As the United States seems to begin to flatten its curve of new coronavirus cases, President Trump has claimed he has the authority to reopen the economy and the nation. Evaluating that claim in relation to both presidential power under Article II and state power under the 10th Amendment—professors John Yoo and Alison LaCroix join host Jeffrey Rosen. They give their takes on the president’s claims and conduct in the midst of coronavirus and evaluate what he can and can’t do in light of the system of separation of powers and federalism; comment on whether the president can or should withdraw from the World Health Organization, suspend immigration, and support citizen protests against governors; and place these contemporary debates in historical context.
A term that will be helpful to know for this week—federalism. Federalism is the constitutional division of power between U.S. state governments and the federal government. Professors Yoo and LaCroix detail the history of federalism and how it’s evolved from the founding to today.
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PARTICIPANTS
John Yoo is the Emanuel Heller Professor of Law at Berkeley Law and director of the Korea Law Center, the California Constitution Center, and the Law School’s Program in Public Law and Policy. From 2001 to 2003, he served as a deputy assistant attorney general in the Office of Legal Counsel at the U.S. Department of Justice. His new book is Defender in Chief: Donald Trump's Fight for Presidential Power.
Alison LaCroix is the Robert Newton Reid Professor of Law at the University of Chicago Law School, and an Associate Member of Chicago’s Department of History. Professor LaCroix is a US legal historian specializing in constitutional law, federalism, and eighteenth- and nineteenth-century legal thought. She is the author of The Ideological Origins of American Federalism.
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
Additional Resources
This episode was engineered by Greg Scheckler and produced by Jackie McDermott. Research was provided by Michael Markus and Lana Ulrich.
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TRANSCRIPT
This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.
Jeffrey Rosen: [00:00:00] I'm Rosen, President and CEO of the National Constitution Center, and welcome to We The People. A weekly show of constitutional debate. The National Constitution Center is a nonpartisan nonprofit chartered by Congress to increase awareness and understanding of the constitution among the American people. As the US begins to flatten the curve of new coronavirus cases, the president and governors are debating who has the authority to reopen the country. This debate over the limits of executive and federal power is contemporary, but there have been similar clashes throughout American history. Joining us to dive into the debate about presidential power, federalism and the corona crisis are two of America's leading experts on presidential power and federalism. John Yoo is the Emanuel Heller Professor of Law at Berkeley Law and Director of the Korea Law Center, of the California Constitution Center and the Law School’s Program in Public Law and Policy. From 2001 to 2003 he served as deputy assistant attorney general in the Office of Legal Counsel at the US Department of Justice. His new book is Defender in Chief: Donald Trump's Fight for Presidential Power. John, it is great to have you back on the show.
John Yoo: [00:01:30] Jeff, thanks for having me back. I hope everyone in my hometown of Philadelphia is doing well. Even though I heard the governor tried to close all the alcohol stores. Now that's a constitutional right we can all defend.
Rosen: [00:01:41] Absolutely. Well, we'll look forward to hearing your arguments about the arguments we can mobilize. And Alison LaCroix is Robert Newton Reid Professor of Law at the University of Chicago Law School and an Associate Member of Chicago's Department of History. Professor LaCroix is a US legal historian, specializes in constitutional law, federalism and 18th and 19th century legal thought. She is the author of The Ideological Origins of American Federalism. Alison, it is wonderful to have you back on the show.
Alison LaCroix: [00:02:10] Thank you very much. It's great to be here.
Rosen: [00:02:12] Let's jump in to the question that occupied so much attention last week. The president claimed that he had total authority to reopen the states in the wake of the corona crisis. John, as a constitutional matter, was he correct or not?
Yoo: [00:02:31] No, I'm afraid the president was wrong. He had it right before when he was saying he couldn't shut down all the states and their economies. Which he had just said, I think, two weeks before. Now, 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 a, has Congress given him any sort of general power to the economy? Which it hasn't. And then b, 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. It's called, we call it the police power, these days.
And that gives the state governments the power to control everybody and the conduct within their borders. And that includes the right to close or open businesses based on public health and safety. There are some conservatives who have argued that things like the Defense Production Act, which is a Korean War statute from 1950 could perhaps give the president this power. But if you look at the law closely, it's more about the federal government having, the, war material and armaments prioritized by national industry. But it doesn't talk about overriding state laws that are based on public health and safety just to open up the whole economy at once. So I think I'm afraid, that on this one, I think President Trump got it pretty much wrong.
Rosen: [00:04:17] Alison, your thoughts on whether or not President Trump was correct that he has total authority to reopen the country. And please put that in the context of the history of federalism. In your book, The Ideological Origins of American Federalism, you argue that at the time of the framing, the core of the new federal ideology was a belief in multiple independent levels of government could legitimately exist within a single polity. And this arrangement was not a defect, but a virtue. Tell us about how federalism plays into limits, if any, on the president's power.
