Andrew Cuomo’s correct about this, but one does have to stand in awe of the strange new respect emerging for the good ol’ Tenth Amendment. The governor of New York explicitly cited that part of the Constitution as well as its authors while arguing on CNN’s New Day that Donald Trump does not have the authority to order New York to re-open for business. If he issued such an order before Cuomo thought it was appropriate, “I wouldn’t do it,” he tells Alisyn Camerota:
— New Day (@NewDay) April 14, 2020
Ah, federalism — getting a second look from Democrats and liberals since November 2016. That’s not to say Cuomo’s wrong or that he’s saying anything worthy of criticism here. Far from it! He’s very much correct that presidents do not have the authority claimed by Trump yesterday on Twitter and in the briefing. We should only hope that it will become a trend, especially the new embrace for the Tenth Amendment and state sovereignty. We could start with ObamaCare, for instance, then education, and work outward from there.
Some argued yesterday that Trump’s influence might be longer than his constitutional authority. The federal government controls a lot of spending within states, and presidents do have some influence on that, but it’s not plenary, and it originates on the other end of Pennsylvania Avenue. A few pointed to the 55 MPH speed limit and the 21-years-old drinking-age threshold imposed on states during the 1970s and 1980s as examples of how presidents can make governors dance to their tunes. However, both of those restrictions came from Congress, and the authority to restrict spending was theirs, not the executive. The double-nickel limit was part of the 1974 Emergency Highway Energy Conservation Act, and the drinking age was made national in the National Minimum Drinking Age Act of 1984. Both acts threatened to withhold highway funds from non-compliant states, threats that would involve the executive but flows from Congress’ power of the purse.
Note, though, that Cuomo’s pushback to Trump is very tailored to this issue. He (mildly) praises Trump for acting in a bipartisan fashion thus far, and advises him to keep it up. “Stick, then,” Cuomo says, “with the cooperative theory rather than the dictatorial theory.” That’s really about the only theory that Trump has, whether he likes it or not.
Update: What in the world is this supposed to mean?
Uh, it’s already happened, about 232 years ago or so. Someone desperately needs a civics lesson, so here’s one from Andy McCarthy this morning. Trump is flat-out wrong here, but McCarthy also reminds Cuomo that he’s not exactly on his own either — and that both men have bosses over them:
The president can no more order the economy to reopen than he could shut it down — he can’t, and didn’t. At the same time the states, notwithstanding their presumptive authority over their internal affairs, desperately need federal resources to fight off COVID-19. State governors have no real choice but to cooperate with the president — they have to follow federal guidelines if they want access to federal funding and other vital assistance (e.g., the U.S. Army Corps of Engineers’s impressive ability to build up hospital capacity).
To summarize, the federal government is extremely influential, but the president could neither open nor shut down the economy without state cooperation. For their part, the states’ capacities in a crisis such as the coronavirus epidemic would be overwhelmed without the federal backstop. And then there is the element government officials at every level tend to forget: In this republic, the People are sovereign. No federal, state or municipal government has the power to force people to engage in commerce — although by foolishly over-flexing their regulatory muscles, governments can make productive commerce impractical.
There is a great deal the president and the federal government can do to restore the possibilities of economic life. The state and municipal governments, nevertheless, have much to say about commerce within their jurisdictions — as a practical matter, they have the whip hand when it comes to policing and local regulation. All that said, the nation will only be open for business again if the American people are ready to get back to work. Happily, they are champing at the bit, but they will need to be confident that we are safe before we have any semblance of the world we knew just a few weeks ago.
But, make no mistake: Neither the president nor the governors unilaterally decide when America reopens. They have shared and competing responsibilities, and the most important actor remains the public.
Indeed. And the more orders both issue, the less likely people are to comply willingly with them. That’s another lesson from our founding documents, this one from the Declaration of Independence.