It’s the Worst Possible Time for Trump to Make False
Claims of Authority
He does
not have “total” authority over states.
By Neal K. Katyal
Mr.
Katyal is a law professor at Georgetown.
·
April 14, 2020
I teach my law students that every so
often in the law, the best way to understand the veracity of a claim is just to
say it out loud. They got a great example of this on Monday when President
Trump made a
contribution to the legal lexicon: “When somebody is the president of the
United States, the authority is total. And that’s the way it’s got to be. It’s
total.”
In terms that would even have made
President Richard Nixon blush, our commander-in-chief sounded more like the
leader of some tinpot dictatorship than of the United States.
The design of our Constitution was
designed to rebel against such arrogation of power. Separation of powers and
federalism aren’t fusty concepts designed to please rebellious aristocrats;
they are the living embodiment of our founders’ desire to divide and check
power — not vest “total” “authority” in one person, no matter how wise that
person may be.
That
was the basic genesis of the Declaration of Independence — King George III had
grabbed all the government power for himself. The declaration’s text proclaims
“the history of the present King of Britain is a history of repeated injuries
and usurpations, all having in direct object the establishment of an absolute
Tyranny over these States.” The American Constitution is a self-conscious
reaction to that concentration of power, not a document to mirror and enable
it.
It is true that the Constitution and
laws give presidents enormous powers in defense and foreign policy as well as in
emergencies. Indeed, one other thing I tell my students is that if you are the
president in a time of emergency, it takes real effort to make a claim so
outlandish that it can’t be supported. But Mr. Trump managed to do exactly
that. The 10th Amendment could not be clearer in forming the
flip side to the Declaration’s grievance against King George III: “The powers
not delegated to the United States by the Constitution, nor prohibited by it to
the States, are reserved to the States respectively, or to the people.” And the
health authorities at issue in the response to the coronavirus crisis are the
ones at the heart of state governments — what scholars have called “the police
power” for decades.
You’ve
heard this before — Mr. Trump is asserting powers way beyond the Constitution.
So why is this night different from all other nights? Consider four things.
First, and most important, such
ridiculous assertions of power are distracting sideshows that inhibit true
federal solutions in a time of extreme peril. Instead of focusing on how the
federal government can partner with and help the states, the states have to
deal with someone who spews dictatorial rhetoric rather than constructive
solutions. While that’s always bad government, it’s particularly bad government
during a pandemic. Lives are on the line, every minute matters. And that
precious time is being wasted as Andrew Cuomo, the New York governor, threatened to
sue the administration for trying to supplant the state’s authority, and so on.
Other states take the opposite approach and try to kiss up to the president,
all in the hopes of getting a better deal.
Second,
because Mr. Trump is so flat out wrong about his powers, his comments also
undermine decision-making in states. The decision each state makes to reopen
its economy will be just about the most fraught decision each political leader
will make in that person’s lifetime. To have a president who says he is totally
in charge, when that claim is obviously delusional, makes it harder to
concentrate accountability over those decisions where it belongs, in the
states. As the Supreme Court put it nearly 30 years ago, when it’s unclear who
the decision maker is, “the accountability of both state and federal officials
is diminished.” These are primarily state, not federal, choices. Let’s let them
decide and hold them accountable. The governors made the decision to close
their economies; it’s up to them to decide when to lift those orders.
Third, Mr. Trump’s claims reveal a
selective impotence about his powers. It was just a little over a week ago that
he was saying that he
couldn’t help the states because “we have a thing called the Constitution.”
Indeed, his top lawyers are right now in the Supreme Court saying that
presidents cannot use DACA to protect Dreamers because — richly — that is an
abuse of presidential power. Constitutional authorities aren’t some shell game
or thing to deploy whenever it suits your fancy.
Fourth, it’s hard to find something
more un-American than Mr. Trump’s statement — and the idea that lawyers at the
revered Department of Justice and the White House, as well as members of the
president’s political party, have mostly stood silently by (and sometimes
enabled) such legal views should give every American pause. The point here is
not political: It’s as likely that we will see a Democratic president next year
as a Republican one. Would Republicans really want a world in which a
Democratic president says he has “total” authority — for this Covid-19 crisis
or for any other?
Instead of making foolish
constitutional claims, President Trump should use an awesome power his
predecessors have wielded: the pulpit. If he has a good idea, offer it up to
the states and sell it to the public. Don’t hide behind pretensions of raw
authority. Too many lives are at stake. And at stake is something even deeper:
the idea of what America is.
Neal K. Katyal (@neal_katyal), a former acting solicitor general
of the United States and the author of “Impeach: The Case Against Donald Trump,” is a law
professor at Georgetown.