LaCroix: [00:04:50] Right. Well, I think that, so I agree with John about the president's, error in making that assertion. And historically speaking, one of the things I argue in my book is that the way the founders developed federalism, American federalism as an idea and as a system of government, was borrowing in some ways from some of the modes of exercising power, distributing between a sort of center and a periphery. Some of which they had some acquaintance with from the British empire. But one of the things they did that was very new and so novel that many British theorists said that it was impossible and couldn't exist, was to say that you could have multiple levels of government within the same system. And that the way to not violate a sovereignty principle, the way to sort of have sovereignty was to distribute the powers of the different levels of government according to their subjects or purposes.
And so one of the things they did was to say in the various parts of the constitution, especially Article One about Congress, "Here are the powers that the federal government and Congress has, and the rest belongs to the states." But then they that in other places in the constitution like the 10th Amendment, most notably, which apply to the entire federal government and sort of say explicit e- enumeration applies including to the president. and so one of the big areas that they then, allocated, or left allocated I think is a better way to put it, to the states, was this police power that John mentioned. And even in the period in the early 19th century when the Supreme Court was starting to hear cases about Congress's power over interstate commerce, and the Supreme Court flirted for several decades with the idea that Congress had exclusive power over interstate commerce. Something they since moved away from. But even then they said the states had this very, very robust body of police powers over public health, safety, morals, welfare.
And so things having to do with running the state economy or state public health were clearly within the domain of the states. Even when federal power under the Commerce Clause, which again is Congress's power, was really at its zenith.
Rosen: [00:06:56] John, help us understand what limits federalism and the 10th Amendment might impose on future congressional actions. Could Congress expand acts like the Defense Production Act to give the president the power to open or close the state economies. And what limits, if any, does the 10th Amendment impose on Congress's ability to delegate emergency power to the president?
Yoo: [00:07:21] It's a good question, Jeff, because it, causes us to see a tension between Alison's point, which is a reminder of what the founders originally thought federalism was, and then how far federal power has grown today under current constitutional law doctrines. So I don't wanna be read, even though I think President Trump was wrong, to be saying that the federal government doesn't have a lot of powers available right now. Under modern readings of the constitution to do a lot with the pandemic, both this one and any future ones. I think primarily it's in the Spending Clause. You can see things like buying ventilators, masks, of hopefully eventually a vaccine and a cure, are primarily gonna come about because the federal government is pouring money into resources which it can distribute and use to support the states or to research labs, universities, even pharmaceutical, companies.
I, but I think the really tough question there Jeff, is what if Congress took its vast power over interstate commerce ... This is interesting because this is one generally that liberals have supported and conservatives have fought. And passed a law that said something like, the Congress delegates to the president power to suppress any state laws that affect or int- interfere with interstate commerce. And bas- basically, the farthest reach of the Commerce Clause we have today. that might go somewhat towards what President Trump's, President Trump thinks he has, but he does not because Congress never passed such a law. But you can see elements of this in two areas. One is the, in the Commerce Clause, we have cases like Gonzales versus Raich where the court said one person ... And this actually, this case like rose just four or five blocks from my [laughing] office. Of course in Berkeley, California. One person grew marijuana in their backyard, of course, and gave it to another person, a small amount. They weren't a drug dealer.
They went buying and selling drugs. And the court said, that actually falls within the Commerce Clause. Because when you add it all up, you aggregate people doing that all over the country, you have a national market for marijuana. And then you have the dormant Commerce Clause, the f-, the negative side of the Commerce Clause where the court goes around today and strikes down laws that it thinks burden interstate commerce. And where they feel the health and safety justifications aren't quite real or quite as important. If you add those two together, it does raise this possibility that you, you know, throw out there, Jeff, that Congress could pass another law that could come clo-, a lot closer to giving the president power to open up or shut down an economy despite what state governors want to do. Now, I think you can see Congress reinforcing federalism, taking account of the kind of state prerogatives that Alison was talking about by having never passed such a law. they probably don't trust future presidents to have that kind of complete power over the economy.
But maybe they might and the k-, if, if you could see like the national pandemic act of 2020 maybe they might pass such a law for the future.
Rosen: [00:10:11] Alison, if Congress passed the national pandemic act of 2020 and authorized the president using commerce powers to open or shut state governments in the wake of the pandemic, would that be consistent with the 10th Amendment?
LaCroix: [00:10:25] Well, it, I'm not, I'm not sure it would. I mean, I think it, it's a great exam- fact pattern for this exact reason. Because, the 10th Amendment sort of says, I think the 10th Amendment is fairly read as operating outside of a lot of the enumerated powers that we think of. So it, it sort of speaks to everything that Congress has as an enumerated power, including the commerce power. and it says all the powers not enumerated are reserved to the states or to the people. and so if we have some sort of intersystem transfer of this kind of power ... Actually it's sort of across branches of government and then intersystem. Which is Congress to the president gives the power for the president to override the governor. So there we've crossed over separation of powers horizontally and then federalism vertically. I think there's a good argument that, that, that somehow overreaches and goes beyond the 10th Amendment. Because it's not clear that Congress has that kind of power or the ability to delegate something that substantial.
