Analysis: Can Trump order states to reopen?

News 12’s Stone Grissom examines the issue from a constitutional perspective.

News 12 Staff

Apr 15, 2020, 1:18 PM

Updated 1,461 days ago

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By Stone Grissom, News 12
Video: Dr. Anthony Fauci says health officials could consider measures to reopen the country next month.
Can a president order a U.S. state to reopen its economy when the governor has shut down a local economy?
The simple answer is the Constitution and structure of our government doesn’t give the president the power to do so.
To understand this, let’s look at how our country is designed. First, the United States is a “federalist” government, which simply means power is somewhat independent between the federal and state levels. For example, the FBI doesn’t have the power to investigate state crimes and the NYPD doesn’t have the power to investigate federal crimes. They’re independent. Second, the Constitution is the supreme law of the land. No state or federal statute can contradict or supersede it.
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This leads to the Bill of Rights. Our founding fathers were very worried about the federal government intruding upon or even taking over the rights of the states, so they put the 9th and 10th amendments into the Constitution. 
The 9th basically states that the rights of individuals are not limited to what’s listed within the Constitution. There may be more rights people have that the document failed to list. The 10th says the opposite about the “federal government.” It states the federal government only has the powers that are “actually” listed in the Constitution. If it’s not in the document, the federal government can’t do it.
It’s important to note that the application of the 10th Amendment is not bound to politics. Both parties have attempted to supersede the 10th Amendment. In the 1950s, the Supreme Court ruled that Democratic President Harry Truman couldn’t take over the U.S. steel industry during a national emergency because the 10th Amendment didn’t grant him such power. 
In the 1990s, the Supreme Court cited the 10th Amendment when it ruled against President Clinton when he attempted to make the states use local law enforcement to run background checks on anyone purchasing a gun.
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In short, a federal official (the president) cannot order a state to do something unless the power to make that order is explicitly granted in the Constitution. Maintaining the health, safety, morals and general welfare of the people of our country isn’t a power granted to the president. It is the responsibility of the states. That’s why schools are locally run, vaccination decisions are made on a state level, etc. 
In fact, looking at our nation’s history, the individual states, not the federal government, led the responses to outbreaks of yellow fever and Spanish flu.
Even today, disaster response and aid are normally state led and federally supported. The federal government can certainly issue “guidance” and “recommendations,” but it cannot override a particular governor’s stay-at-home or social distancing orders unless we, as a nation, amend the Constitution to include those powers.
News 12 anchor Stone Grissom is a former trial attorney, specializing in civil rights and the 1st Amendment. He earned his law degree from the University of Notre Dame Law School and was awarded the Louis A. Powell Medal for Excellence in Trial Advocacy by the American College of Trial Lawyers.


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