We are witnessing large expansion of executive power. And President Trump is not the only executive power grabber. In response to the COVID-19 pandemic: Governors and mayors across the country are testing the limits of their power. President Trump closed borders and travel to the United States from foreign travelers. Governors implement measures restricting the movement of visitors traveling into their states, along with orders restricting the movement of their own citizens, while foreclosing the operations of nonessential businesses. Some governors have sought to postpone elections. In fact, state and local executives have urged more than “265 million people in at least 32 states, 80 counties, 18 cities, the District of Columbia and Puerto Rico to stay home.” Although needed, these are not the actions you expect from a capitalistic republic like America.
President Trump contemplated banning interstate travel to and from the New York metropolitan area and some areas hardest hit by COVID-19. This caused a back lash from many, including New York Governor Andrew Cuomo who questioned the legality of such an action.
Well, can the President of the United States restrict the movement of citizens, banning interstate travel to a state or intrastate travel within a state? Can the president issue a national stay-at-home order? If the president cannot, why can they not? If the president can, what else does the president have the power to do? Does the president have the power to seize the private apparatus of the country—utilizing the Defense Production Act, even if we are not in a typical armed conflict? What does federalism mean in a pandemic?
I have wrestled with these questions for weeks. But America has wrestled with these questions since her creation—how much power can and should the federal government (particularly the president) exercise over the states? This quandary divided the country into our first political factions: The Federalist and the Anti-Federalist; federalism versus states’ rights; a big government versus a small government. The core of this debate still rages today.
Before discussing federalism and how it manifests today: I think it important to conceptualize how colonies operated; colonies were their own sovereigns, with their own government, currencies, and army. The country’s youth provided the opportunity to amalgamate states (some of which now have the same or larger GDPs than a number of countries) into one country. But this forced tradeoffs. And the tradeoffs are the birth of the question and the source of the answer to how much power can and should the federal government exercise over states—the constitution.
In declaring independence and forming one federation of states and a nation, states had to give up power that was then retained by the new federal government. The Constitution delineates these powers, and the 10th amendment dictates that all powers not delegated to the federal government are reserved for the states—creating an external limitation on the federal government’s power over states.
The Constitution outlines most of the rules, but its language is not always as clear as each state shall have two senators chosen by the state’s electorate. But that is the beauty of the third pillar of the federal government—the Supreme Court. In theory: Supreme Court justices are there to “call balls and strikes”—deciding how the constitution requires resolving a specific case or controversy.
In Printz v. United States, the Supreme Court declared it unconstitutional for the federal government to commandeer state governments—forcing them adopt and enforce federal law. The federal government only has the power conferred to it in the constitution. And it cannot regulate activities traditionally done by states.
Our framers, however, vested immense power into the executive, because they believed the president was best situated to act in the nation’s interest. Thus, the president’s powers are heightened when acting in the national interest—especially during war time.
Some states have not issued a stay-at-home order. But COVID-19 is aggressively unconcerned with a states’ borders. So, if action or inaction of one state endangers the entire country—a proper conception of federalism must advance the national interest, not constrict it.
At the end of the day: The president must do everything in their power to preserve and protect the nation. This may mean grabbing extensive power; an amount of power that I or others may not be comfortable with (particularly if you do not trust the president). But, alas, elections have consequences.
Just as President Lincoln, through executive action, revoked civil liberties: Responding to national emergencies often forces a President to take unconventional actions. In the coming weeks, President Trump may decide to issue a uniform national stay-at-home order that conflicts with each state’s current policy. Or he can decide to open the economy up before states want to. If he does: Americans’ choice (on election day) to ratify or reject his decisions will reconstitute our notions of how executive action’s comport with federalism.