And then I think another limitation would be not so much a textual limitation, but something that's grown up in doctrine, in constitutional doctrine. Which is the nondelegation doctrine. And this is basically this idea that Congress is limited in what it can delegate, to typically agencies, executive branch, creatures. And they're only a few cases from the, mostly from the 1930s and the New Deal era. But this is constantly discussed among legal scholars and constitutional scholars as sort of operating as some kind of outer limit. Can Congress give away a power that's this, this substantial? And part of the issues in nondelegation are, if Congress is giving away power and not retaining, well retaining too much of a check over the power. So granting powers to some gov-, executive branch official, but then Congress is retaining some control over that official. So you have kind of mixing of executive and legislative power. But the other thing is the kind of open-ended delegation problem.
And to me, that would be the issue, I think, with the, the national pandemic act of 2020. It would be the kind of, maybe the 10th Amendment violation, but also just the open-ended nature there. To say to the president and possibly all future presidents in perpetuity or until Congress acts, "You have this vast scope of power." I think then, and it would be interesting, 'cause sometimes its conservative scholars who argue for the nondelegation doctrine. Here, it would be a limitation on the powers of if it's the current president, a Republican president. So we would get a kind of scrambling in that way.
Rosen: [00:12:46] Let's turn from federalism to Article Two. John, in your new book Defender in Chief, you note that in the first months of President Trump's presidency, you warned of executive power run a muck. You criticized his claims of the unilateral right to build a wall without congressional funding. His executive order banning travel from Muslim nations, which is, it violated the religion clauses of the First Amendment. And the threat to terminate the North American Free Trade Agreement. more recently though in the book, you say that the president has defended executive power by fighting the special counsel investigation by standing up for traditional executive leadership in foreign affairs and war. And appointing a Supreme Court that could return the constitution to original understanding on questions ranging from governmental power to individual liberties. How, how would you evaluate his conduct under Article Two, during the corona crisis? And are there any other claims he's made that you think represent executive power run amuck?
Yoo: [00:13:46] it's a good question, Jeff. And thanks for, mentioning my, book, which is yet to appear. So you've done a good job reading it before it's even out in print. [laughs]
Rosen: [00:13:54] Excellent. Thanks for sending me to the gallows. [laughs]
Yoo: [00:13:59] [laughs]. And then, you know, it's, this is an interesting, and Alison mentioned this too, this is a interesting intersection of federalism and the separation of powers. Because on the one hand you have, can the federal government as a whole act effectively during the course of the pandemic? And then you have the question of, even if the federal government can do something, has Congress delegated that power to the president or does he have that power himself? So I think there's a big difference between what the president says and then what he ends up doing. And he often makes statements like, "I am in absolute [laughing] control of all economy." Which will come as great news to the chairman of the Federal Reserve. And if you [laughing] remember macroeconomics from college, the chairman of the FED has far more power of the economy than any individual president. So, you know, he says these things, and then sometimes he says things which are correct. I think he correctly said he didn't have the power to issue a uniform lockdown date on the whole country either.
when they, it comes to what they do I think in the course of the pandemic, the president has actually ... And when you look at the executive orders, when you look at actual things they do, they seem to be more consistent with this kind of idea that Alison are, 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 this supporting role. Primarily because he needs, if it's gonna be Spending Clause of, he needs Congress to cooperate with him. To give him the money to hand out to the states to buy ventilators and masks and protective equipment or to subsidize hospitals. I think the point where presidential power Article Two will really, come to the floor will be things that we haven't talked about yet, like foreign policy. What could President Trump do to China? What could he do to the WHO? Could he really cut the WHO off? Could he withdraw the US from the WHO? I think he could.
he has the power to terminate treaties. The WHO is not even, a treaty based and, you know, and it's part of us being part of the UN. But we've traditionally pulled out of different parts of the UN like UNESCO or Human Rights Council, things like that in the past. could ... And this is the part that people aren't thinking about. I hope our country doesn't have to think about this, but it has come up before. What if law and order breaks down in certain parts of the country because of the pandemic? You could see something like a Hurricane Katrina or the, LA riots after the Rodney King verdict. Where you actually saw, the military go into places to try to restore law and order. There's a bunch of statutes which try to regulate this area, like the Stafford Act, the Insurrection Act, the Posse Comitatus Act, which we don't have to think about that often. But you could see if the pandemic got a lot worse, maybe there could be parts of the country that would have that kind of, situation unfortunately.
And then that's when your question Jeff, about what are the president's real Article Two powers, gonna come to the fore? Because presidents from here back to Washington, do make these claims that they have some kind of presidential power to protect the country from some insurrection or from a foreign threat. And you could see people thinking the pandemic, is, what, you know, fill, fits those categories.
Rosen: [00:17:13] Alison, what are your thoughts on some of the examples John mentioned? Does the president in your view have the power to withdraw from the WHO under Article Two? Or would he have the power to invoke the Posse Comitatus Act to respond to what he claims to be a national emergency and threat to national security? And are there any other executive actions that you think might test the limits of his Article Two powers?
