A day after President Donald Trump asserted he had "total authority" over states in reopening the economy, he backed away on Tuesday, saying governors would make such decisions without any pressure from him.
"They know when it's time to open. I'm not going to pressure them," Trump said at his daily briefing regarding the coronavirus pandemic.
The reversal came hours after Gov. Andrew M. Cuomo said he’d refuse any order by Trump to reopen the economy before it was safe to do so, argued that the executive branch had no authority to do so anyway and implied the Republican was trying to act like a king.
“We don’t have a king in this country,” the governor said. “We didn’t want a king. So we have a Constitution and elect a president.”
Just as quickly, Cuomo declared the debate about powers finished, and that he was ready to work with Trump on moving forward amid the coronavirus pandemic.
Trump, in the morning, compared governors to mutineers. By the evening, he had taken a different approach. He said he would be "authorizing each individual governor, of each individual state to implement a reopening, and a very powerful reopening plan of their state and in a manner that's most appropriate."
"I'm not going to say to Governor Cuomo: 'You've got to open in seven days,' " the president said.
Trump said he didn't see Cuomo's remarks likening him to a king, but said the governor "understands how we helped him."
Trump added: "We'll get along just fine. He understands. We'll get along just fine."
The tumult had stemmed from a standoff between Trump, who wants to move quickly to reopen businesses, and governors on both coasts calling for a deliberate approach that puts health concerns first. The governors on Monday announced coalitions designed to collaborate on how and when to reopen schools and end stay-at-home orders.
Trump said then that the decision was up to him and further asserted that the office of president has “total authority.”
Trump is wrong on the law, numerous constitutional scholars said Tuesday.
“I don’t’ think it’s a particularly hard question. The president clearly doesn’t have the authority to force states to lift lockdown measures,” said Andrew Kent, who teaches and writes about constitutional law at Fordham University Law School.
Not even under emergency powers, statutes or through the Commerce Clause of the U.S. Constitution, Kent said: “It’s not even close.”
It wasn’t just Democrats asserting their authority. Republican governors in New Hampshire and Maryland did so as well. Additionally, Massachusetts Gov. Charlie Baker, a Republican, has joined the East Coast coalition that now includes New York, New Jersey, Connecticut, Rhode Island, Pennsylvania and Delaware. California, Oregon and Washington announced a similar coalition.
The governors have said the last thing they’d want is to reopen too quickly and reignite the virus. Cuomo reemphasized that stance in a series of television news interviews Tuesday.
“If he ordered me to reopen in a way that would endanger the public health of the people of my state, I wouldn’t do it,” Cuomo said, referring to Trump.
At his daily briefing at the State Capitol, Cuomo then pivoted and said Trump was obviously “spoiling for a fight” and that he wouldn’t be distracted.
“I put my hand out in total partnership and cooperation with the president,” Cuomo said. “If he wants a fight, he’s not going to get it from me, period.”
If it came to a legal challenge, the governors are right, scholars said.
“Presidents can tell states what to do and states can just ignore him. We’ve seen that on the issue of sanctuary cities,” said Douglas Kriner, a Cornell University government professor who is writing a book on presidents’ power and what constrains them.
Trying to withhold funds from states that don’t comply with a president’s wishes likely won’t work, Kriner said, citing court decisions in several sanctuary city lawsuits in which Trump tried to block federal grants.
Kriner said Congress has granted the executive branch emergency powers that allow a president to, say, forbid foreign travelers or order private companies to build ventilators to treat coronavirus patients. But that’s different from trying to tell states, for instance, to open schools.
“There is a huge variety of emergency powers that Congress has authorized the president to use over the years, but none of those emergency powers, even in the broadest meaning of emergency powers, grant the authority to send students back to school, to order businesses to reopen,” said James Sample, a Hofstra University Law School professor. “That is the realm of governors, the realm of state legislators.”
A “narrow exception” on commerce exists but is seen to apply to something like a president acting to shut down an illegal work strike, Kent said.
As for “total authority,” Hank Greenberg, president of the New York State Bar Association, said that was settled long ago in the landmark Marbury v. Madison case, which determined the U.S. Supreme Court is the final arbiter of constitutionality.
With Laura Figueroa Hernandez