Much of the debate surrounding the government’s handling of the coronavirus pandemic has centered around the question: what are the bounds of the president’s constitutional authority? Now, as some states allow businesses to reopen while others keep restrictions firmly in place, what powers can the president wield?
Professor John Yoo of Berkeley Law and Professor Alison LaCroix of University of Chicago Law School joined host Jeffrey Rosen on We the People to reflect on those questions, and lend their expertise on Article II presidential powers and federalism as prescribed by the 10th Amendment.
First, Yoo and LaCroix evaluated claims made by President Trump at an April press briefing, when he sparked controversy with comments about his power to “reopen” states and the economy.
“When somebody’s the president of the United States, the authority is total,” Trump said. Days later, he toned down that sentiment, stating that he would be “authorizing each individual governor of each individual state to implement a reopening . . . plan.”
Responding to the president’s initial claims of “total authority,” Yoo was unequivocal. “I'm afraid the president was wrong,” he said:
“The president doesn’t actually have any inherent constitutional power in this pandemic unless things got a lot, lot worse. Instead, he has to operate according to delegations of powers from Congress, and so the real question is—has Congress given him any sort of general power to the economy? Which it hasn’t. And then even if it did, could Congress itself force every business and economy and person in the country to go out, leave their homes, reopen their businesses, and go about their daily lives like they did before the pandemic? I'm afraid the answer to that, in my book, is no, too. I think that the Constitution gives Congress and the national government fairly discreet powers, very specific and narrow powers, but that the general power over most things is still reserved to the states . . . that includes the right to close or open businesses based on public health and safety.”
LaCroix also emphasized states’ power in this arena, attributing it to the Framers’ design. The Framers created a novel system in which “you could have multiple levels of government within the same system” with powers distributed to “the different levels of government according to their subjects or purposes,” she said.
That system, known as federalism, is enshrined in the 10th Amendment. “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,” the amendment reads.
The values enshrined by the 10th Amendment have remained a priority throughout our nation’s history, LaCroix said.
She said that even in the nineteenth century, when “the Supreme Court flirted for several decades with the idea that Congress had exclusive power over interstate commerce, something they since moved away from, even then they said the states had this very, very robust body of police powers over public health, safety, morals, welfare. So things having to do with running the state economy or state public health were clearly within the domain of the states.”
LaCroix and Yoo also reflected on how some of the president’s comments and actions comport with other clauses of the Constitution—namely, Article II, which spells out the powers of the president.
One issue they evaluated was the president’s promise to withdraw funding from the World Health Organization, citing disappointment with how it has handled the pandemic.
Yoo said this he thinks the WHO controversy is “where presidential power, Article II, will really come to the fore.” He added that he thinks the president does have the power to withdraw from WHO using his Article II power to terminate treaties.
LaCroix also noted the strength of that power.
“When we’re talking about the treaty and the sort of externally facing presidential powers, those are quite strong,” she said. “I think there’s very strong Supreme Court case law on these points and it's pretty well-rooted in the text of the Constitution and structure as well that when we're talking about outward facing foreign affairs, including treaties but also war, the president has very broad powers, and that's what we want, and that's something that I think was the Founders’ design.”
The president also issued an executive order that temporarily suspended immigration into the United States due to COVID-19. It also halts the issuance of green cards for 60 days, but contains a range of exceptions, including exemptions for health care professionals, immigrants already in the United States, and those seeking temporary visas.
Yoo and LaCroix commented on how that executive order squares with a Supreme Court decision that shaped modern understanding of presidential power— Youngstown Sheet & Tube Company v. Sawyer (1952). In Justice Robert Jackson’s famed concurrence in that case, he laid out three categories of presidential action: when the president is acting with authority granted by Congress; when the president is acting when Congress has been silent on a matter; and when the president is acting contrary to Congress. The first category is most likely to be upheld by the Court, with the second more of a gray area, and the third less likely.
Yoo said he believes the executive order on immigration likely falls within the first category, given that Congress allowed the executive branch to exercise certain powers over immigration in two statutes. One is the law that was at the heart of the legal fight over the president’s travel ban. The other is the Public Health Services Act, passed in 1944. It gave the department which is now the Department of Health and Human Services “the power to ban anyone from traveling into the country or even across state borders, who might reasonably be believed to have a communicable disease,” Yoo said. “So certainly you could prevent anyone from entering the country based on that.”
Yoo did add that the “the harder question is this question about the process for moving people from visas to Green Card status,” he said. “If you look at the statute, it doesn't have, as far as I can tell, anything that says the president can just deny people visas based on this health emergency.”
If the president does that, it may fall into a different Youngstown category, Yoo said.
LaCroix said she thinks there is a “pretty good argument” that the president may actually already be in Youngstown category three, because she does not believe the Constitution or the laws allow him to shut down borders under current circumstances, or to deny those who have seek to change their status from visa holder to Green Card.
“By not enumerating that among the basis of the permissions it gave the president, it impliedly disallowed him,” she said. “I think it just doesn’t fit into any power that we can find again in the text or the structure of the constitution, and that's very, very problematic. … A freestanding power to shut down the borders, unless we're talking about actual war, I just think does not exist.”
LaCroix also noted the more practical concern that those detained under this executive order could end up becoming infected with coronavirus at detention centers.
She and Yoo also offered their takes on the president’s comments about protestors in states like Michigan and Ohio who oppose stay-at-home orders.
LaCroix said such comments were a sharp departure from how the Founders envisioned the president’s role and the people’s loyalties—as primarily to the states as opposed to the national government:
“Trump is basically saying, ‘I, the president, now say to the people of the undifferentiated nation, I guess you don’t have to listen to what the duly constituted government of your state says.’ And I think that would have been unintelligible [or] terrifying to most of the Founders because I think the people who were worried about the power of the executive worried precisely about the fact that he would have this ability to exert control [and] demagogic power over the people. And so the response was . . . the states will create this counterbalance to whatever power the executive branch and the national government as a whole can accumulate.’ . . . [T]he idea of a president doing this would have struck people across the political spectrum in the founding period as very frightening. It’s very sort of counter-constitutional and the kind of thing that they worried about with the king back when they were in the British empire.”
Yoo similarly noted that it’s hard to find a historic analogue for a president encouraging protestors in this manner, but noted that the protestors are within their First Amendment rights.
He also added that it may be more important to focus on the president’s actions rather than his words.
“I think there's a big difference between what the president says and then what he ends up doing,” he said. “When you look at the executive orders [he’s issued during the pandemic], when you look at actual things they do, they seem to be more consistent with this kind of idea that Alison and I are talking about which is, the states are the ones who are the ones on the front lines, they're the ones who are setting policy about public health, and the federal government and the president is playing a supporting role.”
LaCroix concluded that she hopes people will see the value of the roles of various levels of government.
“What I think we are seeing already, is that people are feeling pro-governmental, pro-governments, plural—this idea that it's good to have multiple levels of government, especially if you think not everybody is going to be on the same page or frankly some people might not be pursuing the correct agenda,” she said. “And yes, there's conflict, but I think it is a vision that is consistent with the Founders’ view, but it doesn't have to be to be useful. I think we're seeing the value of governments, plural, and that’s, I hope, one of the values that people feel has worked pretty well in this crisis.”