LaCroix: [00:17:41] Well, at first I would distinguish between something like the Posse Comitatus Act, which as John said, is a congressional statute. And a claim or and the question whether he can, withdraw from a treaty or a sort of internationally negotiated organization li- like the WHO. So I think in the latter case when we're talking about the treaty and the sort of externally facing presidential powers, those are quite strong. I think there's great, there's, there's very strong Supreme Court case law on these points and, 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, and that's what we want. And that's something that I think was the founders design.
That you, through the 1780s and even earlier, you had this, the colonists, and then founders had this sense that international powers, the great powers of Europe would start picking off the colonies then states if they could. And it might be in the interest of individual states to negotiate some sort of treaty with France or Spain. And it was just confusing for foreign powers. They wouldn't take the United States seriously as a matter of the law of nations. So I think the president is part of that structure and a very important part for all the reasons that Hamilton and others talked about. The sort of need for quick action, the need to move quickly. And, and President Lincoln talked about this in the context of the Civil War and blockades. It's far different when we're talking about a statute that Congress has passed. And then we're asking, does the president satisfy the requirements under Congress's statute? Do we think that what the president is trying to do is supported by the statute?
So I would distinguish between, between those two. and also sort of generally on this power, this question of executive power in the realm of foreign policy, I think we have to watch carefully ... And this again is a caution that comes both from the text of the constitution and from the Supreme Courts cases. We have to watch carefully for the president claiming to be acting in the sphere of commander-in-chief kinds of powers, foreign affairs powers, but not really acting in that sphere at all. And so here of course the, the famous case from, the Supreme Court, the Youngstown Steel Seizure Case from 1952. You know, there, the question was could the president, authorized the secretary of commerce to seize the nation's steel mills? And president Truman argued that the Korean War was part of the backdrop here and it gave him power. And the court roundly rejected that argument. They said, "Yes, wartime, yes steel, but this is an internal labor dispute. So we're not going to take the war justification."
Rosen: [00:20:20] Thanks for that. And thanks for noting the importance of the Youngstown and Sheet Tube case. Listeners, remember the three categories of Youngstown. When the president acts with congressional support, his power is at its highest ebb. When he acts in the face of congressional opposition, he's at his lowest ebb. And when Congress hasn't been clear, he's in the zone of twilight. John, speaking of the zone of twilight, I wanna ask you about the president's order about immigration. On Monday night, the president vowed that he'd suspend all immigration into the US during the coronavirus outbreak. On Tuesday, he unveiled a plan that fell far short of a full ban. He said that he'd signed an executive order blocking most people for 60 days from getting a permanent residency visa or a Green Card. tell us about the order as you understand it and whether you believe that the president has the power to issue such an order.
Yoo: [00:21:13] That's a tough question, Jeff. Thanks for [laughing] sticking me with it. You know, immigration is, law is a really tough area. I think it's only exceeded by tax law as one of the most consuming, consuming and contradictory statutory areas. There's some areas where, Jeff, your question would place the president in category one of Youngstown. Or what Alison was saying where the president is just if, implementing power delegated to him by Congress. So some reports about this ban, would fit there, like preventing just anyone from coming into the country. There's two statutes which allow the president to do that. There's the one that was at the heart of the Trump versus Hawaii case, which was the Muslim ban case. Where the court upheld the first, the third version of Trump's travel ban. Where he banned people from specific countries from entering the country. you may recall in the Supreme Court case, he was accused of having a racist motive 'cause he had picked Muslim countries.
In a strange way, banning everyone from [laughing] entering the country sort of relieves the president of that, accusation. but there's another statute which has even more on point here, which is called the Public Health Services Act, which was passed in 1944. Where actually the Congress gave the department, which is the, 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 believe to have a communicable disease. So certainly you could prevent anyone from entering the country based on that. the harder question is this question about the, process for moving people from visas to Green Card status. What's called permanent re- resident alien ship. This is hard because, 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. But it does talk about people who are inadmissible, right?
So I think the hard, hard question is this. Suppose you're in the country right now, you're already in, so you're not subject to this ban about crossing the border. And then suppose you're here on a visa and you wanna become, you marry an American say and you wanna get a Green Card and then your visa expires. Maybe you are a student, maybe you are here to work for a year, maybe you're here as a tourist. then when your visa is over, you're inadmissible and you can be removed from the country by a statute. And what President Trump's order, as far as I can tell, says this, "I'm just gonna take my time and I'm, I'm telling people to stop processing your effort to stay here longer than your visa would require. And then I can, order DHS to remove you." If he tries to do it that way, then he's kind of in a, he's in category one or maybe category two, what you call Jeff, the zone of twilight.
you know, you and I are old enough, I don't think Alison is to remember watching the black and white [laughing] Twilight Zone shows where I think Justice Jackson ripped this idea off of. so I, because the statutes don't say he can't do this, they don't say you can't slow down or take your time processing Green Card applications. Or maybe Trump is even gonna say, "I, because of COVID, I don't want DHS people interviewing people to process their applications until this is over." But it's kinda like Trump versus Hawaii. It seems like the real intent of what he's doing is just trying to stop people from coming into the country in ways that Congress, you know, has set out by statute. So I could totally see a lawsuit about this. but the problem is, as you said, Jeff, it looks like it's just gonna be for 60 days. And so I can't imagine any lawsuit actually getting all the way to the Supreme Court and resolving this before the order expires of its own terms.
