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On Trump's claimed absolute authority over Governors/ promise of a "paper"--He need not, here it is:
Worth reading the entire lawfareblog article linked belowLink to tweet
Trump Can’t Reopen the Country Over State Objections
What happens if Trump tries to order or coerce states to relax their restrictions and put their residents at risk? Earlier this week in Lawfare, Robert Chesney described some limitations on the president’s power to “force changes if state and local officials won’t follow his lead.” He’s right. And if the president tries to force states to ease restrictions, they should resist. They have the Constitution on their side, and they will almost certainly win in court.
A triad of bedrock constitutional principles gives the states the upper hand. First, the Constitution and cases dating back to the founding era make clear that the power to make decisions about public health and welfare—for example, whether to close businesses and schools—lies primarily with the states, not the federal government. Second, to the extent that the federal government does have power in these areas, that power lies with Congress, not the president. Third, federal powers, even when wielded by Congress, are limited. And, as a practical matter, Congress is extremely unlikely to use its power to force states to roll back public health measures, even if it could do so as a formal legal matter. Under these principles, Trump lacks the legal authority to override orders from governors and other state and local officials that are designed to protect the public health and welfare of their citizens.
State Power
First and foremost, states currently retain power to decide who stays home and for how long. The 10th Amendment expressly reserves to the states those powers not delegated to the federal government. As the Supreme Court has explained, the Framers “rejected the concept of a central government that would act ... through the States, and instead designed a system in which the State and Federal Governments would exercise concurrent authority over the people.” The 10th Amendment codifies the U.S. system of dual sovereignty and makes clear that, although the states surrendered many of their powers to the federal government, they retain “a residuary and inviolable sovereignty” over those powers not assigned to the federal government.
Among the powers generally reserved to the states is the authority to quarantine individuals and otherwise protect public health. The regulation of the health and safety of individuals “is primarily, and historically, a matter of local concern,” the Supreme Court has held. Accordingly, “[s]tates traditionally have had great latitude under their police powers to legislate as to the protection of the lives, limbs, health, comfort, and quiet of all persons.”
States and localities have exercised their power to impose quarantines throughout U.S. history. At the turn of the 19th century, the Boston Board of Health quarantined ships arriving from the West Indies, the Mediterranean and other tropical ports to limit the influx of smallpox and other diseases. In 1866, New York City issued a quarantine to prevent a cholera outbreak after health officers discovered that 37 passengers on a ship from Liverpool had died of the disease. More recently, in 2014, many states—including Connecticut, Illinois, New Jersey, New York and Texas—instituted quarantines aimed at curbing the spread of the Ebola virus. And over time, a number of states and cities have enacted statutes and promulgated regulations codifying and explicating their quarantine powers. So it should not have come as a surprise in March 2020 when Virginia’s governor reminded Liberty University that—notwithstanding the school’s decision to require faculty and staff to come back to campus and to encourage thousands of students to do so—the university was still obligated to comply with state public health directives, including Virginia’s new ban on gatherings of more than 10 people.
The federal government cannot directly hijack states’ historic quarantine powers for its own ends. In a line of 10th Amendment cases establishing the “anti-commandeering” doctrine, the Supreme Court has repeatedly made clear that the federal government cannot “issue orders directly to the States,” forcing their governments to enact laws or act as appendages of the federal government, carrying out federal programs.
This means that neither the president nor Congress can directly require states and cities to call off their “shelter-in-place” orders, or to reopen schools and businesses. If states wish to keep those restrictions in place beyond Trump’s 15 days, they may.
What happens if Trump tries to order or coerce states to relax their restrictions and put their residents at risk? Earlier this week in Lawfare, Robert Chesney described some limitations on the president’s power to “force changes if state and local officials won’t follow his lead.” He’s right. And if the president tries to force states to ease restrictions, they should resist. They have the Constitution on their side, and they will almost certainly win in court.
A triad of bedrock constitutional principles gives the states the upper hand. First, the Constitution and cases dating back to the founding era make clear that the power to make decisions about public health and welfare—for example, whether to close businesses and schools—lies primarily with the states, not the federal government. Second, to the extent that the federal government does have power in these areas, that power lies with Congress, not the president. Third, federal powers, even when wielded by Congress, are limited. And, as a practical matter, Congress is extremely unlikely to use its power to force states to roll back public health measures, even if it could do so as a formal legal matter. Under these principles, Trump lacks the legal authority to override orders from governors and other state and local officials that are designed to protect the public health and welfare of their citizens.
State Power
First and foremost, states currently retain power to decide who stays home and for how long. The 10th Amendment expressly reserves to the states those powers not delegated to the federal government. As the Supreme Court has explained, the Framers “rejected the concept of a central government that would act ... through the States, and instead designed a system in which the State and Federal Governments would exercise concurrent authority over the people.” The 10th Amendment codifies the U.S. system of dual sovereignty and makes clear that, although the states surrendered many of their powers to the federal government, they retain “a residuary and inviolable sovereignty” over those powers not assigned to the federal government.
Among the powers generally reserved to the states is the authority to quarantine individuals and otherwise protect public health. The regulation of the health and safety of individuals “is primarily, and historically, a matter of local concern,” the Supreme Court has held. Accordingly, “[s]tates traditionally have had great latitude under their police powers to legislate as to the protection of the lives, limbs, health, comfort, and quiet of all persons.”
States and localities have exercised their power to impose quarantines throughout U.S. history. At the turn of the 19th century, the Boston Board of Health quarantined ships arriving from the West Indies, the Mediterranean and other tropical ports to limit the influx of smallpox and other diseases. In 1866, New York City issued a quarantine to prevent a cholera outbreak after health officers discovered that 37 passengers on a ship from Liverpool had died of the disease. More recently, in 2014, many states—including Connecticut, Illinois, New Jersey, New York and Texas—instituted quarantines aimed at curbing the spread of the Ebola virus. And over time, a number of states and cities have enacted statutes and promulgated regulations codifying and explicating their quarantine powers. So it should not have come as a surprise in March 2020 when Virginia’s governor reminded Liberty University that—notwithstanding the school’s decision to require faculty and staff to come back to campus and to encourage thousands of students to do so—the university was still obligated to comply with state public health directives, including Virginia’s new ban on gatherings of more than 10 people.
The federal government cannot directly hijack states’ historic quarantine powers for its own ends. In a line of 10th Amendment cases establishing the “anti-commandeering” doctrine, the Supreme Court has repeatedly made clear that the federal government cannot “issue orders directly to the States,” forcing their governments to enact laws or act as appendages of the federal government, carrying out federal programs.
This means that neither the president nor Congress can directly require states and cities to call off their “shelter-in-place” orders, or to reopen schools and businesses. If states wish to keep those restrictions in place beyond Trump’s 15 days, they may.
The full article is well worth a read: https://www.lawfareblog.com/trump-cant-reopen-country-over-state-objections
6 replies
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That is all.
