert influence on commercial activity both within and across state lines so that the U.S. economy as a whole is restarted in a thoughtful, safe, and efficient manner.
Additionally the president, based on the powers delegated to him under statutes such as the Defense Production Act, the National Emergency Act, and the Stafford Act, has wide-ranging discretion to regulate private enterprise and to spend money to address national emergencies. Thus the president has significant control over the means of production and over spending emergency relief funds that the states desperately need to reopen their economies.
This expansive presidential authority is, as a practical matter, close to plenary when it comes to reopening the economy. If the states, however, insist on their legal right to follow their own separate reopening plans and resist accepting presidential participation in the process, they might ultimately hurt their own chances for success and consequently damage people all over the country.
As a matter of law then, President Trump does not have total authority to make decisions about reopening the economy. He does however, as a result of his strong Article II powers and broad statutory authority to handle national emergencies, have a critical role to play in reactivating commercial activity nationwide.