And then I also have a hard time believing DHS is gonna prito-, prioritize trying to remove people like this from the country who have these valid applications out there. When they should be removing people who are convicted felons or any of the other, you know, classification of people who are, are a higher priority to be removed. But it's a great constitutional question because President Trump, if he goes by what he's done in the past of trying to fit what he wants to do into these dark nooks and crannies of our laws that have never really been explored by the Supreme Court before.
Rosen: [00:25:27] Thank you for that parsing of the executive order. Alison, do you believe that the president has the authority to sign an executive order blocking most people for 60 days from receiving a permanent residency visa or Green Card?
LaCroix: [00:25:43] Well, I, I agree with John that in a funny way, this is unlike the, the so-called Muslim ban, in that it's everyone. So, you know, at least, I suppose it is not arguably a violation of the religion clauses because it's across the board. But then we run into these problems and I would think there's a pretty good argument or at least a colorable argument that, that the president is actually in Youngstown zone three. Because we would have, at least arguably, implied disapproval from Congress. If, if all the statutes that exist talk about, people moving from state to state or entering the country, that seems like Congress arguably when it was drafting that statute, did not also talk about people who are applying to change their status from visa holder to Green Card holder, let's say.
And so then one could argue, "Well, Congress didn't explicitly say we don't, want the president to do this when it comes to people applying to Green Cards." But by not enumerating that among the basis of, of the permissions it gave the president, it impliedly disallowed him. And that is the zone, the Youngstown zone three, that became important in Justice Jackson's concurrence in Youngstown and in some subsequent cases. but I think, I think there is this sort of concern here and I, I agree that it's hard to imagine a case getting all the way to the Supreme Court. That said, it's not hard to imagine someone have, someone having a cause of action. So, let's say, you know, they are outrendered out of status because their claims are not being processed, the paperwork is not being processed.
In the meantime they are picked up by ICE or there's a sort of immigration proceeding against them and they end up in one of these immigration detention camps. Where they then contract COVID because the situation and the sort of health and safety, precautions there are just nonexistent. So one can easily imagine a terrible, terrible outcome in a case like this. And I think it would go back to this point, about the president trying to extract powers where there aren't any. By this kind of hand-waving about the federal government has power over immigration. True. But the plenary power doctrine, which is problematic and lots of people think is, is, not really as plenary and not really as much of a doctrine. But still that's mostly about Congress's power, stopping people at the border in time of war. Well, this isn't time of war and this isn't stopping people at the border. So 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.
Rosen: [00:28:11] John, let's imagine that the president signed the executive order that he originally said he would sign and suspended all immigration into the US during the coronavirus outbreak. Would he have the power to do that?
Yoo: [00:28:23] I think he does under the, not even under his presidential constitutional power, but just under these two statutes. The Public Health Service Act and then the, just the Immigration and Naturalization Act. it, the harder question is, what you can do with people inside the country already. But I think he has this statutory power just given to him by Congress. And so Alison is quite right. The Supreme Court has said the power of immigration is plenary to the federal government. And in this case, the notorious Chinese Exclusion Act cases from the late 19th century, the court said and that power goes to Congress. And so traditionally we thought Congress has the power to decide who comes in or out. Even though as we know, the constitutional text only talks about naturalization and doesn't actually talk about border control at all. The court has just assumed, as a sovereign nation we have control over, the federal government must have control of the borders.
There's this interesting question that people have talked about, which is, could the president close the border anyway on his own authority? But in the course of a pandemic, he doesn't need to because the statutes say you can close them for a public health emergency essentially with a communicable disease. Or you can close them for foreign policy purpose when there's a threat to the national security foreign policy to the, the United States. I don't think that's as harder question as, your, what you can do between citizens, permanent resident and aliens and people who are not here legally once they're already over the border. I think that's a much harder question. And actually that's another question where states, to return to your original issue, that's another question where states are really the, again on the, front lines. Because the federal government just doesn't have enough people or personnel and resources to try to apprehend and remove everybody in the country who's here out of status. It's really the states who come into contact.
They're the ones with all the police officers. They're the ones who come into contact with all the, aliens in the country. Just in the course of, you know, enforcing criminal law and civil law. So I, even if the president wanted to remove everybody, the federal government has nowhere near the resources, to do it. If the, if anyone who's gonna come into contact who might have the disease across the border illegally or might be removable, is most likely gonna come into contact with state and local police and public health officials or hospitals, first. And as we've talked about, I think before, state governors and state law enforcement, they don't have any obligation to help the federal government pursue its policies.
You know, Governor Newsome or Governor Cuomo could just say, "I'm going to allow aliens out of status, aliens who came over the border illegally or in violation of the presence order. We're still gonna treat them at our hospitals and I'm gon-, I'm gonna tell our police of public health officials not to tell the federal government they're even here and not to hand them over to the federal government when they leave."
