Not just wrong on the merits, but inexplicable in the implications. The decision to reopen America’s marketplace does not lie with the governors, Donald Trump declared on Twitter, although he works closely with them on that decision. That authority belongs to the president, Trump declared, and called media analyses that focused on the governors’ authority for those decisions “fake news”:
….It is the decision of the President, and for many good reasons. With that being said, the Administration and I are working closely with the Governors, and this will continue. A decision by me, in conjunction with the Governors and input from others, will be made shortly!
— Donald J. Trump (@realDonaldTrump) April 13, 2020
“Maybe he just found out about Wickard v Filburn‘s “creative” definition of “interstate commerce”,” a pal tweeted back sardonically. Maybe that’s it, because the Constitution grants the executive branch no authority over commerce that takes place within the states — and even the very bad Wickard decision requires some tie to interstate commerce, such as pricing concerns. In fact, one extremely senior administration official made that very same point earlier in the month, notes CNN’s White House correspondent Jeremy Diamond:
1. Trump has only issued guidelines urging Americans to practice social distancing & not gather in large groups
2. When I asked Trump earlier this month why he wouldn't urge governors w/o stay at home orders to issue those, he cited the Constitution & claimed it wasn't his role https://t.co/S5pziym1zq
— Jeremy Diamond (@JDiamond1) April 13, 2020
Trump was correct then and wrong now — it’s not his role, and the Constitution doesn’t give him any authority to regulate local or statewide commerce. As Andy McCarthy pointed out last month, Trump does have the authority to close interstate highways and shut down air travel between the states (as well as internationally), two domestic options Trump has mentioned but thus far chosen not to do. Anything else would have to fall to governors, Andy reminded us at the time:
To summarize, although American citizens have what has been interpreted to be a fundamental right to travel between states, the federal government’s very limited power to curb such travel undoubtedly includes authority to prevent the spread of infectious diseases — and COVID-19 certainly qualifies as one. Congress has the power to regulate interstate travel, and it has delegated that power to the executive branch for the purpose of protecting against the spread of infectious diseases.
Consequently, the president does have the power to restrict travel between the states of persons reasonably believed to be infected with COVID-19. I would assume that this means the power to prevent people who reside (or who have recently been present) in “hot spot” areas from traveling from those areas to other states. If that is what President Trump means by “QUARANTINE,” he’s probably on solid ground.
On the other hand, if he is declaring the power to order quarantines within states (meaning, to restrict intrastate travel), that is a more dubious proposition. I would assume that, because the administration has been working effectively with the governors, especially the governors of the states most affected (so far) by COVID-19, the president will make sure to get buy-in from any affected states before issuing an order restricting travel. This is why, so far, he has limited himself to issuing non-enforceable guidance and has not attempted to mandate quarantines.
It’s a Tenth Amendment issue, obviously, but it’s also one that has governed the White House response all along. No one has ordered states to follow the flatten-the-curve strategy; the administration has offered it as a guidance. That’s one reason why criticism over the timing of the shutdown orders misses the mark, because Trump never did have the authority to order them. He had the authority to shut down international travel and exercised it; the only authority he has domestically is strictly advisory, although that certainly carries some political weight.
For that very reason, though, it’s completely mystifying as to why Trump would want to assume that mantle. Governors have not all complied with his administration’s federal guidance; some have gone farther, some less far, although many have more or less adopted the guidance as their own strategy. That, however, puts the political risk on their shoulders, not Trump’s. If Trump wants to recommend a grand re-opening and the governors don’t go along with it, then they will assume even greater political risk. If they follow the guidance but don’t take care to follow any steps in limiting transmission within it, then that’s their risk too.
Regardless of what made Trump offer this argument this morning, it’s flat-out wrong. The sooner he realizes that mistake, the better off he’ll be, unless he wants to assume responsibility for every error made by governors around the country for not having exercised this supposed authority from Day 1.