Footnote: I was honored to chair an August 1991 American Bar Association Annual Meeting program on the Ninth and Tenth Amendments at the Annual Meeting in Atlanta Georgia:
From The New York Times:
It’s the Worst Possible Time for Trump to Make False Claims of Authority
He does not have “total” authority over states.
I teach my law students that every so often in the law, the best way to understand the veracity of a claim is just to say it out loud. They got a great example of this on Monday when President Trump made a contribution to the legal lexicon: “When somebody is the president of the United States, the authority is total. And that’s the way it’s got to be. It’s total.”
In terms that would even have made President Richard Nixon blush, our commander-in-chief sounded more like the leader of some tinpot dictatorship than of the United States.
Our Constitution was designed to reject such arrogation of power. Separation of powers and federalism aren’t fusty concepts designed to please rebellious aristocrats; they are the living embodiment of our founders’ desire to divide and check power — not vest “total” “authority” in one person, no matter how wise that person may be.
That was the basic genesis of the Declaration of Independence — King George III had grabbed all the government power for himself. The declaration’s text proclaims “the history of the present King of Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute tyranny over these states.” The American Constitution is a self-conscious reaction to that concentration of power, not a document to mirror and enable it.
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It is true that the Constitution and laws give presidents enormous powers in defense and foreign policy as well as in emergencies. Indeed, one other thing I tell my students is that if you are the president in a time of emergency, it takes real effort to make a claim so outlandish that it can’t be supported. But Mr. Trump managed to do exactly that. The 10th Amendment could not be clearer in forming the flip side to the Declaration’s grievance against King George III: “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.” And the health authorities at issue in the response to the coronavirus crisis are the ones at the heart of state governments — what scholars have called “the police power” for decades.
You’ve heard this before — Mr. Trump is asserting powers way beyond the Constitution. So why is this night different from all other nights? Consider four things.
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First, and most important, such ridiculous assertions of power are distracting sideshows that inhibit true federal solutions in a time of extreme peril. Instead of focusing on how the federal government can partner with and help the states, the states have to deal with someone who spews dictatorial rhetoric rather than constructive solutions. While that’s always bad government, it’s particularly bad government during a pandemic. Lives are on the line, every minute matters. And that precious time is being wasted as Andrew Cuomo, the New York governor, threatened to sue the administration for trying to supplant the state’s authority, and so on. Other states take the opposite approach and try to kiss up to the president, all in the hopes of getting a better deal.
Second, because Mr. Trump is so flat out wrong about his powers, his comments also undermine decision-making in states. The decision each state makes to reopen its economy will be just about the most fraught decision each political leader will make in that person’s lifetime. To have a president who says he is totally in charge, when that claim is obviously delusional, makes it harder to concentrate accountability over those decisions where it belongs, in the states. As the Supreme Court put it nearly 30 years ago, when it’s unclear who the decision maker is, “the accountability of both state and federal officials is diminished.” These are primarily state, not federal, choices. Let’s let them decide and hold them accountable. The governors made the decision to close their economies; it’s up to them to decide when to lift those orders.
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Third, Mr. Trump’s claims reveal a selective impotence about his powers. It was just a little over a week ago that he was saying that he couldn’t help the states because “we have a thing called the Constitution.” Indeed, his top lawyers are right now in the Supreme Court saying that presidents cannot use DACA to protect Dreamers because — richly — that is an abuse of presidential power. Constitutional authorities aren’t some shell game or thing to deploy whenever it suits your fancy.
Fourth, it’s hard to find something more un-American than Mr. Trump’s statement — and the idea that lawyers at the revered Department of Justice and the White House, as well as members of the president’s political party, have mostly stood silently by (and sometimes enabled) such legal views should give every American pause. The point here is not political: It’s as likely that we will see a Democratic president next year as a Republican one. Would Republicans really want a world in which a Democratic president says he has “total” authority — for this Covid-19 crisis or for any other?
Instead of making foolish constitutional claims, President Trump should use an awesome power his predecessors have wielded: the pulpit. If he has a good idea, offer it up to the states and sell it to the public. Don’t hide behind pretensions of raw authority. Too many lives are at stake. And at stake is something even deeper: the idea of what America is.
Neal K. Katyal (@neal_katyal), a former acting solicitor general of the United States and the author of “Impeach: The Case Against Donald Trump,” is a law professor at Georgetown.
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