Rosen: [00:31:11] Alison, do you believe that the president has the power to issue the order he initially said he would, banning all immigration during the corona crisis? And flay out the limits of his power or the extent of it once people are already here? could he command state governors to deport immigrants in the country against their will?
LaCroix: [00:31:33] Well, first on the issue of, the proposed first version of the policy, if we can call it that, the articulation at the press conference, barring people from entering the country. I think the existence of that power in my view depends entirely on the acts of Congress, the ones John mentioned. It's not clear in the constitution itself otherwise where the president would have that power solely on his, or I'll say her own, kind of motion. Because the commander-in-chief State of the Union take care of that the laws be faithfully executed. The executive power, even in the broadest version of the executive power, I, I'm not sure it extends that far. So here we, I think the president would really have to argue that he's operating squarely within, a delegation by Congress. And I'm, I'm, I don't see that being the kind of argument that the current president likes to make. "I have this power because someone else gave it to me."
That's sort of not what one often hears coming out of the administration. But I think legally, that's what's required. Otherwise, a freestanding power to shut down the borders, unless we're talking about actual war, I just, I think does not exist. Now, the question then about the states is very interesting. and this crosses case law in the Supreme Court going back to the 19th century and indeed to some of the most problematic and troubling parts of US history, and also modern day so-called federalism revolution cases. But across that wide span of say, 150 years, it's clear that the federal government cannot order the states as states, as sovereigns to carry out its programs. And so the earlier case that I alluded to is Prigg versus Pennsylvania, which has to do with the Fugitive Slave Clause and the Fugitive Slave Act of 1793 which Congress had passed.
And even though in that case, in 1842, Justice Joseph Story says, "Well, it is the case that slavery is an interstate matter. And so even though Pennsylvania tries to protect people within its borders, it has to, allow putative slave owners to come in and, retrieve their slaves or people who they claim are their slaves." But Story said, and this is the important caveat, "State officials cannot be compelled to carry out the federal policy. If the federal government really wants to do this, it has to launch a federal bureaucracy essentially of fugitive slave law commissioners." Which was what the federal government did then in 1850. then much more modern and, far different circumstances, we have cases like, Prince versus US in the early '90s.
And here again, firmly established that the federal government cannot commandeer the executive branch of the states. And there it was to run, background checks and carry out other aspects of federal gun policy. so yeah, there's just no way ... I mean, the states, there's a sort of, and Story said this in Prigg versus Pennsylvania, as a matter of comedy, the states probably should go along with this, but they can't be compelled to. And that's the situation that I think we're, we're in right now.
Rosen: [00:34:39] John, final thoughts if you like on the president's power to commandeer state officials to enforce immigration orders. And then your thoughts on the president's recent support of the anti-quarantine protesters in the states. How does this fit in historically? President Washington, led a militia to put down the anti-whiskey tax rebellion in the 1790s. Even President Jackson ultimately opposed South Carolina's refusal to pay the tariff of abominations. Is there a precedent for a president supporting citizens protests against state governors in their efforts to enforce state law?
Yoo: [00:35:19] And good questions. I think, I don't know if Alison and I would disagree on this. But, the, your first question goes to a, a, a mechanism I think is inherent in the constitution. That really is the check on presidential power, which is the power of the purse. I mean, President Trump can make claims and even throw out plausible arguments about what the president can and can't do. but he can't do it unless Congress pays for it and provides the resources for it. He has a much freer hand in foreign policy because Congress has already purchased for him huge armies and standing navies and air forces and now a space force. and placed relat- almost no restrictions on how the president uses it. But I think Congress is far more careful with domestic affairs. already Congress has the bulk of the power in domestic affairs, but even if the president were to make claims that he can open and close businesses or to go back to, you know, the Antebellum Period, you know, chase down freed slaves and to help hand them over to slave traders or slave bounty hunters.
Congress still c- is only one who can make it happen by appropriating money and creating enough people out there to do it. Without that, I, I agree with Alison, he, the federal government doesn't have the power to force state officials to be drafted or commandeered into enforcing President Trump's orders. Or even President Washington's orders and certainly not President Buchanan's orders before the Civil War or President Lincoln's orders. and so that's almost an inherent check on the claims of presidential power in domestic affairs. it a, this is a very interesting question. Your second point about, yes, you know, pre- as you say, President Trump has been encouraging, these protests in different state capitals against the lockdown orders. Trying to encourage, I mean they're trying to protest to get their states to lift the orders earlier and I think than those governors want.
I, I gotta say, the only parallel I can think of where a president has started using the bully pulpit to encourage people in c-, different states to protest or oppose the state governors, and I think, I think of is maybe Teddy Roosevelt during the Progressive Era or maybe President Kennedy and President Johnson during the civil rights movement. but again, the important thing is, there's, one, one is that I don't think the president has that power to force a lockdown. So but the interesting thing, and I think the interesting constitutional question is, during these lockdowns you're starting to see these claims by businesses and people who claim a constitutional right to somehow be free of shutdown orders. churches, right, are starting to claim they have a right to conduct services in some way. I would think a gun sale, the gun stores are claiming ...
