“It’s almost too easy,” says Christian Schneider, “but if Obama had said ‘the authority is total’ about presidential powers, Sean Hannity would have spontaneously combusted.”
Well, in fairness, so would I. And so would you. And we all would have been right to do so.
Between this nonsense and his tweets this morning, I’m dying to know if his lawyers are BSing him behind closed doors about his authority or if he’s just winging it and expecting them to scrape together some dubious Article II justification later.
Fortunately for him, his AG may be the one lawyer in America actually willing to entertain this argument.
TRUMP: “When somebody is the president of the United States, the authority is total. And that’s the way it’s gotta be. It’s total.” pic.twitter.com/zIuiBn1Mhw
— Aaron Rupar (@atrupar) April 13, 2020
John Roberts is at home right now, rubbing his temples at the prospect of Trump and Barr asking for a ruling that the president can claim emergency authority during a pandemic to do pretty much anything he wants. That decision should be 9-0. But it won’t be.
REPORTER: In regard to some of your tweets earlier today, what provision in the Constitution gives the president the power to open or close state economies?
TRUMP: “Numerous — numerous provisions. We can give you a legal brief if you want.” (He never named one.) pic.twitter.com/nMzmbgEGYJ
— Aaron Rupar (@atrupar) April 13, 2020
If his authority in emergencies is “total” — and again, it isn’t — how can he say “I don’t take responsibility at all” when asked about the early failure in testing?
Someone on his staff needs to explain to him that claiming “total authority” is going to make it much harder for him to scapegoat Cuomo and other governors for the sustained economic pain when they refuse to reopen on his timetable. Which is what’s coming, and not just among Democratic governors:
[New Hampshire’s Republican Gov. Chris Sununu] noted that it was his local government’s decision “through executive order” to shut down nonessential businesses, transition restaurants to takeout only and ban gatherings of more than 10 people. “All these executive orders are state executive orders, and so therefore it would be up to the state and the governor to undo a lot of that,” he said…
Later on CNN, Maryland Governor Larry Hogan also disagreed with the president’s assessment.
“Well, it’s not my understanding of the Constitution,” he said when he was asked about Trump’s remarks on Twitter. The Republican governor noted that his state was happy for the federal government to “weigh in” and would “love to have the president’s cooperation,” but he said the decision to reopen would come down to “individual governors.”
“Governors made decisions to take various actions in their states based on what they thought was right for their state, based on the facts on the ground, talking with doctors and scientists,” Hogan said. “And I think individual governors who made those decisions will have the ultimate decision about what to do with their states.”
The fear here isn’t that Trump’s going to win emergency authority in court to order the states around — I hope. The prospect of him wielding emergency powers during a pandemic that’ll last a year or more is too nutty to contemplate; one’s mind can focus on only one country-wrecking calamity at a time. The fear is that he’s going to create a stand-off with governors and doctors who are trying to do the right thing by their people in waiting to reopen until conditions are safer and the economic reboot seems to be more durable. Some people won’t know what to believe, with the president telling them it’s “safe enough” and their governor saying “nope.” Others will let pure partisan idiocy guide their judgment and decide that it’s time to go to work or stay home depending on what their team’s personal tribal authority says. This isn’t an issue that should be forced: Governors and mayors have the final say, and the White House should be clear on that even when issuing its new guidance. But it won’t be. There’s no problem so terrible that Trump can’t needlessly make it worse.
Update: He’s already lost Turley.
Pres Trump stated that “When somebody is President of the United States, his authority is total.” The Constitution was written precisely the deny that particular claim. It also reserved to the states (& individuals) rights not expressly given to the federal government.
— Jonathan Turley (@JonathanTurley) April 13, 2020