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.
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| 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!”
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