Bloomberg dryly reports on this morning’s presidential tweets:
President Donald Trump declared Monday that he has the power to “open up” states and relax social-distancing practices adopted to combat the coronavirus outbreak, not governors. He didn’t elaborate on how he reached his conclusion….“It is the decision of the president, for many good reasons,” Trump said in a subsequent tweet. He didn’t list any.
Hmmm. Short of martial law, I suppose Trump would have to invoke the commerce clause. Would that work? It might! Shutting down all the nonessential businesses in a state arguably affects interstate commerce, after all. The irony is that liberals like me believe the commerce clause is fairly broad—broad enough, for example, to allow the federal government to mandate that everyone buy health insurance. So I might support Trump’s authority here. Conservatives, by contrast, believe in a narrow reading of the commerce clause—no individual mandate for them! So they would presumably oppose Trump’s power grab.
In any case, Trump has a couple of problems here. First, the states with lockdowns in place would go to court immediately and almost certainly find someone to stay Trump’s order. Then we’d have to wait for the Supreme Court to eventually rule, which would take more than a few months. By then it would be moot.
Second, even if the Supreme Court issued a fast emergency ruling, who’s going to enforce it? What happens if the states ignore Trump? Is he going to send in the National Guard? Something tells me that a city full of guards toting M16s is not going to be open for business no matter what the president says.
For the purpose of creating conflict and confusion, some in the Fake News Media are saying that it is the Governors decision to open up the states, not that of the President of the United States & the Federal Government. Let it be fully understood that this is incorrect….
— Donald J. Trump (@realDonaldTrump) April 13, 2020
….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
UPDATE: A reader points out an obvious flaw in my reasoning (and Trump’s, assuming he has any reasoning to begin with):
Problem with this analysis is that while Dems believe in a broad interpretation of the commerce clause is that it is an enumerated power of Congress. The President can’t order everyone to buy insurance on his own.
— Miguel Duran♑ (@Capricornio_Uno) April 13, 2020
Quite so. Martial law it is, then.