And, and there's actually a case in Pennsylvania right now about gun stores that wanna be able to sell firearms. They claim they're protected by the Second Amendment. The interesting thing is, whether the protesters have some kind of free speech right to protest that can't be completely prohibited by the lockdowns. And so it's interesting like the, the ones in Michigan and some other states, that people are sitting in their cars protesting. So they're saying, "Oh, we can't transmit the virus, we're all in our cars." Right. Maybe that's plausible. The interesting question is, you know, Jeff, I remember as a law student, you wrote a famous note, remember saying that you, even the constitution could not prohibit your free speech rights. I remember that note and you ... I'm, I'm curious what you would think could a state say, because of the coronavirus, we cannot have protests in state capitals 'cause you're gonna spread the virus.
I actually think maybe this free speech right, you know, you have time, place and manner. But what if all the protestors say, "Okay, we're gonna stand six feet apart from each other." Now I guess it's not the most imposing, intimidating protest [laughing] if everyone's standing six feet apart. But I still think you got a free speech right to have the protest.
Rosen: [00:39:01] fascinating. Alison, your thoughts on historical parallels for a president encouraging anti-state protestors, and then maybe take up some of John's points. Could there be a point where bans of protests might infringe the First Amendment? And are any of these other lockdown orders as applied to churches or gun stores, might they raise, constitutional issues if they persisted over a long period of time?
LaCroix: [00:39:33] Well, I would add another historical analogy, or disanalogy perhaps to what, what the president is asserting. So if the assertion is the president is encouraging, people in states to sort of resist or rebel or something against what their governors are doing, there's even another example. but it still goes in the opposite direction even though it involves Andrew Jackson. Which is Andrew Jackson, when elected, goes before Congress in 1829 and he says this repeatedly in the first few years and then in his next term. And this is apropos of the controversy between Georgia and the Cherokee Nation. Trying to remove or compel and then remove the Cherokees and, and certain other Indian nations from Georgia. And Jackson basically said, "It's beyond my control" To sort of [laughing] paraphrase, the famous, I think John Malkovich line in Dangerous Liaisons. Where it's not beyond his control, but he says to the nation, "It's not up to me to control Georgia. I can't tell Georgia that they cannot exert jurisdiction and extend their laws over the Cherokee Nation."
And so even though he says this, no one ... First of all, people might not have believed him, right. Because this, as you said, is also Andrew Jackson who tells South Carolina basically, stop resisting the tariff or we'll send in troops. but I think the point is, that again, he, he's sort of standing behind Georgia even while claiming that he can't do anything. Which is the complete opposite of saying, "I the president now say to the people of the sort of 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, that would have been unintelligible to terrifying to most of the founders. Because I think they, the people who were worried about the power of the executive worried precisely about the fact that he would have this ability to kind of exert control demagogic power over the people.
And so the response was, "No, no, no, no, no. The president's powers are limited. The people's affiliation is to their states. And the states will create this counterbalance to whatever power the executive branch and the national government as a whole can accumulate." So, I think the idea of a president sort of doing this would have struck people across the political spectrum in the founding period. It's 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. on the question of the sort of particular lockdown or shutdown orders, you know, I think this is a, this actually picks up on themes we've been seeing in other areas of constitutional law, even pre-coronavirus. So these questions about when can an individual as a business owner or as a citizen, say, "My particular rights preclude me from having to abide by the, other guarantees, under state or federal law."
So I'm thinking here of the Masterpiece Cakeshop, the, the bakers, people who say, "My religious conviction precludes me from offering services or selling or providing whatever it is to same sex couples." And so I think we can draw lines across various parts of American constitutional doctrine in the last few decades where there is the serious question about the individual rights. But I think what's different in these cases, about the virus and the pandemic, maybe not different but more pronounced, is they pit individual rights or claims of individual rights against state claims of power. And that again seems to scramble what we think of as the usual federalism dynamic of central power versus state power. The state represents the people. Now we have these individual rights claims that, that are actually resisting state power. And again, I think that would have really surprised members of the founding generation. Because I think they would have thought the s-, the states cannot engage in tyranny because they are the people. It's the federal government that we have to worry about. At least before the Reconstruction Amendments, that was the view.
Rosen: [00:43:28] Well, it's time for closing arguments in this very rich, illuminating debate. John, the first final thought is to you. Some progressives have claimed that the president is not acting vigorously enough, exercising his powers under the Defense Production Act and other delegated powers. Do you think the president is acting vigorously enough, and if not, in what ways, should and can he be acting even more vigorously?
