Trump completely misunderstands his authority as president – A lawyer’s perspective
By James D. Zirin | April 29, 2020
We are in the midst of a public health crisis unlike any other we have faced in our lifetime, and President Trump has been all over the lot in how to approach the problem. On March 13, he said: “I don’t take responsibility at all.” On April 13, a month later, he declared: “I have the ultimate authority” to order states to relax social distancing to combat the coronavirus outbreak and reopen their economies. He went on to claim his authority in this regard was “total.” He warned that governors who refuse would face political consequences.
Asked what provision of the Constitution gives him the power to open or close state economies, Trump said: “Numerous provisions. We’ll give you a legal brief if you want.” Most lawyers would have difficulty writing such a brief or finding the “numerous provisions” the president was unable to elaborate.
Trump’s position raised some conservative eyebrows. Traditionally, Democrats have favored a strong central government, while Republicans, fearing socialization and the abuse inherent in a centralized infrastructure, have favored states’ rights. As Ronald Reagan put it, the “government is not the solution to our problem, government is the problem.”
Finally, in an April 17 tweet, he undercut the
Democratic governors of Michigan, Minnesota and Virginia, by issuing a clarion call to anti-lockdown citizens, in many cases suspiciously organized by pro-Trump conservative activists, to “liberate” their states; and, in the case of Virginia with a reference to the Second Amendment, even by force of arms. These statements implicate a violation of Title 18, U.S.C. § 2385, which criminalizes conduct that advocates and advises the overthrow of a state government by force and violence. Conservative undermining of what the governors are trying to do to save lives and end the spread is exemplified by the demand of firebrand Republican Congressman Jim Jordan of Ohio that governors continuing the lockdown should be “investigated.” Indeed, Attorney General William Barr, who thinks Americans should not be “hiding under their bed,” has threatened legal action against the governors for civil rights violations, stating that stay at home orders are “disturbingly close to house arrest.” Well, as Shakespeare said, “the devil can cite scripture for his purpose.”
Trump understandably, like most Americans, wants to re-open the country as soon as possible. But his priorities may be more about November 2020. If he gets his way to the exclusion of everything else there will be needless loss of life. Even with this in mind, it is sheer lunacy to prevent the governors from doing the very job he asked them to do. He has unduly politicized the issue of authority. By deferring to the governors, he can opportunistically blame them if they open too early, and there is more spread, more deaths, and more lockdown. But, if the governors succeed, he can cast himself in an election year as the “recovery president,” whose May 1 program for “Opening Up America again” (sound familiar?) turned out to be a great success or, to use one of his favorite adjectives, “perfect.” Governors are split in their approach to reopening with the cleavage largely along party lines. Republican governors are swiftly moving to reopen key sectors; Democrats are moving more slowly. States and cities may have different rules — a reflection of how many new cases are on the ground, as well as demographic and political fault lines.