Yesterday, the President upset various professionals with this statement:
I would to have it open by Easter. I will — I will tell you that right now. I would love to have that — it’s such an important day for other reasons, but I’ll make it an important day for this too. I would love to have the country opened up and just raring to go by Easter. [whitehouse.gov[1]]
He thinks the near-term is a bright future; meanwhile, his own Surgeon General has suggested that this week may see a horrific uptick in infection counts. The various governors have protested:
Governors across the nation on Tuesday rejected President Donald Trump’s new accelerated timeline for reopening the U.S. economy, as they continued to impose more restrictions on travel and public life in an attempt to curb the spread of the coronavirus.
The dismissal of Trump’s mid-April timeframe for a national reopening came from Republicans and Democrats, from leaders struggling to manage hot spots of the outbreak and those still bracing for the worst. Maryland Gov. Larry Hogan, the head of the National Governors Association and a Republican, called the messaging confusing since most leaders are still focused on enforcing the restrictions, not easing them. He accused the White House of running on a schedule made of some “imaginary clock.” [AP]
I think Governor Hogan should call on the RNC to unilaterally upend the primary results for the GOP and declare Trump unqualified and unacceptable, but that’s just me being a drama queen.
So can President Trump “reopen” the country the week of Easter? Here’s Professor Chesney on Lawfare:
2. No, the president cannot simply order state and local officials to change their policies
Here we have issues that fall under the headings of both federalism and separation of powers. Let’s start with federalism.
Most readers will appreciate this already, but it needs to be said: Our constitutional order has a federal structure, meaning that (a) federal powers are supreme, yes, but limited in scope and (b) the state governments are independent entities, not mere subordinate layers under and within the federal government (that is, the federal-state relationship is not similar to the way that counties and cities are subordinate layers under the state governments).
What follows from this? The federal government cannot commandeer the machinery of the state governments (or, by extension, of local governments). That is, the federal government cannot coerce the states into taking actions to suit federal policy preference. See, e.g., New York v. United States and Printz v. United States. And so, the federal government cannot compel state and local officials to promulgate different rules on social distancing and the like.
And the Executive has no authority, constitutionally or statutorily, to override State officials.
So what should we expect? Chesney suggests a lot of pressure from Trump, both directly and via his base. Governor Walz of Minnesota just put in place a shelter in place order to last two weeks, so it doesn’t seem likely we’ll be back in full economic production mode by Easter.
But we may be mourning our dead. I hope not, though – supposedly, Minnesota is doing quite well at staying away from each other.
1 If you haven’t seen or read an entire news conference with Trump, this one is fairly salutary in its incoherentness. Give it a read.
