TRUMP GETS A CIVICS LESSON ON THE VIRUS: HE’S NOT KING

As the nation takes tentative steps toward re-opening after the coronavirus lockdowns

instituted in March, a debate has developed over both when that re-opening should occur and who can order it. President Trump has apparently backed off his initial claim of “absolute authority” in the matter. Governors and local

officials like mayors and county executives, who ordered the shutdowns in the first place will decide when and how businesses and public institutions re-open.

The issue prompted us to review the constitution’s Tenth Amendment, which reads:

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.

Our Federalism

The Tenth Amendment represents one of the best examples of what constitutional scholars and lawyers call “our federalism.” Because the United States is and always has been, such a diverse place, a one size fits all government probably never would have worked. North Dakota’s needs and California’s are not the same. The founders recognized that and set up a system that gave the federal government certain responsibilities and left many others to the states.

              

Two presidents represented well the pros and cons of this division. Thomas Jefferson

(president from 1801-09) barely tolerated the idea of a federal government. He wanted the national government involved only in defense, foreign policy, a post office, a common currency, and a few other limited

functions. Theodore Roosevelt (president from 1901-09) saw things much differently. He viewed the federal government as essential in making people’s lives better through conservation measures, protective labor laws, and business regulation. The constitution, in Theodore Roosevelt’s view, served not just as a limit on government, but as a proactive part of an effectively functioning democracy. 

   

While progressive governors (Democrats and a couple of Republicans in blue states like Maryland and Massachusetts) have argued most stringently for state authority in the pandemic,  historically the shoe has been on

the other foot. Before the civil rights era, southern conservatives (they were Democrats then, but they’d be Republicans now) railed against incursions on state authority by the federal government. These governors didn’t want federal intervention that protected blacks

seeking school integration, access to public accommodations, and voting rights. They vigorously promoted the rights of the states and claimed the constitution didn’t give the federal government the authority to do those things.

Trump in White House, Photo Courtesy of Fortune.com

Now, with Trump in the White House, some conservatives, anxious about getting the economy re-started, would like nothing better than a blanket order from him

ending business lockdowns and limiting social distancing. Trump, however, appears to have now realized (1) he’s not king, and (2) taking on the power he once claimed might come with a price.

Trump’s Dilemma

Trump has never shied away from taking every bit of power he can get. His ill-advised claim that he could order the economy opened finds no support in the Tenth Amendment, or anywhere else in American law. More importantly from his perspective, if he could exercise such authority,  it might

come back and bite him if reopening the country early proves the flawed policy many epidemiologists and other medical experts predict. That might further imperil Trump‘s re-election chances.

As it stands, with the governors making the decisions, Trump gets criticized for his lack of a coordinated, effective federal response to the virus. With responsibility for closing the country – and reopening it – resting with the governors, Trump can deflect blame if things go wrong.  He apparently calculates that should the country reopen too soon and the virus roars back, the governors who made such decisions will get blamed, not him.  But, because most Republican governors are taking their cues from Trump about early openings, he still may get blamed should those decisions prove faulty.

Trump might find himself attacked for his slow, ineffective response at the outset (including bogus claims in January and February that the virus was “under control”). He can more easily deflect the blame for that than he can for a new pandemic resulting from a pre-mature reopening.

Epidemiologists and other medical professionals harbor great fear that a premature re-opening could result in re-

emergence of the virus in the fall, putting the country right back where it was in March – facing a massive challenge in its health care system and seeing a staggering number of deaths, particularly among vulnerable populations.

These experts will likely stand by their advice

that business can’t re-start until much more testing occurs and the nation employs a comprehensive system for tracking who has the virus and who has acquired immunity. That means Trump would

benefit from the deniability that will come with leaving the re-opening decision to the governors.

Trump, it turns out, needed the civics lesson

he got after standing out on that limb and falsely claiming “absolute authority.” Walking back his claim of total power might, however, have come too late. That’s what the public first heard and that’s what it may remember. The notion of being careful what you ask for might be Trump’s undoing. In the words of the great Scottish novelist, playwright, and poet, Sir Walter Scott, “Oh, what a tangled web we weave when first we practice to deceive!”  

