Trump's 'I alone can fix it' view and state powers collide

President Donald Trump insists re are “numerous provisions” in Constitution to support his view that he has “total authority” to order states to open ir ecomies as

He did t enumerate what y were. And consensus among constitutional scholars is that's because y don't exist.

In doing so, he reignited a debate as old as nation over division of power and authority between federal government and states.

United States was founded in late 18th century in part on a profound skepticism of dangers of power concentrated in a central government. 10th Amendment of Bill of Rights was designed to apportion authority. Thomas Jefferson called it “ foundation of Constitution.”

amendment itself seems straightforward eugh: “ powers t delegated to United States by Constitution, r prohibited by it to States, are reserved to States respectively, or to people.”

But it’s t so simple, according to Trump.

Asked what authority he h to make such an assertion of presidential power, Trump promised that he would provide a legal memorandum that supported his view. In opting his position, he was offering a direct challenge both to rms of constitutional authority and orthodoxy of his Republican Party.

“When somebody’s president of United States, authority is total, And that’s how it’s got to be,” Trump said.

Andrew Cuomo, Democratic goverr of New York, offered a blunt rejoinder that echoed country's colonial-turned-separatist past. "We don’t have a king in this country,” Cuomo said in his daily news briefing Tuesday. “We didn’t want a king. So we have a Constitution and we elect a president.”

“ president is clearly spoiling for a fight on this issue," Cuomo said. " worst thing we can do ... is start with political division.”

Former Vice President Joe Biden, presumed Democratic challenger to Trump, echoed that me, tweeting: “I am t running for office to be King of America. I respect Constitution. I’ve re Constitution. I’ve sworn an oath to it many times. I respect great job so many of this country’s goverrs — Democratic and Republican — are doing under se horrific circumstances.”

federal government does have bro constitutional authority over states on things that cross state lines and involve entire nation, like regulating interstate commerce and immigration, levying taxes or declaring war. Its powers are drawn from Supremacy Clause of Constitution, which establishes that federal laws in most cases supersede state laws. Congress can also pass laws giving president ditional authority.

What Trump is proposing, however, is different. He is wing into states' sharply defined powers to protect public health.

“ president can un-declare his national emergency declarations, which freed up federal funds and provided assistance to state and local governments,” said Walter Dellinger, a former acting U.S. solicitor general. “But he has federal statutory or constitutional power to override steps taken by goverrs and mayors under state law. He has never understood that he lacks a general power to rule by decree.”

pandemic has tested more than nation’s health care capacity to dress a surge of critically ill patients. It also has forced a discussion of federalism, which in 18th century created a central American government with specific powers while leaving vast authority on or matters to states.

David B. Rivkin, Jr., who served in Justice Department and White House Counsel's Office, said re are instances where Trump could override states. “President Trump has authority under Defense Production Act to compel reopening and continued operations of various industrial and agricultural facilities and enterprises,” he said. “refore, as a practical matter, he can reopen a large portion of American ecomy.”

Still, Trump’s position is also at odds with philosophy of Republican Party, which often leans in favor of states being able to make decisions, and at odds with some leing conservative legal thinkers, including late Justice Antonin Scalia, whom Trump has hailed a judicial hero.

“ Federal Government may neir issue directives requiring States to dress particular problems, r command States’ officers, or those of ir political subdivisions, to minister or enforce a federal regulatory program,” Scalia wrote in Printz v. United States, which in 1997 struck down part of a federal gun law on 10th Amendment grounds.

He ded a sentence of emphasis: “Such commands are fundamentally incompatible with our constitutional system of dual sovereignty.”

John Yoo, a law professor at University of California and a former Justice Department counsel in Bush ministration, wrote Tuesday in National Review that Constitution does t give federal government right to regulate “eir public health or all business in land.”

“Congress can control commerce that crosses state lines, and even prohibit wholly intrastate activity that affects national markets. It cant, however, force individuals and businesses to eng in business in first place,” Yoo said.

“Trump will have to persue (goverrs) that gains in returning millions to work and re-opening businesses outweigh harms of ending social distancing,” Yoo wrote. “Rar than his regular tactics of cajoling, blustering, threatening, and bargaining, Trump will have to convince m with facts and medical science — t his strongest suit. But his political fate, and health of American ecomy, will depend on it.”

(Im Credit: AP)