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Legal Experts Debunk Trump Claim That It’s His Decision to ‘Open Up’ the States

President Donald Trump on Monday declared that he had the authority to override the orders of state governors to “open up” states that have enacted social distancing measures to stymie the spread of COVID-19, a claim that legal experts immediately dismissed as antithetical to U.S. constitutional law.

“For the purpose of creating conflict and confusion, some in the Fake News Media are saying that it is the Governors 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,” Trump tweeted Monday. “It is the decision of the President, and for many good reasons. With that being said, the Administration and I are working closely with the Governors, and this will continue. A decision by me, in conjunction with the Governors and input from others, will be made shortly!”

It was at least the second time Trump has insisted he held such authority. During last Friday’s press briefing, Trump said that deciding when to re-open the country will be “the biggest decision I’ll ever make.”

Attorneys and law professors from both sides of the political aisle were note that Trump’s claim of sole responsibility for deciding when states’ emergency coronavirus orders end runs counter to both the U.S. Constitution and the president’s own approach to pandemic response thus far (in which he’s laid most of the responsibility on the states).

“This tweet is just false. The President has no formal legal authority to categorically override local or state shelter-in-place orders or to reopen schools and small businesses. No statute delegates to him such power; no constitutional provision invests him with such authority,” wrote University of Texas Law Prof. Stephen Vladeck.

“The President can *informally* put pressure on local/state governments,” the constitutional law professor continued. “He can mess with emergency funding. And he can even order the federal workforce back to their offices. But largely because he’s left so much to local authorities so far, this, too, is ultimately up to them.”

Law&Crime analyzed at length Trump’s ability to strong-arm states into getting back to business. That idea is different idea from declaring states “open” regardless of how states feel about it.

Responding to Vladeck, Cardozo Law Prof. Kate Shaw noted that while Trump could announce a “reopening” of the economy, which could have significant consequences on its own, the president has “no actual legal authority to override existing state/local directives.”

Jonathan Turley, a constitutional law professor at George Washington University, said Trump’s tweet was “constitutionally wrong.”

“Pres. Trump’s declaration that he, not the governors, has the power to ‘open up’ the economy is constitutionally wrong,” Turley wrote. “The President has persuasive, not command, authority. It remains a state decision under our system of federalism.”

Former federal prosecutor and CNN legal analyst Elie Honig wrote that Trump was vastly overstating his power as president, noting that “many key decisions about when to resume life as normal are not Trump’s to make.”

[image via MANDEL NGAN/AFP via Getty Images]

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Jerry Lambe is a journalist at Law&Crime. He is a graduate of Georgetown University and New York Law School and previously worked in financial securities compliance and Civil Rights employment law.