    

TRUMP AND A CRAZY LITTLE THING CALLED “SIGNING STATEMENTS”: ANOTHER REASON FOR VOTING

In the American system, Congress passes laws,  the president signs and carries them out, and the courts interpret them or

determine if they’re constitutional, right?  It turns out it’s not quite that simple. Thanks to signing statements, presidents may put their thumbs on the scale and say more about what a law means, in practice, than does Congress.

 

President Trump exerted that kind of presidential primacy in connection with a key portion of the $2.2 trillion economic stimulus package aimed at helping the nation through the current coronavirus pandemic. Congress

passed that legislation March 27 and Trump signed it the same day. Hours later he released a signing statement indicating he doesn’t intend on complying with all the provisions of the law that would assure transparency in the $500 billion part of the legislation aimed at helping corporations. So, what’s a signing statement and can Trump do what he said he’d do?

A Tradition from Nowhere

Signing statements express a president’s view of the constitutionality of specific legislation or how his interpretation of the legislation will guide enforcement of it or its

anticipated impact. They date back to James Monroe’s presidency. Ronald Reagan rapidly expanded its use in the 1980s. The Gipper issued 250 of them. In only one term, his successor, George H.W. Bush, issued 228. Bill Clinton

issued 381 during his eight years in the White House, Barack Obama 37. Historians now regard George W. Bush as the king of signing statements. Though he issued only 161 separate signing statements, he used them in challenging over 1000 provisions of various laws. The great classicist and historian Garry Wills once told an audience the younger Bush challenged more provisions of laws through signing statements than all his predecessors combined.

 

Despite this history, the federal constitution does not include a signing statement provision. They’ve just sort of become part of the legislative process. Members of Congress and others have challenged the actions presidents have taken through signing statements. Such challenges assert the president acted in a way at odds with the intent of Congress in passing the law at issue. The challenges have a mixed record, with the outcome of the cases turning on whether the court concluded the president did or did not enforce the law as Congress intended. Courts have not, however, declared the practice of issuing and using signing statements unconstitutional. 

  

Trump and the Stimulus Legislation

Trump said his administration wouldn’t treat the stimulus legislation as permitting the inspector general provided for in the bill (also known as  the SIGPR) to issue reports to Congress without his approval. In other words, the special inspector general couldn’t give Congress potentially damaging information about how the $500 billion corporate relief part of the package is being

spent unless Trump personally approved. Congressional Democrats and watchdog groups fear much of the $500 billion will get used by corporations for things like stock buybacks and executive bonus payments, not worker salaries as Congress intended.

Trump’s signing statement flies in the face of

the transparency congressional Democrats, in particular, fought for in passing the bill. Many in Congress don’t trust that Trump and his Treasury

Secretary, Steve Mnuchin, will make sure the money benefits workers, not corporate executives as occurred with TARP money during the Great Recession of 2008.

               

Certainly, presidents have used signing statements for reasons that don’t suggest evil. These include telling the public what the president expects as a likely effect of the legislation or guiding subordinates in carrying out the legislative purpose. Presidents have also used signing statements in advising the public he views some part of the bill as unconstitutional and expects a court challenge. Trump, however, suggested none of these things in his statement. He just made clear the public will find out only what he wants it to find out about the $500 billion. 

     

What to Do

When someone with dishonest motives occupies the White House, the temptation

arises to say that the courts or Congress or someone should get rid of signing statements. After all, they have no textual foundation in the constitution and Congress has never enacted a statue providing for them. 

History, though, shows that presidents in both parties use them, perhaps for good reason.

Signing statements may, under certain circumstances, function as part of our system of checks and balances. Congress, for example, could go off the deep end with ill-advised legislation a president prefers not vetoing because it contains provisions

addressing a serious national need. A signing statement, and subsequent presidential action, limiting the negative impact of the bad parts of the legislation may represent the best course for the country. Perhaps signing statements aren’t all bad.  We believe the country can take some

comfort in knowing that the courts remain the final arbiter of any action the president takes pursuant to the execution of any signing statement.

The presence of signing statements in our system illustrates the power of the presidency

and emphasizes the importance of getting right who occupies that office. In November the voters weigh in on who can issue signing statements the next four years. As we’ve said before, we can’t mess this up.