As Trump Feuds With Governors Over Reopening, A Look Back At The Power States Reserve

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This article is part of TPM Cafe, TPM’s home for opinion and news analysis.

In recent weeks, state governors and President Donald Trump have seemingly been locked in a duel of press conferences, as they roll out different talking points — and, at times, divergent policies — for tackling the novel coronavirus. In contrast to the President, New York governor Andrew Cuomo claimed full accountability last week for what happened in his state as it battles COVID-19:

This is a companion discussion topic for the original entry at https://talkingpointsmemo.com/?p=1306212
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Can Cuomo stop West Point from bringing back its senior class just because Fat Donnie Three Chins needs his daily dose of adoration? The CIC is exposing them to a deadly virus for a campaign ad.

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" he actually had come around to the more politically astute position. " the governors would be responsible for decisions on how and when to reopen their states,"

IIMHO I would say that was a reality position. Astute , Really ?
Asute and Trump just don’t compute.

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Is Regicide one of those state powers?

Asking for a country.

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Or can the Gov. of NY order the NY NG to erect a cordon sanitaire around the USMA?

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Been some time ago.
Spent some months in Bernalillo County north of Albuquerque in the early-00s.
Like the sun going down-- you could count on the county LEOs to setup their DUI roadblocks on 2-lane roads that were well-trafficked from about 8pm-2am+ every Fri-Sat night. Slowing all traffic to a near halt so much so-- it wasn’t really worth going out and just having a beer socially.

So. Tell me again why there can’t be roadblocks during a pandemic that at least has the virtue of saving lives-- without the inherent fines and lawyer fees?

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My take (arm chair constitutional lawyer, but not my usual area of practice so take it for what it is worth…)

(1) Trump can’t order the reopening of states, nor override their public health orders, he has no general “police power” or “general welfare” power.

(2) Governors can order lock downs, provided that there are appropriate exceptions. My guess is that religious gatherings don’t qualify as exceptions, and so far court’s have backed my view. But in each state it is a question of whether the governor has power to act, it is not a federal issue.

(3) the lock down thought can not restrict fundamental rights in a way that is w/o reason and discriminatory. This is why every court (except two judges on the 5th Cir.) have rejected efforts to restrict abortion.

As to West Point, the issue would be if the state’s action interfered with a federal function. My guess is that Cuomo can’t prohibit what Trump is doing as they are federal employees.

As to roadblocks. They are CLEARLY unconstitutional if not directed to everyone. It is illegal for a governor to (as De Santos did, or RI tried) prohibit those from state A from entering w/o actual evidence they are a threat. Nor could a governor e.g. require residents of NY to be tested upon entering FL but not those from GA (or FL itself).

The big interesting one is if Trump can “reopen” meat packing plants that are closed by local health officers. That poses a really, really interesting question. And it will be litigated as he is trying to exempt the corporations from liablity for the damages they cause. So two questions, can he override local health orders for private businesses (I don’t know, but it is like the Youngstown Sheet and Steel facts, and Truman lost that case, but the question is what he can do with a “emergency” decleration) the second is liablity waiver. That is going to be a hard one, and if they can, then everyone can sue the federal government for their harm. I.e. he can’t make the liability go away, all he can do is assume it.

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WASHINGTON — President Donald Trump will use the Defense Production Act to keep pork, beef and poultry processing plants open.
At the Pilgrim’s Pride chicken processing plant in Cold Spring, MN, Somali workers have refused to come into work. Trump can’t compel them to put their lives in danger. The plant may be open, but running at very low capacity.

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That is the snake in the grass we really need to be watching for.

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My governor backed off requiring masks (homemade/scarves/etc) indoors in public places because he’s “gotten feedback” from people that object to wearing a mask.

Wonder if they got a heads up from Bully Barr that they are on the lookout for this kind of “egregious” requirement or if he’s just scared by tweets from random idiots afraid they are losing their constitutional rights.

DeWine rationalized it on TV because someone’s autistic child would be uncomfortable if he saw masks instead of faces.

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He can close the campus, or individual buildings, as any governor can do if use of the properties constitutes a threat to public health and safety, and he can task the state police or Guard to do it. Even if it’s a federal property, if it’s inside a state it is within the state’s jurisdiction, and each Governor is still responsible for the safety of everyone on the property. Mayors too, and sheriffs in unincorporated areas, as I understand it: any mayor could close any church or other building where activities are taking place that endanger public health and safety. Without such powers, Job #1 of city, and state executives to maintain the peace, subsets of which are the protection of public health and safety, becomes a dead letter, a toothless power. As the article states, political considerations may forestall action, and they can later be sued for overreach, but they can’t be prevented a priori from issuing orders they deem necessary to uphold their responsibilities.

Challenges have been made already on free exercise of religion grounds, but nothing in the free exercise clause grants any right to endanger public safety. If a church were holding gatherings where minors were abused as part of some purportedly religious rite, no one would argue the mayor or governor couldn’t, nor shouldn’t, intervene to stop it, including revoking the building’s certificate of occupancy or whatever other means were required to prevent the abuses.

Other challenges have been made on the 1st A’s assembly clause, but like the “well-regulated militia” clause of the 2nd A, they conveniently ignore the qualifying language, which is that there shall be no law restricting the right to “peaceably assemble”. Since an assembly would pose a health threat to the attendees and the community at large, the gathering would be a breach of the peace, and since that is the basis itself for executives’ police powers, it could be forbidden.

To my eye, these powers are well-established and precedented, the fact that anyone’s at all alarmed at their potential use today only shows that they haven’t been used in recent memory, but the powers inhere to the offices nonetheless. Without them, there’s little point in having an executive in any state or city.

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Thank you for your answers and food for thought.

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Absent an armed insurrection, presidents cannot override any of those.

And, so if a President --aided and abetted by Fox, OANN, and their fellows on social media – provoked an armed insurrection, then he could override the governor’s orders (?)

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The powers reserved to the several states will extend to all the objects which, in the ordinary course of affairs, concerns the lives, liberties and properties of the people…

You can fool all of the people some of the time, Mitch, but you can’t fool the governors.

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