Yoo: [00:43:50] I think Trump can't win on this one. There are, liberals who are saying he didn't act vigorously enough in closing down the country and starting to open up the strategic reserves of equipment and, searching for a cure or a vaccine. And then there are conservatives who are saying he's not acting vigorously enough to open the economy and override state governors. I think in this case, President Trump's, words have just outraced what he can actually do. when you look at what he's done, he has pretty much stayed within what the constitution seems to permit him. Which is, exercising powers given to him by Congress to primarily spend money to support the state governors. And that the states are still really the policy makers. and I, let me just, throw out a picture about why I think this is necessarily good. Because I, I think you see in both the conservative and liberal attacks on Trump, this, desire to have a uniform government that can have one single policy.
Wouldn't it be great if we were like France or Japan or, you know, every regional government is really just a sub part of the national government? We could have one lockdown date and then we could have one open up date and everybody will do it the same time. I think our constitution, you know, Alison's right there, the framers wanted to have this federal system which divided authority. I also think it makes good sense as a matter of policy today, even if the framers didn't have this in mind. Because one thing that many people talking about these days about our institutions is this concept of resilience. And if you think about it, the federal, federal system we have is very resilient to shock. Suppose the federal government had gotten it wrong. Many liberals think it did on the shutdown, many conservatives think it's wrong now. That doesn't mean that we're paralyzed. The state governors can impose, impart the policies they want to impart.
They can open up and close. And we see, not just diversity of policies, experimentation, which we're all familiar with. But we also see that one level of government being knocked out or one level of government getting things wrong, doesn't mean the country as a whole gets it wrong. And so I think that's a, a, another, I, I, I think that characteristic of federalism combined with presidential power playing this secondary supporting role, means I think that we might come out of this better than if our government had been a kind of, right, unified all powers or parliamentary national government that many people sometimes seem to favor. But, which I think is not really what the American constitution has in mind.
Rosen: [00:46:18] And Alison, the last word to you, recognizing that some, progressives have said the president hasn't acted decisively enough, using his delegated powers and other conservatives have said the opposite. What are your views? should the president be acting more vigorously or not? And does he have the constitutional and legal authority to do so if he chooses?
LaCroix: [00:46:40] What we've seen so far in the pandemic, I think is, evidence of the, the president and the administration's claims about broad federal power, especially executive power. But then a kind of unwillingness in many cases to deal with the actual nitty-gritty of what federal power would mean on the ground and, and why we want to have power in the federal government. So the example that I find most striking here is the airports, O'Hare here in Chicago, my hometown, but a number of others. When all of the sort of regulations were coming out or the sort of requests or guidance from the US government, the CDC to Americans around the world, and even within the US and shut down orders going into place. So people try to come back to the US, And then they find themselves stuck in these enormously long lines at O'Hare and at other airports. And the mayor of Chicago, Lori Lightfoot said, I mean, in a press conference where she was really on the verge of, I mean, visible frustration and anger at this, said, "The airport is not within the purview of the city of Chicago, even though it's in Chicago. And that's the federal government's space, especially when you're talking about international arrivals." And so there you have all these people who are first of all doing what they're supposed to do, but then they're put into this peril by, by being squashed into an arrivals hall where there aren't enough federal officials and all the rest of it. So it's this kind of dislike or disorganization or even contempt for the nitty-gritty [laughing] of actually exercising federal power where it really counts. And I think that's very disturbing. the only other point I'll, I'll make, and this ties in with, with some of what John just said. Is I think there's a sense in which people wanna view this crisis and say, is this going to lead to people being pro-government or anti-government? And they tend to mean federal government.
But what I think we are seeing already, is that people are feeling pro-governmental, pro-governments, plural. And that goes to this point about the famous laboratories of democracy idea from Justice Brandeis. But 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. So, just the robustness of states and cities. 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. But I think we're seeing the value of governments, plural. And, and that's, I hope, one of the values that people feel has worked pretty well in this crisis.
Rosen: [00:49:20] Thank you so much, John Yoo and Alison LaCroix for an illuminating nuanced and really educational discussion of executive power and federalism in the time of the crisis. Alison, you said the magic word: Justice Brandeis, [which] is a wonderful note on which to end. And John, you summed it up so well. Also, and We The People listeners, please check out both John and Alison's books. John Yoo's new book is Defender in Chief: Donald Trump's Fight for Presidential Power. And Alison LaCroix's book is The Ideological Origins of American Federalism. John, Alison, thank you so much for joining.
LaCroix: [00:50:01] Thank you.
Yoo: [00:50:02] Thank you Jeff
Rosen: [00:50:05] Today's show was engineered by Greg Sheckler and produced by Jackie McDermott. Research was provided by Lana Ulrich. Please rate, review and subscribe to We The People on Apple Podcasts and recommend our show to friends, colleagues or anyone, anywhere who is hungry for weekly constitutional illumination and debate. And always remember, the National Constitution Center is a private nonprofit. These are such challenging times for all of us. And my colleagues and I at the center are so grateful to those of you who have written and sent donations of any amount to support our work, including this podcast. You can support the mission by becoming a member at constitutioncenter.org/membership. Or give a donation of any amount to allow this wonderfully important work and all of my great colleagues who make it possible to keep doing it. and that's at constitutioncenter.org/donate. On behalf of the National Constitution Center, I'm Rosen.
