While discussing whether he or the nation's governors have the power to lift restrictions states put in place to fight the spread of the coronavirus, President Donald Trump declared at a news briefing Monday, "When somebody’s president of the United States, the authority is total."
The president's unprecedented claim of total power met with immediate pushback from Democrats and Republicans, many of them arguing the U.S. Constitution explicitly refutes his claim to absolute authority.
"The federal government does not have absolute power," said Rep. Liz Cheney, R-Wyo., who went on to quote the text of the 10th Amendment in a tweet that went viral.
Sen. Marco Rubio, R-Fla., said changes to the social-distancing orders should be made by the governors. Federal guidelines "will be very influential. But the Constitution & common sense dictates these decisions be made at the state level," he tweeted.
Jonathan Turley – a law professor at George Washington University who argued against Trump's impeachment before the House Judiciary Committee and a USA TODAY contributor – said the framers wrote the Constitution precisely to bar presidents from claiming the type of authority asserted by Trump.
"Our constitutional system was forged during a period of grave unease over executive authority. After all, the nation had just broken away from the control of a tyrant," Turley said. And if there is "one overriding principle" in the Constitution, it is to avoid the concentration of power, and it does so "in myriad ways," he said.
The 10th Amendment was one instrument written to help ensure that the federal government would not be able to impose the kind of absolute authority the framers feared.
Pres Trump stated that “When somebody is President of the United States, his authority is total.” The Constitution was written precisely the deny that particular claim. It also reserved to the states (& individuals) rights not expressly given to the federal government.— Jonathan Turley (@JonathanTurley)April 13, 2020
What the 10th Amendment says
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
What it means
Turley said federalism, in which states are granted a large degree of autonomy, was one of the ways the framers sought to avoid authoritarianism. The other was to limit the possibility of "constitutional drift" – in which individual officials or branches of the federal government slowly expand their authority – by creating "clear structural limitations" on the powers of the federal government.
He described the 10th Amendment as an "insurance policy" against such constitutional "mission creep."
"It basically mandates that the default position" in conflicts between the states and the federal government "rests with the states," he said, "So, when federal push comes to states' shove, the states are supposed to prevail."
"There is nothing particularly ambiguous about that."
Kathleen Bergin, a law professor at Cornell University, agreed.
"It's so plain and obvious it's not even debatable," Begin said. "Trump has no authority to ease social distancing, or to open schools or private businesses. These are matters for states to decide under their power to promote public health and welfare, a power guaranteed by the 10th Amendment to the Constitution."
How it applies to the coronavirus outbreak
"Federalism was not designed to combat a contagion, it was designed to combat tyranny," Turley said. But according to the principles of federalism, it is the "primary responsibility of the states to prepare for and to deal with pandemics" such as this, he added.
Previously, Trump denied it was his responsibility to supply the states with the medicine and equipment needed to contain and treat the virus when asked about governors' complaints that the federal government was not doing enough to help them. And when pressured to issue a nationwide stay-at-home order, Trump said it was up to each governor to impose such restrictions.
"What the president said directly contradicts his position of the last three weeks," said Turley, who has written columns supporting Trump's previous approach.
"One of his most unnerving statements was that governors imposed these orders simply because he let them do it and that he could have declared a national quarantine earlier," Turley said. "That's a direct contradiction of what he has previously stated, but, more importantly, what the Constitution states."
Bergin said Trump was not "powerless," however.
"He could lift international travel restrictions and issue directives to the military or federal agencies," she said. "But he doesn't get constitutional authority simply by claiming it. What he tries to do and what he's authorized by the Constitution to do are two different things."
No statutory power when it comes to social distancing
Charles Fried, who has taught at Harvard Law School since 1961, strongly disputed the idea that the 10th Amendment was relevant to Trump's claim of total authority and said the real issue was that Congress had not passed any law granting Trump authority to order a national quarantine or stay-at-home directive.
Fried said the 10th Amendment was a "bogus concern" in this instance and anyone making that argument is "barking up the wrong tree" or is a "10th Amendment nut."
"People like Cheney just want to bring federalism into everything, but it's not a federalism problem," Fried told USA TODAY.
Fried said the problem was really in the fact that Congress hadn't given Trump the power that he claimed. But he said it theoretically could under its authority to regulate business as outlined in Article 1, Section 8 of the Constitution.
"And that's why I don't like referring to the 10th Amendment. It's not really a 10th Amendment issue. It's a rule of law issue," Fried said. "The president can't just say, 'I am the boss.'"
Fried pointed to the 1952 Supreme Court case of Youngstown Sheet & Tube Co. v. Sawyer in which the court ruled President Harry Truman did not have the power to take control of the nation's steel mills despite a labor strike that threatened production during the Korean War.
"The President's power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself," wrote Justice Hugo Black.
How would Trump enforce it?
David Cole, the national legal director for the American Civil Liberties Union, told USA TODAY that even if Congress passed a law granting the president the authority to implement a national curfew, quarantine or stay-at-home order, and it survived constitutional challenges, Trump would not be able to compel the states to enforce it.
Under what is known at the "anti-commandeering principle" the courts have ruled that states don't have to use their resources or law enforcement officials to enact federal programs.
For example, in the 1997 case Printz v. United States, the Supreme Court ruled a provision of the Brady Handgun Violence Prevention Act, which required background checks for handgun sales, was unconstitutional under the 10th Amendment because it required local law enforcement officers to carry out the background checks.
"He could not direct the mayor of New York, or the governor of New York to carry out that program," Cole said. Trump could ask the National Guard to carry it out, or the FBI, but not state or local officials, Cole said.
So, despite the president's claims, his authority is far from total, Cole and other legal experts agreed.
"He can only execute laws that Congress has passed, and Congress can only pass laws that are authorized by the Constitution," Cole said.