President Donald Trump is certain that he can reopen the country and relax state-level social distancing orders whenever he sees fit.
“For the purpose of creating conflict and confusion, some in the Fake News Media are saying that it is the Governors [sic] decision to open up the states, not that of the President of the United States & the Federal Government. Let it be fully understood that this is incorrect,” he tweeted. “It is the decision of the President, and for many good reasons.”
The U.S. Constitution and Supreme Court precedent say otherwise. For starters, quarantines and other public health directives fall under “police power,” which is distinctly designated to the states. The Supreme Court confirmed in 1824 that quarantine laws fall under state purview.
The federal government’s powers include printing money, regulating commerce between the states and between parties outside the U.S. and those within the U.S., and waging war. It cannot force the states, which are expressly granted their own sovereignty by way of the 10th Amendment, to reopen their economies. Over at National Review, attorney John Yoo—no stranger to arguing for the federal government’s power—notes that the authority to regulate commerce does not include the ability to speak it into existence:
Congress can control commerce that crosses state lines, and even prohibit wholly intrastate activity that affects the national markets. It cannot, however, force individuals and businesses to engage in business in the first place. In NFIB v. Sibelius (2012), the Roberts Court blessed this limit on federal power when it held that the Affordable Care Act could not require every American to buy health insurance. “The power to regulate commerce presupposes the existence of commercial activity to be regulated,” Chief Justice John Roberts wrote for a majority of five conservative Justices. “If the power to ‘regulate’ something included the power to create it, many of the provisions in the Constitution would be superfluous.”
Trump seems convinced that he has both the power and the responsibility to restore economic normalcy. “We’re opening up this incredible country. Because we have to do that. I would love to have it open by Easter,” Trump said in March. Public health officials and researchers responded that such a move would be disastrous for flattening the curve, prompting his administration to extend social distancing guidelines through the end of April.
Even if Trump had not extended federal social distancing guidelines, many states certainly would have. New York is developing its own reopening strategy in partnership with several neighboring states, and California is leading a similar initiative with its geographic neighbors. Trump may ultimately bless these efforts, and even attempt to claim credit for them, but he is not practically or symbolically leading them.